Choose the E-2 if you are a national of an E-2 treaty country, want to run your own business, and are comfortable with a renewable temporary status; choose the EB-5 if you need a green card, cannot use the E-2 because of your nationality, or want a passive investment and can commit at least $800,000. Many treaty nationals do both in sequence: they enter on an E-2 to operate a business while they prepare an EB-5 filing for permanent residence.
Related FAQ: E-2 or EB-5: which investor visa is right for me?
Question 1: Is your nationality on the E-2 treaty list?
The E-2 is available only to nationals of countries with a qualifying treaty with the United States, and at least 50 percent of the business must be owned by nationals of that same country. The State Department's treaty countries page is the controlling list. As of September 25, 2026, it includes E-2 status for, among others, Mexico, Colombia, Argentina, Chile, Spain, Portugal, Italy, Germany, France, the United Kingdom, Canada, Japan, Israel and New Zealand.
Brazil, India and mainland China are not on the E-2 list. We checked the State Department page for this article. A Brazilian or Indian national cannot obtain an E-2 on that passport; the E-2 is open only if the person also holds the nationality of a treaty country (for example, Italian or Portuguese nationality through descent).
Two further rules matter:
- Citizenship by investment. Since December 23, 2022, a person who acquired treaty nationality through a financial investment generally must have been domiciled in that country for at least three continuous years before applying (Pub. L. 117-263).
- EB-5 has no nationality requirement. Any nationality can file, but your country of birth determines visa availability in the Visa Bulletin.
Question 2: What is your budget, and will you run the business?
| E-2 | EB-5 | |
|---|---|---|
| Minimum investment | None; must be "substantial" relative to the cost of the business | $800,000 (targeted employment area or infrastructure) or $1,050,000; adjusts for inflation January 1, 2027 |
| Role | Must "develop and direct" the enterprise | Direct investment: usually active; regional center: usually passive |
| Jobs | No fixed number; the business must not be marginal | 10 full-time jobs per investor |
| Capital at risk | Yes, committed and irrevocable | Yes, expected to remain invested not less than two years |
The E-2 works at lower amounts because the test is proportional: a low cost business must be close to fully funded, but there is no floor. Our E-2 investment guide walks through four illustrative businesses. The EB-5 has statutory amounts, set out in our EB-5 in 2026 guide. If you want a passive investment, the E-2 is the wrong tool: it requires the investor to direct the business.
Question 3: Do you need a green card?
This is usually the deciding question.
- E-2 is a nonimmigrant status. USCIS grants an initial stay of up to two years, and extensions in increments of up to two years "may be granted," with "no limit to the number of extensions." It does not lead to permanent residence on its own. If the business closes or is sold, the status ends.
- EB-5 leads to permanent residence. The investor, spouse and unmarried children under 21 receive two years of conditional residence, then file Form I-829 to remove conditions, and can later pursue citizenship.
- Children. E-2 dependents are unmarried children under 21. A child who turns 21 loses E-2 dependent status and needs a status of their own. Families with teenagers often choose EB-5 for that reason, and should have counsel review Child Status Protection Act age calculations early.
- Spouses. E-2 spouses are employment authorized incident to status (USCIS). EB-5 spouses become conditional residents with the investor.
How does timing compare?
E-2 cases are decided at a U.S. consulate or by USCIS on a change of status, and a well prepared case can move within months. EB-5 involves a USCIS petition, then a visa or adjustment, then the I-829, and USCIS publishes current processing times on its processing times page. Visa availability also matters. In the October 2026 Visa Bulletin, the EB-5 unreserved category is current for most countries but has final action dates of December 1, 2016 for mainland China born investors and December 1, 2023 for India, while the rural, high unemployment and infrastructure set-aside categories are current for every country. For Indian and Chinese investors, a set-aside project can change the timeline materially. Check the current bulletin before deciding.
