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VR Business
Brokers of SW Florida has sold over 100 businesses
where the investor secured a U.S. visa as part of the process,
including nonimmigrant (E-2, L-1 and H-1B) and immigrant (EB-5)
visas. We strongly recommend you contact an experienced U.S.
immigration attorney. See Resources > Professionals
for a list of multilingual immigration law firms and other
professionals you may want to contact when buying or selling
a business.
Our experience indicates the best businesses
and applicants for an E-2 visa have the following characteristics:
• Low risk (e.g., service oriented)
• Family employment opportunities present
• Well established (a national franchise is usually
acceptable)
• Buyer friendly (e.g., learnable business that does
not require special knowledge)
• Expansion opportunities possible
• Investor may not have been convicted of a serious
crime
• Real estate investment does not count
• Business must be actively engaged in producing goods
and services
• Must have verifiable tax returns
• Generally, $100,000 of the purchase price must be
in debt free cash deposited and verified in a U.S. escrow
account before the visa application will be processed
• No notes or purchase money mortgages unless more than
USD $100,000 invested
• Must have at least one U.S. employee
• Business plan must show direction
• Business should have a solid net profit (tax return
shows positive net income or break even for the past 3 years)
• Owner’s benefit should be at least USD $70,000
after add backs. Add backs include net income, owner’s
salary, interest, depreciation and owner’s medical insurance
expense.
• Investors’ net worth should be at least USD
$150,000
Treaty
Investment Visa E-2
The E-2 nonimmigrant visa authorizes a citizen of a treaty
country to oversee their investment in the U.S. or work with
a U.S. business which is at least 50% owned by citizens of
the treaty country. The visa can be extended every two (2)
years without limitation on the total period of stay. The
spouse and minor children may accompany or follow to join
the E-2 principal. Employees from the treaty country, including
executives, managers and essential employees are eligible
for the E-2 visa.
E-2 Treaty
Investor Visa Requirements
The E-2 visa requires (1) a treaty allowing investment in
the U.S between the U.S. and the country of which the person
is a national; (2) the investor is a treaty national or a
qualifying organization (50% or more owned by treaty nationals);
(3) the applicant is actively in the process of investing
a substantial amount of capital (generally at least USD $100,000,
debt free); (4) entering the U.S. to develop and direct the
investment, or entering the U.S. to work in an executive,
managerial or “essential employee” capacity; and
(5) the U.S. investment is fifty percent (50%) owned by a
treaty national or qualifying organization.
Treaty
Countries
Many countries have investment treaties with the United States
which qualify for the E-2 visa. Last we looked, the list of
treaty countries included:
Albania, Argentina, Armenia, Australia, Austria,
Azerbaijan
Bangladesh, Belarus, Belgium, Bosnia, Bulgaria
Cameron, Canada, Colombia, Congo (Brazzaville), Costa Rica,
Congo (Rep. Democrat), Croatia, Czech Republic
Ecuador, Egypt, Estonia, Ethiopia
Finland, France
Georgia, Germany, Grenada
Haiti, Honduras
Iran, Ireland, Italy
Jamaica, Japan, Jordan
Kazakhstan, Korea, Kyrgyzstan
Latvia, Liberia, Luxemburg
Latvia, Liberia, Luxemburg
Mexico, Mongolia, Moldova, Morocco
Netherlands, Nicaragua, Norway
Oman
Pakistan, Panama, Paraguay, Philippines, Poland
Romania, Russia
Senegal, Slovakia, Slovenia, Spain, Sri Lanka, Sweden, Switzerland,
Surinam
Taiwan, Thailand, Togo, Trinidad-Tobago, Tunisia, Turkey,
Ukraine, United Kingdom, Uzbekistan
Yugoslavia
Zaire
Premium
Processing
The INS has a business service called Premium Processing where
the INS responds within 15 working days from the date of the
receipt of the application. There is $1,000 INS filing fee
for the Service. This fee is an addition to other applicable
filing fees that the applicant must pay.
Approval
of the Visa
The Immigration and Naturalization Service has jurisdiction
to change status to E-2 and the U.S. Department of State,
through U.S. Consulates, have jurisdiction to approve E-2
visa classification.
The INS issues an approval notice as evidence
of the principal investor or key employee's E-2 status. The
approval notice allows the employee to work for the petitioning
company only. Dependents are issued approval notices as evidence
of their E-2 status. The U.S. Consulate issues the E-2 visa
in the passport as evidence of the principal investor or key
employee’s E-2 status. The visa in the passport is annotated
with the name of the petitioning company.
