A Brazilian entrepreneur with a growing tech company decides to relocate operations to the United States. Within weeks, the reality sets in: multiple visa categories, overlapping federal agencies, state-level requirements, and timelines that stretch from months to years. One wrong filing – or a missed deadline – can reset the entire process and trigger a bar on re-entry.
Immigration and residency in the United States is governed by federal immigration legislation administered through several agencies, principally the Department of Homeland Security and the Department of State. International business clients typically pursue pathways such as the investment visa, the intracompany transferee visa. Alternatively, the employment-based residence permit. Each with distinct eligibility thresholds, filing sequences. Additionally, processing windows that range from several months to several years. A correctly structured application, supported by the right business and financial documentation, is the single most consequential factor in securing status.
This page covers the principal residency and visa instruments available to international investors and executives, key procedural pitfalls. Cross-border considerations for clients with ties to Brazil and the EU. Additionally, a self-assessment checklist to help you determine which pathway fits your situation.
The US immigration system: regulatory setting and what makes it distinct
The United States operates one of the most comprehensive – and most litigated – immigration systems in the world. Federal immigration legislation sets the categories, conditions, and numerical limits for every visa and residence permit. State law plays no direct role in immigration status, but state-level business structures – including the Delaware LLC – frequently feature in investment-based applications as the vehicle through which qualifying investments are channelled.
Two agencies handle the bulk of business immigration filings. US Citizenship and Immigration Services (USCIS) processes petitions filed within the United States. The Department of State, through its consular posts abroad, issues visas to applicants outside the country. These two tracks – the consular and the adjustment-of-status tracks – run in parallel, and choosing between them has direct consequences for timeline, flexibility of travel, and continuity of work authorisation.
The Green Card (lawful permanent residence) represents the endpoint for most long-term planning. It confers the right to live and work in the United States indefinitely, travel freely, and – after a qualifying period – apply for naturalisation. Reaching that endpoint, however, requires navigating one of several preference categories, most of which carry significant processing backlogs. The gap between filing an initial petition and receiving permanent residence can span several years, depending on the applicant's country of birth and the category chosen.
International clients frequently underestimate one structural feature of US immigration law: the priority date system. Each employment-based or family-based Green Card preference category has a finite annual quota. When demand exceeds supply – as it chronically does for nationals of certain countries – a queue forms. The applicant's place in that queue is fixed by the priority date: the date on which the initial petition was filed. A delay of even a few months in filing can mean years of additional waiting time.
For clients accustomed to EU or civil law residency systems, this priority date mechanics represents the sharpest departure from familiar procedure. In most European jurisdictions, a qualifying investment or employment offer triggers a relatively linear administrative process with defined timelines. In the United States, the timeline is partially determined by congressional quotas that no administrative action can override. Understanding this distinction from the outset shapes every strategic decision that follows.
Principal visa and residency instruments for international business clients
Several visa categories are particularly relevant to international investors, entrepreneurs, and senior executives. Each carries distinct conditions, timelines, and risks that must be assessed before a filing strategy is selected.
E-2 Treaty Investor Visa. The E-2 visa permits nationals of treaty countries to enter and work in the United States by making a substantial investment in a US enterprise. The investment must be active – not passive – and the applicant must exercise operational control over the business. There is no fixed minimum dollar threshold in the statute. However. Practice requires that the investment be sufficient to ensure the viability of the enterprise and that it represent a significant proportion of the total enterprise value. The E-2 is a non-immigrant visa: it does not lead directly to permanent residence. It is renewable indefinitely provided the qualifying investment continues, but the holder remains a temporary resident. Clients planning long-term relocation must therefore pair an E-2 with a separate Green Card strategy from the outset. A common mistake is to rely entirely on the E-2 for five or ten years and then discover that no parallel permanent residence pathway was initiated. at which point the priority date queue has not even started running.
EB-5 Immigrant Investor Program. The EB-5 program offers a direct route to a Green Card in exchange for a qualifying capital investment in a new commercial enterprise that creates at least ten full-time jobs for US workers. Two investment paths exist: a direct investment in a business controlled by the investor, and an investment through a USCIS-designated regional center that pools funds for larger projects. The minimum investment amount depends on the location of the enterprise and is set by federal regulations, with a higher threshold in standard areas and a lower threshold in targeted employment areas. The EB-5 path involves a two-stage approval process: an initial petition establishes the investor's eligibility. Additionally. A subsequent application for conditional residence. and later for removal of conditions. requires evidence that the investment was made, maintained. Additionally, that the job creation requirement was met. The conditions removal stage is a frequent source of difficulty. Investors who contributed capital through a regional center must demonstrate that the underlying project has created the required jobs. Additionally. In several documented categories of cases, project delays or insolvencies have left investors in prolonged limbo. Due diligence on the regional center or direct investment structure is not optional – it is the central risk management exercise in any EB-5 strategy.