One date has passed: regional center petitions filed on or before September 30, 2026 are protected if the regional center program's authorization lapses after September 30, 2027. Petitions filed later are not covered by that protection.
Decision table
| Your situation | Usually the better fit | Why |
|---|---|---|
| Treaty national, budget under $800,000, wants to run a business | E-2 | No minimum; proportional test; fast consular path |
| Treaty national, wants a green card, can invest $800,000 or more | EB-5, possibly with E-2 first | EB-5 gives permanent residence; E-2 can bridge while the petition is pending |
| Brazilian, Indian or mainland Chinese national without a treaty nationality | EB-5 | E-2 unavailable on that passport |
| Indian or mainland Chinese national choosing EB-5 | EB-5 set-aside project (rural, high unemployment or infrastructure) | Set-aside categories are current in the October 2026 Visa Bulletin while unreserved has final action dates for China and India |
| Wants a passive investment | EB-5 regional center | E-2 requires the investor to develop and direct |
| Children approaching 21 | EB-5, started early | E-2 dependents lose status at 21 |
| Acquired treaty citizenship through investment less than three years ago | EB-5, or wait | Three year domicile rule for E-2 |
| Wants to test a U.S. business before a larger commitment | E-2 | Lower capital, renewable status |
Key numbers
- E-2 minimum investment: none (proportionality test).
- E-2 ownership: at least 50 percent by treaty nationals.
- E-2 stay: up to two years, renewable in increments of up to two years without a limit on extensions.
- EB-5 minimum investment: $800,000 or $1,050,000, adjusting January 1, 2027.
- EB-5 jobs: 10 full-time positions per investor.
- EB-5 set-asides: 20 percent rural, 10 percent high unemployment, 2 percent infrastructure.
- Dependent children: unmarried and under 21 in both categories.
What to do
- Check every nationality you and your spouse hold against the State Department treaty countries list.
- Decide whether permanent residence is a requirement or a preference, and map your children's ages against the timeline.
- Set a realistic capital budget that includes working capital (E-2) or the full statutory amount plus fees (EB-5).
- Decide whether you want to run the business or invest passively.
- If EB-5, check your country of birth in the current Visa Bulletin and consider set-aside projects.
- Start the source of funds file now; both visas require a documented lawful source.
- Book a consultation to test the strategy, including an E-2 to EB-5 sequence, against your facts.
Related reading
- Samper Law investor visa practice
- FAQ: E-2 or EB-5: which investor visa is right for me?
- How Much to Invest for an E-2 Visa
- EB-5 in 2026: $800,000 vs $1,050,000, Job Creation, and Processing Times
- EB-5 or E-2? Start With the Family, Not the Investment Amount.
- There Is No E-2 Minimum. That Is the Problem.
- EB-5 Grandfathering Ends September 30. Here Is What a Filing Actually Protects.
- October 2026 Visa Bulletin: EB-2 India Returns, EB-2 and EB-3 Move Back for Most Countries
Sources
- U.S. Department of State, Treaty Countries
- U.S. Department of State, Treaty Trader or Investor Visa (E)
- 9 FAM 402.9, Treaty Traders and Treaty Investors
- USCIS, E-2 Treaty Investors
- 8 U.S.C. 1153(b)(5) (Office of the Law Revision Counsel)
- USCIS Policy Manual, Volume 6, Part G, Chapter 1
- USCIS, EB-5 Questions and Answers
- U.S. Department of State, Visa Bulletin for October 2026
- USCIS, Check Case Processing Times
- Pub. L. 117-263 (Dec. 23, 2022)
Accurate as of September 29, 2026.
Related questions
Founder and Managing Attorney of Samper Law, Lidice leads the firm's uncompromising litigation standards with relentless advocacy and strategic precision honed across federal and state courts.
Finance and Operations Executive of Samper Law, Gerardo directs the firm's financial architecture and advises the corporate and private wealth practice groups on multinational structuring, due diligence, and the financial side of investor-visa matters. He is not an attorney.