An E-2 visa is a great option for someone who wants to start a business or purchase an existing business in the United States. To qualify for an E-2 visa, you must invest money in the U.S., and ultimately hire U.S. workers.
The view the full set of E-2 visa requirements, click here.
While many of our clients are business start-ups, a growing number decide to purchase an existing business. One advantage associated with buying a well-established and profitable business is that you will not have to convince the Government about the Company’s viability. Instead, the E-2 visa requirement that your business be a viable one that will hire U.S. workers can be satisfied by providing 2 years of tax returns that show profit and employees. This article describes some things to consider when buying a business to obtain an E-2 visa.
Do I need a Purchase/Sale Agreement?
When you buy a business in the U.S., you typically sign a purchase/sale agreement which has the contract terms (eg. sale price) and other details. The agreement is included in your E-2 file and will be accompanied by details showing the purchase price being paid to the seller. Generally speaking, any contingencies in the purchase sale agreement should be satisfied prior to applying for the E-2 visa.
You can find out more about purchase sale agreements by clicking here.
You can find out more about considerations of buying a business in the U.S. by clicking here.
You can find out more about developing an E-2 compliant purchase sale agreement by clicking here.
Do I have to Perform Due Diligence when Buying a Business?
Buying a business is a great way to obtain an E-2 visa but it should be the right business. In order to make the assessment of whether the business is a good choice or not, you should perform due diligence. Due diligence is the exercise of reviewing the financial and other information about the company to assess whether it is worth what you are paying and/or whether the company will be viable.
To find out more about the due diligence process, click here.
What is a “Good” Business for an E-2 visa?
Many of our clients who are considering purchasing a business ask us the question: What is a Good Business for an E-2 Visa? One key set of documents to review to assess E-2 visa viability are the tax returns of the business. A review of the past 3 years is beneficial and you should focus on the profits and employees. Generally speaking, profit in each of the 3 years with salaries paid to employees (3 or more employees) are good indicators of E-2 visa viability. We have heard countless times that “it is a cash business so the “real” profit is not reflected in the tax return.” If “real” profit is not reflected in the tax returns it does not exist for the purposes of the E-2 visa.
Many of our clients send us financial information for prospective businesses and we provide guidance on whether the business will be E-2 visa viable.
Should I use an Escrow Agreement?
When buying a business to obtain an E-2 visa, a buyer has the choice of transferring the purchase price to the seller or setting up an escrow arrangement and transferring the funds to an escrow agent. While a seller would certainly prefer funds to be transferred to him/her before the visa has been approved, many buyers are reluctant to do this as they have not obtained the visa yet. As the Government recognizes the risk associated with getting funds back if a visa is not approved, they permit that the funds be transferred to an escrow agent rather than to the seller, provided the only condition associated with the transfer is the approval of the E-2 visa.
To find out more about Escrow Agreements for E-2 visas click here.
Which Documents should be Submitted for a Business Purchase for an E-2 Visa?
In addition to the purchase sale agreement and escrow agreement, the following documents should be included in the petition:
- Addendum to the purchase sale and/or escrow agreement describing that all contingencies have been satisfied. This would only be applicable if the purchase/sale agreement referenced contingencies.
- 2 years of tax returns showing profit – If the company is profitable, the tax returns can be used to show that the business is viable and supports hiring employees. Attention should be paid to the salary line in the tax return which should show payments to employees as well as overall company profit. If the business is not profitable or does not have employees, you will have to provide information (eg. a business plan) to show what plans you have to make the company profitable.
- W-2 forms for employees
- Bank statements showing the purchase price funds transfer
- Lease if applicable
To find out more about the new rules or other investor visas, contact Scott Legal, P.C.
Ian E. Scott, Esq. is the Founder of Scott Legal, P.C. He can be reached at 212-223-2964 or by email at firstname.lastname@example.org.
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