L-1 Intracompany Transferee Visa. The L-1 visa allows a multinational company to transfer a manager, executive, or employee with specialised knowledge from an affiliated foreign office to a US entity. The L-1A category – for managers and executives – is particularly valuable because it offers a direct pathway to an EB-1C Green Card, which carries no numerical backlog for most nationalities. The qualifying relationship between the foreign and US entities must be documented precisely: parent, subsidiary, affiliate, or joint venture relationships each have their own evidentiary requirements. A non-obvious pitfall arises when the US entity is newly established. A "new office" L-1A is granted for only one year and requires the applicant to demonstrate, on renewal, that the US office has grown to the point where a genuine managerial or executive role exists. Applicants who spend the initial year handling operational tasks rather than building a management structure frequently face denial at the renewal stage.
O-1 Extraordinary Ability Visa. The O-1 is available to individuals with extraordinary ability in business, sciences, arts, or athletics. In the business and technology sector, it is increasingly used by founders and senior technologists who can document a record of recognition. patents. Press coverage, peer recognition, high remuneration relative to peers. Alternatively, significant contributions to their industry. The O-1 is a non-immigrant category and does not lead directly to permanent residence, but it can be held concurrently with a pending Green Card application. Processing through premium processing – an expedited service offered by USCIS for a fee – typically produces a decision within a defined short window. Making it a practical bridge visa for clients who need immediate US work authorisation while a longer-term pathway progresses.
Employment-based Green Cards (EB-1 through EB-5). For clients seeking permanent residence through employment rather than investment, the EB-1 category. reserved for persons of extraordinary ability. Outstanding professors and researchers. Additionally, multinational managers and executives. is the most efficient route for senior international business clients. It does not require an employer-sponsored labour market test, which removes one of the most time-consuming elements of the standard employment-based process. The EB-2 and EB-3 categories, which cover advanced degree professionals and skilled workers respectively, require a labour certification process that can add one to several years to the overall timeline. For clients with a choice between the two paths, the additional time cost of labour certification must be factored directly into the business planning horizon.
For a detailed analysis of how business structuring in the United States interacts with immigration strategy. including the use of a Delaware LLC as a qualifying investment vehicle. see our guide to company formation in the United States.
To discuss which residency pathway aligns with your business plans and timeline, contact us at info@ferrazwhitmore.com.
Common pitfalls and what international clients consistently get wrong
US immigration litigation before federal courts – including the US District Court (federal trial court) level and the circuit courts of appeal – has produced a well-documented body of practice around recurring filing errors. Several patterns appear repeatedly across international business clients regardless of their country of origin.
Misclassifying the investment as passive. Both the E-2 and EB-5 categories require that the investment be at-risk and active. Placing funds in a managed account or a real estate asset without a qualifying business component does not satisfy the investment requirement. USCIS has consistently denied petitions where the investment resembles a portfolio allocation rather than a business commitment. The distinction between an active qualifying investment and a passive holding is drawn in the adjudication record, not in the regulations themselves – which makes guidance from experienced practitioners essential.
Failing to maintain status during the process. US immigration status is a real-time compliance obligation. A visa holder who allows status to lapse – even briefly – may trigger unlawful presence, which carries automatic bars on re-entry of three or ten years depending on duration. International clients who travel frequently, change employers, or shift business structures mid-process are most exposed to this risk. Any change in employment, corporate structure, or physical presence should be reviewed by counsel before it occurs.
Underestimating the documentation threshold. USCIS applies a preponderance-of-the-evidence standard, but the volume and specificity of documentation expected in business immigration petitions is substantially higher than most applicants anticipate. Financial statements, payroll records, organisational charts, contracts, tax filings, and corporate governance documents are routinely requested. A Request for Evidence (RFE) – USCIS's mechanism for requesting additional information – adds weeks or months to processing and is often avoidable if the initial filing is comprehensive.