Work Authorization
for Spouse
The spouses of E visa holders are allowed work authorization
in the U.S. Spouses of E visa holders file for work authorization
with the INS Service Center and pay the applicable filing
fees. The investor, employees and dependents must have E-2
visas in their passports for travel back to the U.S. This
application is made at U.S. Consulates and is referred to
as visa consular processing.
E-2
Applicant
�� Resume (with
detailed description of job duties and dates of employment)
�� Diplomas, degrees,
and certificates
�� Evidence of
nonimmigrant status if present in the U.S. (visa, I-94, approval
notices)
�� Passports of
E-2 Applicant and all dependents (passports valid for at least
6 months)
U.S.
Company or Business Enterprise
�� Certificate
of Incorporation and Articles of Incorporation
�� Stock certificates
(showing total ownership of the company)
�� Business sale
agreement or stock purchase agreement
�� Business information
(history, facilities, products, number of employees, clients)
�� Business appraisal,
business valuation or prospectus
�� Business registration,
business license, business permits, fictitious names (DBA's)
�� Commercial lease
�� Brochures, catalogs,
promotional and product literature, and advertisements
�� Invoices, contracts,
bills of lading, and other business documentation
�� Photographs
of the business (if applicable)
�� Corporate tax
returns (IRS 1120, IRS 941, employee W-2 and 1099’s)
�� Financial statements
(balance sheet, income statement)
�� Bank account
statements
�� Bank wire transfers;
certified checks or other documentation of investment in the
U.S.
Foreign
Company (if applicable)
�� Certificate
of Incorporation and Articles of Incorporation
�� Business information
(history, facilities, products, number of employees, clients)
�� Business registration,
business license, business permits
�� Commercial lease
�� Brochures, catalogs,
promotional and product literature, and advertisements
�� Invoices, contracts,
bills of lading and other business documentation
�� Photographs
of the business (if applicable)
�� Corporate tax
returns
�� Financial statements
(balance sheet, income statement, payroll taxes, W-2, 1099)
�� Bank account
statements
Executive
or Manager Intracompany Transferee Visa
The L-1A visa authorizes temporary employment of an executive
or upper level manager transferred from a foreign company
to a related U.S. company. The visa can be extended for a
total of 7 years.
Visa Requirements
The L-1A visa requires (1) a foreign company and a U.S. company
to be related as a parent, branch, subsidiary or affiliate;
(2) the companies must be currently doing business; (3) the
employee must have at least one year of executive or upper
level managerial experience with the foreign company; and
(4) the employee must be employed as an executive or manager
with the U.S. company.
New Office
L-1A
Foreign companies are allowed to establish U.S. companies
and petition for L-1A visas for executives and upper level
managers to begin company operations. The company and Beneficiary
must meet the same basic requirements as the L-1A visa.
The U.S. company must submit a commercial
lease to show it has adequate office space for operations
and bank account statements or wire transfers to show that
is has adequate funds to begin operations. The company must
submit evidence that within one year the U.S. operation will
support an executive or managerial position. The petition
must include information about the U.S. company including;
the type of business, organizational structure, financial
goals, and the size of the U.S. investment. The petition must
include information about the foreign company including; the
organizational structure and the financial ability of the
company to support the U.S. company.
Premium
Processing
The INS has a business service called Premium Processing where
the INS responds within 15 working days from the date of the
receipt of the application. There is $1,000 INS filing fee
for the Service. This fee is an addition to other applicable
filing fees that the applicant must pay.
Approval
of the Visa
The INS issues an approval notice as evidence of the employee's
L-1A status. The visa allows the employee to work for the
petitioning company only. The employee's dependents are issued
approval notices as evidence of their L-2 status.
The employee must have an L-1A visa stamped
in the employee's passport for travel out of and return to
the U.S. This application is done at U.S. consulates outside
the United States and is referred to as visa consular processing.
The employees and dependents must have L-1 visas in their
passports for travel back to the U.S. This application is
made at U.S. Consulates and is referred to as visa consular
processing.
Work Authorization
for Spouses
The spouses of E visa holders are allowed work authorization
in the U.S. Spouses of L visa holders file for work authorization
with the INS Service Center which will be granted for the
period of authorized stay granted the L-1 principal.
