Every year, thousands of immigrants come to the United States searching for the “American Dream” in “the land of opportunity.” We have seen these iconic phrases written in bumper stickers, printed in shirts, and heard them in speeches and popular songs, but what exactly do they mean? The late Senator Edward M. Kennedy, one of the most influential voices in modern U.S. immigration laws, tried to explain the meaning of these phrases saying “[American] streets may not be paved with gold, but they are paved with the promise that men and women who live here. . . can rise as fast, as far as their skills will allow, no matter what their color is, no matter what the place of their birth.” As Senator Kennedy said, the “opportunity” is that the U.S. rewards hard work, and the “dream” is that with hard work, everyone can rise fast and far. These ideas are not just political slogans though; they are also very present in the American legal system, including immigration laws and regulations, and there are various visas available for entrepreneurs, investors, and multinational executives.
Visa Franchise LLC guides investors in identifying and analyzing the best investment opportunities tailored to their specific objectives. We are the trusted advisor for foreign nationals who qualify for the E-2, EB-5 and L-1 visas and would like to own a U.S. franchise, with a minimum investment amount of $150,000. The E-2 Treaty Investor visa was designed for individuals from certain treaty countries who wish to make financial investments in U.S. businesses, and who want to come to the U.S. to direct and develop their businesses. The E-2 visa is an excellent option for new or existing U.S. franchises as visa applications based on these types of businesses have a higher rate of success. Below we explain the legal requirements for the E-2 visa and discuss how franchise investments can qualify for the visa. Specifically, in order to qualify for the E-2 visa, investors must demonstrate the following:
Investors must prove that a valid treaty exists between the United States and their country of citizenship. Individuals that have dual citizenship with one of these countries may apply for the E-2 visa.
- Individual and/or business possess the nationality of the treaty country;
Investor’s must demonstrate that the funds being used to invest in the U.S. business were in possession and control of nationals of one of those treaty countries. This can be a complex issue when a corporate entity is making the investment instead of an individual, and in that case, the nationality of the funds will be the same as the nationality of the majority of the owners of the corporation that made the investment.
- Applicant has invested or is actively in the process of investing;
Investor’s must demonstrate that they have already invested the money into the business or are very close to doing so. This means that they have already incorporated the U.S. business, signed lease for premises, purchased equipment, and etc. It is important to note that the U.S. government requires that the investment happen BEFORE the application for the visa, and this can be a very scary for many investors.
Visa Franchise has strong contacts with various national franchises and we can leverage our relationships to negotiate franchise-purchasing agreements that are conditioned on the approval of the visa. This will provide security for our clients that they will get their money back if the visa application is delayed, as well as assure the franchise brand that the investor will pay the appropriate fees when the visa does get approved.
- Enterprise is a real and operating commercial enterprise and that it is not marginal;
Marginal businesses are those that only make enough money to support the investor and his/her family, but the U.S. government wants to make sure that these businesses intend to grow much more than that. As such, Investors must present detailed 5-year business plans showing how the business will operate, how it will make money, and how it will grow and contribute to the American economy.
One of the main benefits of investing in well-known U.S. franchises, such as the ones we work with, is that they have a strong track record of success. As such, consular officers are more likely to recognize them and approve the applications. Additionally, consular officers prefer more “traditional” businesses that have a storefront, inventory, and equipment, instead of “speculative” ones such as consulting firms for example.
- Applicant’s investment is substantial;
While there is no minimum investment amount for the E-2 visa, the regulations require that the investment be substantial in proportion to the total cost of the business. To illustrate this point, consider a new franchise business that has a total start-up cost of $300,000. In this case the individual would have to invest approximately $200,000-225,000 for the investment to be considered substantial. On the other hand, the regulations also suggest that if the total start-up cost is less than $100,000, then the individual should invest 100% of the amount, or very close to it.
With franchise investments, we can describe in great detail how the money will be spent and make it very easy for the consular officer to visualize what it takes to start and operate the business. This is different than certain new start-up businesses that may not be able to entirely predict their initial investment needs.
- Applicant is in a position to “develop and direct” the enterprise;
The Investor must demonstrate that it is an active investment and that he/she is qualified to develop and direct the new U.S. business. While the Investor may certainly hire subordinate professionals, and they are encouraged to do so, they must show that they will have hands on participation in the day-to-day operations.
Unfamiliarity with the language, the new market, and the complex U.S. legal system can hinder an investor’s ability to develop their business in the U.S., no matter how good the product is. Another key benefit of investing in a U.S. franchise is that the franchise brand is very engaged in the business and will offer guidance and assistance in the operation of the business to ensure its success. As such, investors can invest with confidence knowing that they can count on experienced franchise professionals to help them in the management, operations and growth. This may not be the case with other types of new businesses.
The E-2 visa is a great option for investors from treaty countries that are considering investing in a U.S. franchise.
Additionally, certain foreign investors may qualify for the L-1A Intracompany Transferee visa. The L-1A allows executives and managers of multinational corporations to transfer between affiliated branches. This visa also permits a foreign company that does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of opening one. This is a good option for individuals who own and manage their own businesses in their home countries and are planning on expanding their operations in the U.S. or simply opening a new business altogether. Below are the legal requirements for the L-1A visa and how franchise investments can qualify for the visa. To qualify for the L-1A visa, the U.S. Company must demonstrate that it:
- Has a relationship with a foreign company and it is actively doing business in both countries;
The U.S. Company must demonstrate that it is a parent, branch, subsidiary, or affiliate of the foreign company by virtue of being owned and controlled by the same person or third company. It is important to note that while both businesses must be active during the duration of the visa, they do not have to be in the same field.
As such, individuals who own their own law firms, medical practice, or any type of business, may invest in U.S. franchise and apply for the visa so long as they can demonstrate a common ownership between the two.
- Have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States in an executive or managerial capacity; and
The terms “executive” and “manager” have very specific meanings in U.S. immigration laws. “Executive Capacity” generally refers to the employee’s ability to make decisions of wide latitude without much oversight. “Managerial Capacity” generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. The individual has to demonstrate that he occupied such a position abroad by showing organizational charts, level of employees, etc.
- Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.
The individual also has to demonstrate that he/she will occupy an “executive” or “manager” position in the U.S. business. One benefit of investing in a U.S. franchise is that franchises usually require at least two levels of employees, such as workers and store managers. By hiring these employees to work on the franchise, investors can demonstrate that they will be managing and overseeing the store manager and thus qualify him as an “executive” or “manager” in accordance with the L-1A visa requirements.
The above-described visas are only two of many pathways to come to the United States. They provide the opportunity for foreign investors to come to the U.S. to work hard on developing their own businesses and rise as fast and as far as they wish; that is the real American Dream as described by Senator Kennedy. Investing in a new business in a foreign country is undoubtedly a very important decision and should be carefully considered. Visa Franchise works in conjunction with experienced immigration attorneys that can help investors navigate the complex U.S. legal systems. Contact us today to find out more about these and many other investment opportunities in the U.S.
–Thanks to immigration lawyer, Rafael Lamberti for the contribution!