An Audacious Would-Be Immigration Double Play

By David North on August 24, 2015

There's a would-be restaurateur out there who has dreamed up an immigration double play that would cause the senior partners at the Tinker, Evers, and Chance law firm to be green with envy.

I won't use his location, but he has placed the following ad on Craigslist:

Seeking an EB-5 Foreign Investor/Partner

Looking to open a large restaurant concept. ... Need a foreign investor with $5M in funds and ability to bring in labor with him for visas.

So, he thinks he can use the immigration system to bring him both labor and capital, all in one neat bundle. Sorry, that's not the way it works here, short of new legislation, but it is an intriguing — though not praiseworthy — idea nevertheless.

He may also have two different immigration programs mixed in his mind.

The EB-5 program provides an alien with a family-sized set of green cards with an investment of $500,000 through a regional center or $1,000,000 for a direct investment as our man has in mind, and each investment must, at least on paper, provide 10 jobs for residents (not for foreign workers, and not for the family of the investor.) There is no provision for EB-5 aliens to bring in workers with them, just the spouse and the kids.

This program is largely run by the Department of Homeland Security. It gives the investor and family permanent status in this country.

Then there is the E-2 program (perhaps the two similar names explain his confusion). This is a nonimmigrant scheme for treaty investors who are allowed to bring in "essential" workers with them to help run the business in question, as long as they are from the same country. There is no minimum dollar figure for E-2 investments, but sometimes it can be as low as $50,000 or $100,000, I have been told. Some treaty investors have seriously abused this provision by calling their exploited ship welders, for instance, "essential workers" as I reported earlier. Similarly, this kind of misuse of the program has been going on in Guam for years, if not decades.

The program is run by the State Department, which has no ability to monitor the E-2s in the United States. It gives the investor and his family nonimmigrant visas and work permits, but it does not lead to permanent alien (green card) status. E-2 visas, however, can be renewed as long as the business is actually operating.

So resident businessmen can get serious money from EB-5, and more or less legitimate alien workers via E-2, but cannot get both through a single channel that would also give the investor a green card.

Perhaps our Craigslist person is thinking in the terms of China's own overseas investment policy; typically the larger projects, particularly in construction, involve both Chinese money and (usually ill-paid) Chinese workers. If there ever is a Chinese-owned canal through Nicaragua, for example, you can safely predict who will get most of the jobs.