Priority date strategy errors. As noted above, the priority date is the most consequential timing decision in the Green Card process. Filing an initial petition even three to six months later than optimal can extend the total waiting period by years for nationals of high-demand countries. The decision of which category to file under – and when – requires an analysis of the current Visa Bulletin, the applicant's country of birth, and the trajectory of category backlogs over recent years. This is not a mechanical exercise; it requires judgment built on practice.
Ignoring tax residency implications. Obtaining a Green Card or spending substantial time in the United States triggers US tax residency, which means worldwide income becomes subject to US federal tax. International clients who structure their global holdings without accounting for this shift can face significant and unexpected tax exposure. The interaction between US tax legislation, the tax treaties the United States has concluded with various countries. Additionally. The Foreign Account Tax Compliance Act (FATCA) requirements creates a compliance environment that must be addressed in parallel with the immigration application. not after status is granted.
Real estate investment in the United States often intersects with immigration planning, particularly in EB-5 and E-2 strategies. For the property and transactional dimensions of that intersection, our team covering real estate matters in the United States works alongside the immigration practice on integrated mandates.
Cross-border dimension: Brazil and EU implications
A significant share of the firm's US immigration practice involves clients with existing business ties to Brazil or to EU member states – particularly Portugal, Germany, and the Netherlands. The cross-border dimension introduces specific complications that purely domestic immigration counsel is unlikely to anticipate.
Brazil–US dimension. Brazil is not a treaty country for E-2 purposes, which means Brazilian nationals cannot access the E-2 investor visa directly. This is a material structural constraint. Brazilian clients seeking to invest and work in the United States must pursue alternative pathways: typically the EB-5 for a direct permanent residence route. Alternatively. The L-1 if the client's Brazilian company has or can establish a genuine affiliated US entity. Some Brazilian clients elect to restructure their business through a Portuguese entity. Portugal is a treaty country. before making the US investment. However. This approach involves its own corporate and tax implications that require careful advance planning. A rushed restructuring, undertaken solely for immigration purposes, may not satisfy the continuity and genuine business operation requirements of either the E-2 or the L-1.
For clients managing parallel legal structures in Brazil, the interaction between US immigration compliance obligations and Brazilian corporate and regulatory requirements creates a dual-track management challenge. Our coverage of immigration matters in Brazil addresses the Brazilian side of that equation for clients managing presence in both jurisdictions simultaneously.
EU dimension. EU nationals – in particular German, French, Dutch. Additionally. Portuguese citizens – generally have access to the E-2 visa given the network of bilateral investment treaties that the United States maintains with EU member states. This provides a relatively accessible entry point for EU-based entrepreneurs making qualifying investments in US enterprises. The more complex planning question for EU clients arises on the permanent residence side. An EU national holding a German or Dutch residence permit, for example. Will typically need to manage the interaction between US long-term residency requirements. particularly the physical presence requirements that apply to both conditional and permanent residence holders. and any EU residency obligations that require minimum time in the EU to maintain status. Extended US stays can jeopardise EU long-term resident status if the permitted absence periods are exceeded.
The Securities and Exchange Commission (SEC) dimension. International investors who acquire stakes in US companies in connection with their immigration strategy. particularly through EB-5 regional center investments – must be aware of US securities legislation. Regional center offerings are typically structured as securities under federal law and must comply with applicable registration or exemption requirements. An investor who participates in an improperly structured offering faces not only the loss of the investment but also potential complications in the immigration adjudication itself. Since USCIS scrutinises the legality and integrity of the qualifying investment. Independent legal review of the offering documentation before committing funds is a non-negotiable step in any EB-5 strategy.
Dispute resolution and enforcement. International business clients operating in the United States will encounter US dispute resolution mechanisms across their commercial activities. The federal court system – anchored by the US District Court as the trial court of general federal jurisdiction – handles a wide range of commercial matters, including securities disputes and contract enforcement actions. For clients who prefer private resolution, arbitration before bodies such as JAMS or the American Arbitration Association (AAA arbitration) is widely used in commercial contracts. Understanding which forum applies to a given dispute. Additionally, whether an arbitration clause or forum selection clause is enforceable under the applicable state or federal law. Is a separate but frequently intersecting layer of legal planning for international business clients in the United States.
For a tailored strategy on residency pathways and business entry in the United States, reach out to info@ferrazwhitmore.com.
Self-assessment checklist before initiating a US immigration application
The pathways described above are applicable under different conditions. Before selecting a strategy, verify the following.
For E-2 Treaty Investor:
- Your nationality is covered by a bilateral investment treaty with the United States.