Employee
�� Resume (with
detailed description of job duties and dates of employment)
�� Beneficiary's
experience letter (title, dates of employment and qualifications)
�� Beneficiary's
diplomas, degrees, and certificates
�� Evidence of
Beneficiary's status (visa, I-94, approval notices)
�� Dependent's
information (date of birth, country of birth, relationship,
current address)
U.S.
Company
�� Certificate
of Incorporation and Articles of Incorporation
�� Stock certificates
(showing total ownership of the company)
�� Business registration,
business license, business permits, fictitious names (DBA's)
�� Organizational
chart
�� Company information
(history, facilities, products, number of employees, clients)
�� Commercial lease
�� Brochures, catalogs,
promotional and product literature, and advertisements
�� Invoices, contracts,
bills of lading, and other business documentation
�� Corporate tax
returns (IRS 1120, IRS 941, employee W-2 and 1099’s)
�� Financial statements
(balance sheet, income statement)
�� Bank account
statements
�� Wire transfers;
certified checks or other evidence of capitalization in the
U.S.
Foreign
Company
�� Certificate
of Incorporation and Articles of Incorporation
�� Business registration,
business license, business permits
�� Organizational
chart
�� Company information
(history, facilities, products, # of employees, clients)
�� Commercial lease
�� Brochures, catalogs,
promotional and product literature, and advertisements
�� Invoices, contracts,
bills of lading and other business documentation
�� Corporate tax
returns
�� Financial statements
(balance sheet, income Statement, asset & deficit, payroll)
�� Bank account
statements
Professional
or Specialty Occupation Visa
The H-1B visa authorizes employment of a worker in a professional
or specialty occupation. The visa can be extended for a total
of 6 years.
Visa Requirements
The H-1B visa requires (1) a professional or specialty occupation
position that requires a minimum of a bachelors degree; (2)
the employee has that degree or its educational/employment
equivalent; (3) a salary which meets the prevailing wage determination;
and (4) a Labor Condition Application (LCA) annotated by the
Department of Labor (DOL).
The employer must agree to pay return transportation
expenses to the employee's home country if the employee is
dismissed before the end of the authorized period of stay.
The employee can sign a statement agreeing not to request
such expenses. The employer is not responsible for such expenses
if the employee voluntarily ends employment or the authorized
period of stay expires.
The H-
1B Visa Petition
Prevailing Wage Determination: The Company must pay the beneficiary
a salary within 5% of the wage of similarly situated employees.
Our firm obtains a Prevailing Wage Determination from the
Texas Workforce Commission (TWC) for the beneficiary's position
for that geographic area.
Labor Condition Application: The INS requires
the U.S. employer to file a Labor Condition Application (LCA)
with the Department of Labor (DOL). Our firm prepares the
LCA for review by the company. We file the LCA with the DOL
which processes the application within 7 days.
The LCA requires the company to agree to
specific terms for the benefit of U.S. workers. First, the
company will pay the beneficiary the same salary as other
similar employees. Second, the company affirms that the employment
of the beneficiary will not adversely affect the working conditions
of other similar employees within the company, and that there
is no strike, lockout, or work stoppage as part of a labor
dispute within the company. Third, prior to filing the LCA,
two notices were posted at conspicuous places at the company.
The notices contain specific job information including the
job title and salary of the position. If there is a bargaining
representative for such employees, notice to that representative
is required rather than the posted notices.
Within a day of filing the LCA, supporting
documents must be available for review at the place of employment.
The BCIS and the DOL may review such documents.
H-1B Petition and Supporting Documents. The H-IB petition
includes several INS forms; a support letter on company letterhead
with details of the company, the position and qualifications
of the employee; company documentation; and evidence of the
qualifications of the employee.
Approval
of the H-1B Visa
The INS issues an approval notice as evidence of the employee’s
H-1B status. The H-1B visa allows the employee to work for
the petitioning company only. The employee’s dependents
are issued approval notices as evidence of their H-4 status.
The employee must have an H-1B visa stamp
in the employee’s passport for travel out of and return
to the U.S. This process of getting the visa is referred to
as visa consular processing. Our firm assists clients and
their families in applying for their visas at the U.S. Consulates
as an additional legal service. Please contact our office
for detailed information.
