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The Essential Ingredient of the E2 Visa Petition

The E2 visa is an integral part of the U.S. immigration program. In a nutshell, sometimes referred to as the Treaty Investor Visa, the E2 visa requires an investment of a “substantial” amount of capital in a bona fide enterprise in the United States. At the core of a successful E2 visa petition is a well-thought-out vision for a successful and self-sustaining business and a comprehensive strategy for making it a reality.

While a formal business plan for an E2 visa is not required, it is essential to maximize the chances of obtaining the visa. The E2 business plan is in our sweet spot.

We have educational degrees in business administration and finance and advanced degrees in business management. We have visiting-scholar experience in a graduate-level Hubert H. Humphrey Fellowship Program in entrepreneurship and venture capital. We have presided over world-renowned business plan competitions, like the Intel Challenge, Start-up Chile, and Start-up Peru, and served as a panelist at several immigration CLE events and conferences. We have sat on several boards of directors and have extensive business experience in high-growth enterprises, international marketing, and business coaching. We are not attorneys, though. This is why an attorney’s extensive educational training and our business expertise are a match made in heaven.

Patching together thoughts and numbers is not enough. Careful consideration must be given to several components of a comprehensive business plan, including financial, marketing, industry analysis, competition, key personnel, and business organization. The business plan is as important as any investment pitch to new investors on a roadshow, if not more so.

On a macro level, the two possible deciding authorities depending on the nature of the petition, either the United States Citizenship and Immigration Services (the “USCIS”) or the Bureau of Consular Affairs for the Department of State (“CA”), must be persuaded that a substantial investment will likely bring economic, financial, and social benefits to the U.S.

There is no formula for what constitutes a substantial investment for these purposes. The bottom line is that it must be of a size and nature that results in a viable enterprise -- that is, one that can grow and become profitable.

For example, based on a $15,000 investment, we constructed a business plan for a company formed to train skilled workers in the complex mechanical installation of proprietary robotics, conveyors, paint booths, and other assembly systems for the automotive and the environmental technology industries. The business plan projected long-term potential. It secured the visa and, as the plan contemplated, the investment led to a major contract, this time with automaker Tesla.

It is a matter of how USCIS or CA is inclined to view the likely impact of the infused capital in the relevant market. Is the business funded enough to meet entry and growth challenges in its market niche? What will likely be the degree of success? Will the enterprise be sustained? Over what period? Will it hover endlessly on the brink of collapse? Will it need steady infusions of capital? The more positive certainty your business plan brings to questions like these, the more likely the visa.

The same applies for the nature of the investment. The USCIS or CA must be persuaded that the applicant cannot easily walk away, that the applicant is irrevocably committed to the venture. Is the applicant at risk enough to stay devoted over the long haul? In colloquial vernacular, does the applicant have skin in the game? An applicant who may jump ship at the first signs of distress stands little chance of getting the visa.

In a similar vein, the investor must have the power to control the operation of the business. Is the investor’s percentage of ownership less or more than 50%? Is there a corporate device in place to assure the applicant can direct management of day-to-day operations? The government decision-makers want to know that the person under consideration is the same person to control the business they are being asked to approve.

Similarly, generally speaking, the business plan has to convincingly show that the U.S. entity is more than marginal. What does that mean? A marginal enterprise lacks the present or future capacity to generate more than sufficient income to provide a minimal living for the treaty investor and their family. In the normal course of economic events, a business that turns barely enough profit to stay afloat might be fine. But when it comes to the E2 visa, the projected investor income must be enough to grow the business and have commercial staying power and economic impact. Again, the USCIS or CA, as the case may be, will view the business from a U.S. perspective, not what might satisfy an investor.

Projected thin net profits, however, are not always dispositive. If the investment will create significant job opportunities locally or otherwise have a positive significant impact on the local economy, the applicant may still qualify despite projected income only enough to sustain the investor and their family. A case in point is the successful E-2 business plan we formulated that didn’t project substantial profits. The business plan, for a chicken farm, while projecting some profit, focused mainly on creating expanded employment. It generated at least 30 jobs in its first year of operations, making a positive impact on the U.S. economy.

In addition, the type of business is not a neutral consideration. If the proposed business is considered more speculative than not, the chances of approval are low. For example, an investment in a real estate venture that lacks reasonable and credible long-term projects is not likely to inspire an initial positive reaction. The decision-makers are likely to be leery of E2 petitions for businesses in markets that fluctuate up and down as a matter of course and more friendly to those in markets that boast a tried and true record of stable success.

A final word about the business plan content. The business plan should try to anticipate the questions the USCIS or CA might raise in viewing the petition. What are their pet peeves for this type of petition? Where will their focus likely be? What is the latest trend of issues impacting E2 visas? Answering those questions before they can be asked will give the applicant a substantial boost by bringing a high degree of certainty to the process and, not the least, making the job of the decision-makers easier, thus putting the petition in a good light.

The E2 visa applicant is well-served to work with experienced business people who know the market landscape, the nuances of the petition process, the thinking of the USCIS and CA and how to assemble the materials and draft the content of an effective business plan. We look forward to working with you. Contact us today!

Marco Scanu is founder of Visa Business Plans, which has helped thousands of clients develop effective immigration business plans.

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