New bill to extend US’ E-2 visa treaty to Portugal but adding eligibility restrictions

By Moustafa Daly

Many countries with citizenship by investment programs around the world count access to the U.S. E-2 visa treaty as a major advantage to its CBI offerings. As do other countries with residency by investment programs that can lead to citizenship. From Grenada to Turkey, global investors seek citizenships by investment in their pursuit of E-2 nonimmigrant visas that allow them to live and work in the U.S. for up to five years, which is renewable. More than 33,000 E-2 visas were issued to investors and their dependents in 2021, according to the State Department. 

The U.S. House of Representatives has passed the Amigos Act as part of the National Defense Authorization Act, a legislation that would extend the E-2 treaty countries to include Portugal – whose citizens would be able to invest and live in the U.S. upon the bill’s approval by the Senate and signature of the president. The move could give the Portuguese Golden Visa program a further boost in popularity.

“The Amigos Act will help create more jobs and increase investment and further strengthen ties between the United States and Portugal,” said Diogo Capela, co-managing partner at Lamares, Capela & Associados (LACA). “It will be one more reason for all those who already intend to obtain Portuguese Nationality today to do so.”

“It may become a distinctive factor and create a competitive advantage of this program in relation to other [EU programs] (namely Spanish and Greek),” he adds.

Sara Sousa Rebolo of Prime Legal agrees that it is an important development for the immigration industry in Portugal. 

“With the approval of USA E-2 visa access, allowing Portuguese investors to develop investment activities in the USA, all the residence programs in Portugal including the Golden Visa will gain an extra value in the migration and succession planning of HNWIs and entrepreneurs, also impacting the Portuguese corporate and export sector,” she said.

What about other E-2 treaty countries?

The passing of the Amigos Act isn’t good news for all RCBI programs, as the bill also limits access to the E-2 visa to citizens who have been ‘domiciled’ or lived in one of the treaty countries for a minimum period of three years – basically the bill’s alternative of the ‘genuine link’ between the investor and country of citizenship stressed by the EU last month as the EU commission took Malta to court over its RCBI program.

For a country like Grenada, whose RCBI programs don’t require the applicants to visit or reside in the island-nation, this condition is likely to hinder the growth of its RCBI program, as unrestricted access to the E-2 Visa is considered one of its program’s main selling points.

“It is not surprising that the United States government has requested more clarity by imposing a residence requirement [on E-2 applicants]; we have to bear in mind that it was always clear that there should be a nexus between the E-2 applicant and the E-2 country,” explains Richard Hallam, CBI director at Ora Caribbean. “When investors decide to pursue citizenship by investment in Grenada, there is a mandated five-year holding period on their investment, during which time the residency requirement could be satisfied.”

Thus, Hallam doesn’t anticipate the Amigos Act to cause major disruptions to Grenada’s CBI program. “The E-2 visa is by far the most cost and time effective bridge to the United States for those seeking the opportunity to live and work there. I do not believe the [Amigos Act] should impact the [Grenadian CBI] program in any great way.”

Turkey is another country whose RCBI program is likely to get impacted by the passing of the Amigos Act. As it stands, investors can get Turkish citizenship within six months of investing in the country – but with the new Amigos Act domiciliation condition, investors intending to pursue E-2 visas via Turkey’s citizenship may start looking elsewhere.

“The bill will put a damper on the popular citizenship by investment programs (CBI) in Turkey and Grenada (CBI), both of whom have E-2 treaties with the U.S. The requirement that passport holder be resident in their “new country” for three years before being eligible for an investor visa will certainly result in a huge decline in demand for these two CBI programs,” predicts Bernie Wolfsdorf, a former president of the American Immigration Lawyers Association.

Amigos Act and the EB-5 Visa program 

Launched in 1990, the EB-5 investor visa is the popular route for foreign investors seeking to move to the U.S. Unlike the E-2 visa, it offers an indirect path to U.S. citizenship. However, the E-2 visa can be upgraded to an EB-5 visa in the case of increasing the investment amount to meet the program’s requirements – which would be an amount of $800,000 in a Targeted Employment Area or $1,050,000 elsewhere – and the creation of ten jobs in the U.S. market.

Due to its prolonged application process and higher investment threshold, the EB-5 visa is less popular for investors. However, it does offer some comparative advantages.

“The E-2 investors visa is a good first step for those seeking to invest in the U.S., but it does not lead to a green card so many people who want to live in the U.S. will still choose the EB-5 green card option. Also, the children of E-2 visa holders age out at 21 and their families get split up, so the EB-5 option is definitely a better choice for those who can afford it,” said Wolfsdorf.

The United States Senate also has to sign off on the Amigos bill before it will take effect.

“While very few of these treaty investor bills have advanced in the past, it does seem likely that this bill could pass and reach President Biden’s desk before congress recesses for the holidays,” Wolfsdorf said.

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