Employee
(Beneficiary)
Photocopies
only
��
Current passport (identity pages and all pages with any U.S.
visa, stamp or notation)
��
I-94 Card (front and back)
��
Previous INS approval notices (H-1B; F-1; I-20; IAP-66; Employment
Authorization Card)
��
Detailed resume
�� Educational documents (Diplomas, certificates,
transcripts, educational evaluations)
If
documents are not in English, exact English translations are
required
�� Passports and I-94 Cards of all accompanying
family members
Employer
(Petitioner)
��
Proposed position
Job title, detailed job description, salary, and education
and experience requirements
�� Annual reports
�� Company brochures
The EB-5 investor visa gives permanent residence
to aliens who invest $500,000 to $1 million in a new U.S.
commercial enterprise that creates 10 full-time jobs. The
spouse and minor children of the beneficiary are eligible
for derivative status as permanent residents.
Requirements
of the Investor Visa
The investor visa requires (1) establishment of a new commercial
enterprise; (2) investment of $500,000 to $1 million; (3)
lawfully obtained capital; (4) creation of 10 full-time jobs;
and (5) active management of the enterprise by the investor.
1. Establishment of a new commercial enterprise.
Establishment of the new commercial enterprise after November
29, 1990 is shown through a certificate of incorporation,
articles of incorporation, partnership agreement, joint venture
agreement or certificate of authority to do business in the
state.
* Expansion of an existing business qualifies if there is
a substantial change, of at least 40%, in the net worth of
the business or the number of employees.
2. Investment of $l million. The minimum
amount of capital invested is $1 million. The funds must be
actually invested in the enterprise. Evidence that the investor
has invested the funds or is in the process of investing includes:
bank statements and transfers showing deposits to the business
accounts of the enterprise, assets purchased by the enterprise,
property transferred for the enterprise, and loans for the
enterprise secured by assets of the investor.
* If the enterprise is in a targeted employment
area, the minimum amount of capital is $500,000. Targeted
employment areas are generally rural areas or areas of high
unemployment of at least 150% of the national average.
3. Evidence of lawfully obtained capital.
The funds invested must be from a lawful source. Evidence
includes: foreign business registration, foreign corporate
or partnership documentation, and business and personal income
tax returns of the investor.
4. Creation of 10 full-time jobs. The enterprise
must create 10 full-time jobs for U.S. citizens or U.S. permanent
residents. The spouse or children of the investor cannot fill
the positions.
5. Management of the enterprise by the Investor.
The investor must actively oversee the enterprise. Information
submitted includes: the investor's position and duties with
the enterprise, evidence that the investor is an officer of
the business or is otherwise directly managing the enterprise.
Conditional Permanent Residence and Removal
of Conditions
The Investor initially receives conditional permanent residence.
After 2 years the investor must show that all requirements
have been met and can then petition for full permanent residence.
Investor
�� Resume (with
detailed description of job duties and dates of employment)
�� Investor's diplomas,
degrees, and certificates
�� Evidence of
Investor's status (Visa, 1-94, approval notices)
�� Dependent's
information (Date of birth, country of birth, relationship,
current address)
U.S. Commercial Enterprise
�� Certificate
of Incorporation and Articles of Incorporation
�� Stock certificates
(showing the total ownership of the company)
�� Business registration,
business license, business permits, fictitious names (DBA's)
�� Organizational
chart
�� Company information
(history, facilities, products, number of employees, clients)
�� Commercial lease
or deed
�� Brochures, catalogs,
promotional and product literature, and advertisements
�� Invoices, contracts,
bills of lading, and other business documentation
�� Documentation
of employees (INS I-9, IRS W-4)
�� Corporate tax
returns (IRS 1120, IRS 941)
�� Financial statements
(balance sheet, income statement)
�� Bank account
statements, wire transfers and other evidence of investment
�� Bank loans
Foreign
Enterprise
�� Certificate
of Incorporation and Articles of Incorporation
�� Business registration,
business license, business permits
�� Organizational
chart
�� Company information
(history, facilities, products, number of employees, clients)
�� Commercial lease
or deed
�� Brochures, catalogs,
promotional and product literature, and advertisements
�� Invoices, contracts,
bills of lading and other business documentation
�� Corporate tax
returns
�� Financial documents
(balance sheet, income statement, asset & liabilities,
payroll)
�� Bank account
statements and wire transfers
Source: Fong & Associates, L.L.P. www.fonglegal.com
used with permission.
For help and
information in dealing with immigration laws go to our Professionals
page.
Please fill
out the Contact Us Form
for additional questions.
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