The American Dream Adventure : The E2 Visa Investor’s Move to the USA & Business Choices

Foreign entrepreneurs who seek to build a new life in the United States all have this trait in common: a thirst for the ultimate adventure of all adventures, the dream to build a new business in a new world. Theirs is a burning desire to not only cross a nation’s borders, but also to push one’s personal boundaries with business ownership as vehicle to building a new life in a new country. And what better country to build an enterprise than the seductive United States of America? Forever pragmatic in its commerce and industry the USA has entered in a reciprocity treaty with 80 other countries permitting entrepreneurial investors to reside and create a business in America. The vehicle to this exchange is called the non-immigrant E2 treaty investor visa which is vetted by consular officers either in the United States or at an embassy in the investor’s country of origin. The E2 visa is often an overlooked way to reside and work in the US but has recently become increasingly attractive as a result of the current administration’s anti-immigration policies.

Foreign nationals who bring foreign investment capital to the US while creating jobs for US workers through an enterprise can be granted the right to reside in the US with their spouse and children. The spouse of an E2 visa holder is not required to work in the business and is allowed to apply for a work permit and seek work with other companies. This article gives an overview of the E2 visa requirements and recommends strategies to succeed both in visa approval and in business. We discuss the monetary and non-monetary requirements to be granted an E2 investor visa in the US. In disclosure, I am not an attorney and this article doesn’t provide any legal advice. I strongly recommend you hire an immigration attorney to navigate the visa application process with the United States Citizenship & Immigration Services (USCIS), and to increase your chances of visa approval.

To be a foreign national from a treaty country:

The E-2 Treaty Investor visa allows foreign nationals from 80 countries that have a friendly treaty of commerce and navigation with the United States, and who are able to make a financial investment to reside in the US while they successfully operate their business. These 80 countries include Japan, Germany, France, The United Kingdom, Canada, Mexico, South Korea, Spain, Italy and Argentina, which received most E2 visas in recent years. The most notable exclusion are with Brazil, China (except Taiwan), Israel and Russia. Appendix A is a comprehensive list of treaty countries in alphabetical order.

To have money to invest:

As its name indicates, it requires an investment; one that ensures that your business will be able to generate the financial means to support yourself, your spouse and your unmarried children under the age of 21, while creating jobs for several US workers. In short, entrepreneurs from treaty countries seeking the E2 visa need to bring foreign capital to start a business here, and in exchange of creating jobs, they are granted the right to live and work in the US, renewable every few years for the life of their business. Although there is no minimum investment required, it needs to be sufficient for the business to generate enough revenues. Some claim that an investment as low as $10,000 is possible under certain circumstances. Realistically, consular officials realize that any business that aims to be profitable in the United States will most likely require a significantly larger investment.  A credible investment would be around $100,000 to $150,000 and have greater chance to be approved for an E2 visa.

For larger investments, the E2 visa recipient is able to be a partial investor but must in all cases be in a controlling position of the business and actively operate it. The applicant needs to invest personal funds in the company:

• • at least 50% for investments above $500,000
  • at least 75% for investments between $150,000 and $500,000
  • 100% for investments less than $150,00

Beyond the USCIS requirements, keep in mind that the cost of living in the US varies greatly by state, thus it generally will cost more to invest and live in New York City or in most cities in California than many other regions. As you create your business plan, be sure to have a realistic perspective of the cost of living in your chosen region so that your financial projections reflect reality as closely as possible and you have enough working capital set aside to meet your needs during the ramp up stage of your venture.

The investment needs to be a commercial risk:

The investment must be irrevocably assigned to a real operating commercial venture with risk of losing all or a significant portion of the investment. A paper or speculative investment or passive real estate investment, or merely money sitting idle in a bank will not qualify. A Canadian client had his first visa application rejected because his investment was not “at risk.” On his second attempt, we found him a turn-key concept, a franchise, that was easily understood by the consular officer and met the requirements of the USCIS.

The investment must come from a legitimate source:

The investor must explain and demonstrate with documentation translated in English that the source of the funds is from a legitimate non-criminal source and was obtain through lawful means either savings, inheritance, a gift, a bank loan, or a promissory note in the country of origin. If a personal loan or a gift, the consular office will also require documentation proving the legitimacy of the funds from the lender or gifter.

The business needs to be viable and non-marginal:

The business must have an impact on the US economy and create jobs. To demonstrate the viability of the business the investor will be required to produce a 5-year business plan showing how the business will make money, operate, grow and contribute to the American Economy. The E2 visa could be used to start a business from the ground up, or to purchase an existing business or a franchise resale, or to invest in a new franchise. Depending on your experience in business, and command of the English language, each will present its own set of challenges and advantages. Some business models will also be easier to operate than others. Appendix B, gives you a visual representation of key factors and costs to consider when choosing between starting an independent business, the acquisition of an independent business, the startup of a new franchise unit, and the acquisition of a franchise resale. To illustrate our point we use a simple example that could generally be applied to a brick and mortar location of about 1,000 square feet of either a boutique, retail, small salon or coffee shop, all of which represent business to consumer (B2C) types of models. Naturally, the startup costs will differ for technological businesses, and business to business types (B2C) and home-based businesses.