- You are prepared to make a qualifying active investment in a US enterprise.
- You understand that E-2 does not lead directly to a Green Card and have a parallel permanent residence strategy in place or planned.
- The enterprise will be at least 50% owned by treaty nationals and the investment funds are traceable to a lawful source.
For EB-5 Immigrant Investor:
- You have available capital at or above the applicable minimum investment threshold.
- You are prepared to demonstrate the lawful source and path of funds in detail.
- You have conducted due diligence on the regional center or direct investment project, including review of its SEC compliance posture.
- You have accounted for the conditions removal stage and the job creation evidence requirement in your planning horizon.
For L-1 Intracompany Transferee:
- Your current employer is a qualifying multinational with an affiliated US entity.
- You have worked for the foreign affiliate in a managerial, executive, or specialised knowledge capacity for at least one continuous year within the last three years.
- If the US entity is newly established, you have a credible business plan for the office's growth and your transition into a genuine managerial role.
Before any filing, verify:
- Your current immigration status in the United States, if any, and any prior immigration history including any prior denials or overstays.
- The tax residency implications of the pathway chosen, reviewed with a US tax adviser.
- Whether any concurrent EU or Brazilian residency obligations impose physical presence requirements that conflict with US residency maintenance obligations.
- That all corporate documents, financial statements, and source-of-funds records are current, translated into English, and in the form required by USCIS.
If the matter involves an existing employment-based petition that has been pending for a significant period. Verify the current priority date against the Visa Bulletin and assess whether a category change or concurrent filing would reduce overall waiting time.
Frequently asked questions
- How long does it take to obtain a Green Card through the EB-5 investor program?
- The EB-5 process involves multiple stages: petition approval, visa availability, conditional residence, and then removal of conditions. Total elapsed time from initial filing to unconditional permanent residence varies widely. For nationals of countries without significant backlogs in the EB-5 category, the process can take several years. For nationals of countries facing category backlogs – including, at various periods, China and India – the wait can extend to a decade or longer. Applicants should build this timeline directly into their long-term planning before committing capital.
- Can a Brazilian national access the E-2 Treaty Investor visa?
- Brazilian nationals are not currently covered by a bilateral investment treaty with the United States that would qualify them for the E-2 visa. This is a significant structural limitation. Brazilian clients who wish to invest and work in the United States typically pursue the EB-5 immigrant investor route, the L-1 intracompany transferee category, or – where eligible – restructure through a treaty-country entity. Each alternative has distinct requirements and implications that should be assessed against the client's specific business and residency objectives before any filing is initiated.
- Is it possible to maintain EU long-term residency while pursuing US permanent residence?
- This is one of the most common misconceptions among internationally mobile clients. US lawful permanent residence carries its own physical presence requirements – including limits on how long a Green Card holder can remain outside the United States without triggering abandonment of residence. EU long-term resident status under EU immigration rules also imposes minimum presence requirements. The two sets of obligations can conflict directly. Managing this dual presence requirement requires advance planning, including the use of re-entry permits and, in some cases, a sequenced approach to when US permanent residence is formally activated. Engaging a lawyer in the United States with cross-border experience – and coordinating with EU counsel – is essential before either application is filed.
About Ferraz & Whitmore
Ferraz & Whitmore is an international law firm based in Lisbon, advising business clients across 46 jurisdictions. As an international law firm in the United States market, our practice combines English common law expertise with deep knowledge of civil law systems to deliver integrated immigration and residency strategies for cross-border clients. We advise international entrepreneurs, institutional investors. Additionally, in-house legal teams seeking to establish or expand a presence in the United States. from initial visa selection through to long-term residency. Naturalisation planning. Additionally, parallel compliance obligations in Brazil and across the EU. The firm's immigration practice works in close coordination with our corporate, real estate, and tax teams, ensuring that investment structuring, entity formation, and residency applications are aligned from the outset. Our attorneys have advised on investment visa matters spanning both civil law and common law systems, and the firm participates in cross-border practice groups focused on transatlantic business mobility. For a preliminary review of your immigration and residency situation in the United States, email info@ferrazwhitmore.com.
Disclaimer: This publication is provided for informational purposes only and does not constitute legal advice. The information herein should not be relied upon as a substitute for professional legal counsel tailored to your specific circumstances. Ferraz & Whitmore assumes no liability for actions taken or not taken based on the contents of this material. For advice regarding your particular situation, please contact info@ferrazwhitmore.com.