Start-up a new business:

When starting a business from an idea the challenge is to create a detailed and viable business plan with 5-year projections demonstrating that the business will be able to support not only the investor and his/her family but also to create new jobs and contribute to the American economy.  Writing a business plan is necessary both to help you solidify your idea and to ensure that the consular officer has a clear view of your venture. The more difficult it is for the officers of the USCIS to comprehend the viability of your business idea, the greater risks of your visa application to be turned down. If you find the task daunting, as many entrepreneurs do, you might consider hiring a professional business advisor to produce a well-written, and concise plan. This will increase your odds of success both in visa approval and in the longevity of your business.  For the most entrepreneurial and less risk adverse individuals, a startup can be a thrilling path to the American dream. Launching a business from the ground up has great benefits such as the ability to create and decide absolutely everything in your business and exactly as you envision it while selecting your preferred location. If creative freedom is a non-negotiable priority to you, then a startup is good choice. However if ramping up any business (startup, franchise or acquisition) to a profitable and sustainable level is always risky endeavor for anyone, launching an unproven new business can be even more formidable. When first moving to a new nation with a new culture and often a new language it will take time for the entrepreneur to understand the country’s infrastructure, its rules, its regulations, its customs, and to build supportive social networks. Depending on the business experience and English fluency of the E2 visa applicant, and how many resources and time they have reserved for ramp-up, this learning curve can fatefully delay the breakeven point and profitability of the enterprise. There are two other alternatives that in many cases can be less precarious for first time expatriates: purchasing an existing business (acquisition), or investing in a new franchise unit.

Purchase an existing business:

Finding a business that is for sale is relatively easy. Finding one that is for sale and profitable is much more difficult. Again, the new owner will be tasked with demonstrating how they plan to expand and grow the business, and the chosen business will hopefully have well-built systems, a stable staff and resources that are already set up in addition to an existing clientele. In a best-case scenario, the business is cash flow positive and the previous owner will be willing to spend time training the new owner. However, an existing business will also have its own set of challenges. For instance, the location and the market, especially if it is a brick and mortar business, is already determined. In this case the odds of identifying a business that is not only profitable (unless you are willing to turn one around) and in a location that you desire will require a certain amount of luck, patience and persistence. Other matters to consider, are the risks of legacy issues. Once you become owner of this business, you assume responsibility for its entire history, positive or negative. If, for example, a lawsuit that is silently brewing, suddenly reveals itself after your purchase, then you the new owner will be responsible. Steps can always be taken to minimize the impact of any lawsuit, such as a liability insurance and setting up the appropriate business entity. Another example of a legacy issue could be that a major customer has been increasingly dissatisfied with the product or service and decides to now buy from the competition, thus unexpectedly diminishing your revenues. In some cases, key employees might resent the new ownership and decides to suddenly quit. A client of mine spent almost $750,000 in a business and found that the previous owner insidiously sabotaged her credibility to the staff members and made the ownership transition very stressful. Still, an existing business that is set up and profitable can be an attractive choice to a foreign investor especially if the previous owner is willing to spend enough time transitioning and supporting with the new owner. Another option to consider is to acquire an already established franchise unit (resale) which gives you the advantages of a new franchise model but of an already established and cash-flow positive location/unit. See appendix B for an illustration of cost comparison between new franchise and franchise resale.

Invest in a new franchise:

For many E2 visa candidates, a franchised business can be a safer choice. The first advantage is that the franchise will likely be a brand that the consular officers will recognize. They will know before even reviewing the business plan, that the business model is succeeding somewhere in the country and in some cases throughout the world. A franchise is a turn-key concept that has a systems, a brand and that licenses its methodology. Someone, usually an independent business owner, has already made all the mistakes, spent significant money, energy and often years to figure out what works and what doesn’t. Once they have demonstrated that their independent business model is sustainable, duplicable and scalable, they chose franchising as a method of expansion.

Above and beyond the cost of equipment, furniture, and leasehold improvements that you will need in any business regardless of whether you choose an independent business or a franchise, in a franchise you also pay for the franchise fee and on-going royalties (see appendix B.) The cost of the one-time franchise fee will vary but typically ranges between $20,000 and $50,000 and gives you access to the systems, the know-how, and established resources. The monthly royalties vary too, typically between 6% to 12% of gross revenues, but in exchange you receive on-going support and training, research and development, and a brand identity.  In essence, royalties are how franchises support themselves and how they support you the business owner.  In effect, you are paying money with the franchise fee and royalties to license a system created by the franchisor because you will be saving yourself significant money time and energy and reduce your risk of failure. In a franchise, the more successful you are, the better for the brand’s income and its ability to attract and retain quality franchisees.  “In business for yourself not by yourself” is the oft repeated motto in the franchising world.

Note that not everyone is well-suited to be a franchisee because not everyone is willing or capable to follow a preordained system. I tell my US clients who are transitioning from corporate to business ownership, to look at the franchise model as a middle of the road choice between being a corporate or government employee and being a brand new and unproven startup. In the former (corporate job) rules must be followed, including when and where you work, but one does not own equity in the company. In the latter (startup) you own equity but are taking greater risks of failure. In a franchise there are systems to follow but the equity you will build in your location as you grow the business is yours, and as you own boss you still have the flexibility to decide when and where you will work. There are no right or wrong  decision between independent business and a franchise. It really depends on the entrepreneur’s personal situation, their business experience, their personality and their goals.

From the perspective of a foreign national investing in the US, a franchise gives new expatriates the opportunity to learn and adapt to a new country under the guidance and support of the franchisor.  Not only will the franchisors support you, as they have a vested interest in your success (in the form of royalties), but so will the franchisees. I have participated in a franchise network where a significant portion of the support and encouragement I received came from franchisees who had no monetary interest in helping me. As cliché as it might be, a good franchise system is like a family of franchisees where each is co-dependent on the others’ success.

Another perk, is that the franchisor will often provide access to a real estate team to help you identify and negotiate the best physical location for your business. They will look for a space that has the best traffic and demographics to support the business concept.

At last, and not least and especially for the E2 visa applicant, a franchise will already have written documentation of the systems, and a business plan in place. It is a plug-in and play concept that is designed to remove the guess work of business and focus on the monetary results.

Although there are over 4,000 franchise concepts in the US, keep in mind that not all franchisors are willing to consider the candidacy of foreign investors.  Furthermore, many concepts require outstanding communication, and a superior command of the English language is a prerequisite to succeed in a particular franchise. This narrows down the options for some foreign nationals. To many franchisors it can be cumbersome, and costly to accommodate varying time zones and to communicate with foreign investors. In addition, the visa approval, which comes after the foreign franchise candidate has been approved into the franchise and has invested, can create additional delays and uncertainties.  An experienced business coach will understand the E2 visa application process while assisting you with the business side of your endeavor including having access to franchisors that are willing to work with E2 visa applicants.

Building your E2 Investor’s Visa Team:

In the case of the E2 visa applicant, building a team of experts for support in the pre-planning stages and research is critical. Once the business is created or chosen, any investor typically begins to build a team of employees and business associates. And yet, the biggest hurdle for all entrepreneurs is actually in the early research stage that many misguidedly never manage to comprehensively undertake, thus resulting in failure. A business coach who is experienced with E2 visa processes and with franchising will assist you in researching the best franchises for you, guide you in navigating your candidacy with the franchisor so that you have greater chances of being approved for the franchise of your choice. Keep in mind that being willing and able to “buy” a franchise gives you absolutely no guarantee that the franchisor will approve the candidacy. About 30% of franchise candidate are rejected by the franchisor even if they have the funds to invest.   A business coach will also guide you with your feasibility studies for either creating a startup, investing in an acquisition or helping you validate the most ideal franchise for you. Consider the resource of time and money that you will lose in the case of a rejected E2 visa, as you will need to invest in non-refundable moneys before applying for the visa. Here is an even worse scenario: you have received the E2 visa approval, have moved yourself and family to the US, yet your business idea fails. Perhaps you selected an inadequate real estate location for the business, or you simply picked the wrong business for your needs and your skills. It is hard enough for anyone to succeed in business, but for foreign investors and new expatriates, the challenges are incommensurable. A more effective approach is to begin by selecting a business expert who will be your go-to US advisor for your business research, and your connector to other experts such as immigration, business, franchise attorneys, accountants, real estate agents, insurance agents, and other experts that you will need when the business has been launched. Your business coach and your immigration attorney will respectively help you navigate: 1) your best choices for a E2 visa adequate business models and 2) advise you on the E2 visa process and ensure that your E2 visa application is packaged for the requirements of a successful USCIS stamp of approval.

It is no coincidence that over half of all small businesses in the US are owned by immigrants (NYT) and 43% of America’s most valuable Fortune 500 companies, were founded or co-founded by an immigrant or the child of an immigrant (CFAE.) In spite of its flaws, America is still perceived as the place to shed one’s limiting beliefs and create a new life. It is after all, the land of opportunities where the pursuit of happiness is mandated. Much of that pursuit fuels the entrepreneurial spirit that one must have to make it in crossing any real or self-imagined frontiers. By self-selection and since the dawn of this great nation, the entrepreneurial drive of immigrants is embedded in the DNA of the American way of life. I admire the fire in the belly of those, born citizens or expats, who yearn for the promises of a self-sufficient life. For the E2 visa applicants who have access to liquid capital and who are lucky enough to be citizens to one of the 80 countries engaged in a reciprocity treaty with the US, starting a business and making a life in the land of opportunities is a reachable and worthy dream. For others from non-treaty countries, the EB5 visa, although requiring a larger investment, is another possibility that we will examine in future discussions.

Appendix A: 80 Countries with Investor Visa Treaty Reciprocity with the US:

Source: U.S. Department of State, travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html.