Guest Post: Do Investor Visa Petitions Require Business Plans?

Lauren Cohen, Founder and President of eCouncil Inc.com, is an attorney licensed in both the U.S. and Canada and an active AILA member and speaker.  Having immigrated from Canada, Lauren has first-hand knowledge of the visa process.  She developed e-Council Inc.com to focus on designing professional Business Plans for all types of business visas, ranging from E-1 and E-2 to H-1B and L-1A, with a special focus on EB-5 projects for direct investments and regional centers. e-Council Inc.com not only creates the right business plans to complement visa applications, but also works closely with business owners to develop their business models and strategies in the process.

Whether required or not, Investor Visa Petitions are all incomplete and risk a Request for Evidence (RFE) or, even worse, a denial without a Business Plan.  A Business Plan provides supporting evidence necessary for USCIS or the Consular Officer to determine if the business is viable, has a likely chance of success, will contribute to the U.S. economy in a meaningful way, and if the beneficiary(ies), employer(s) and/or the business itself satisfy the specific requirements of the applicable Visa.  Therefore, even though not specifically mandated, business Visa petitions benefit tremendously from a professional Business Plan that demonstrates and details the business model, structure, and goals.  As noted, without a Business Plan, the Visa risks processing delays due to Requests for Evidence that are likely to be issued, or denials which are extremely challenging and costly to overcome.

EB-5 Visas

An EB-5 petition is the only Visa petition to expressly require a Business Plan.  USCIS, through the body of laws regulating business immigration to the U.S., further requires proof of job creation for an EB-5 Visa petition, which is to be evidenced in the mandated Business Plan.  As stated:

The job creation analysis for each economic activity must be supported by a copy of a Business Plan for an actual or exemplar capital investment project for that category.  Note: A Business Plan provided in support of a regional center application should contain sufficient detail to provide valid and reasoned inputs into the economic forecasting tools and must demonstrate that the proposed project is feasible under the current market and economic conditions.  The form of the EB-5 investment from the commercial enterprise into the job-creating project (equity, loan, or some other financial arrangement) should be identified.

The Business Plan should also identify any and all fees profits, surcharges, or other like remittances that will be paid to the regional center or any of its principals or agents through EB-5 capital investment activities.  (Department of Homeland Security, USCIS, OMB No. 1615-0061, Instructions for Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program, at p. 2.)

In the Regional Center context, a Business Plan is used to support, “in verifiable detail,” that the EB-5 investment for the new business enterprise will not be in conflict with the Regional Center’s Business Plan.  Notably, “When we approve a regional center, we acknowledge that the econometric models and Business Plans appear to be feasible and that jobs should be directly or indirectly created through investment in the approved industry categories.”  (United States Citizenship & Immigration Services Webpage, EB-5 Regional Centers, located at http://www.uscis.gov/.)

In 1998, the Associate Commissioner made a determination in the case of In re Ho.  This decision was and continues to be significant, explicitly detailing that EB-5’s require “a comprehensive Business Plan” (emphasis in original) that should contain the following elements:

1. a description of the business,
2. the business structure,
3. a marketing plan with target market analysis,
4. personnel experience,
5. a competitive analysis,
6. required licenses and permits,
7. staffing timetable for hiring, job descriptions, and
8. a budget and financial projections.

Significantly, it was noted that: “Most importantly, the Business Plan must be credible.”  (In re Ho, at p 213 – commonly referred to as MATTER OF HO).  Thus, the credibility of the Business Plan has become the pivotal factor, and EB-5 professionals are generally cognizant of this fact and will not prepare or submit Business Plans that they do not deem to be credible on their face.

This Matter of Ho decision set the standard for all future EB-5 Business Plans, and remains for the most part intact, with minor modifications and variations in interpretation depending on the specifics of the case and the type of EB-5 (ie: direct investment vs. regional center project).  Drafting an all-encompassing Business Plan is a complicated, time-consuming process that requires extensive research, industry marketing information, cognizance of the business structure and model, and an understanding of the key factors and evidence sought by USCIS.  While the business owner is often the best person to provide information about the business, (s)he is often constrained by time, lack of writing talent, and an absence of understanding of the Visa petition process and the requisite components of an EB=5 Business Plan.  Thus, the most prudent step that those pursing the EB-5 route can take is to retain a professional team to write the Business Plan incorporating the information supplied them in compliance with the requirements.

E-1, E-2 and L-1 Visas

A Business Plan is equally critical to all non-immigrant business Visa petitions.  Increasingly, the reviewing agencies submit Requests for Evidence asking for a comprehensive Business Plan as support for the feasibility of the business and its contribution to the U.S. economy.  More often than not, Business Plans prepared by the petitioner are similarly kicked back as falling short.

In an E-Visa context, demonstrating that the investment (E-2) or trade (E-1) will be substantial or sufficient to satisfy the applicable treaty standards while showing that a successful business is planned is essential for approval.  What better way to show that the trade between the treaty countries (the U.S. and the home country of the beneficiary) is sufficient to meet the E-1 Visa requirements, or that the investment amount is “not marginal” so as to satisfy the E-2 Visa’s “substantial investment” threshold, than through a professionally-written Business Plan.

Similarly, establishing the intercompany transferee’s executive/managerial role in both the foreign country and proposed role in the U.S. is essential to satisfy the L-1A Visa requirements, among a growing list of other L-1A criteria that is changing on an almost-daily basis.  Proving that an intercompany transferee for an L-1B Visa has specialized knowledge and clearly delineating that knowledge is crucial for a successful petition in this area.  In both cases, a detailed analysis of the proposed beneficiary’s background and intended role with the petitioning company will offer evidentiary support that the beneficiary has specialized knowledge or is suited for an executive or supervisory position in applicable situations.

A professional Business Plan will not only include the nature of the business and the business model, the business’s mission, goals and objectives and a general marketing plan, but also details the structure of the business, its personnel, and the financial projections for the business. It will also outline how the business will positively impact the U.S. economy from various perspectives, and often will include a variety of charts, graphs and visuals so as to increase the appeal to the reviewing officials.  Outlining the nuts and bolts of the specific business in question along with the start-up and reasonable, fact-based projections with explanatory assumptions will clarify to the USCIS the viability of the business and, if an E-2 Visa, the reasonableness and risk factor of the “substantial investment”.  The detail with which a Business Plan should be composed creates evidentiary proof of the necessary factors needed for application approval.

National Interest Waivers (NIW’s)

A National Interest Waiver (NIW) petition is a part of the EB-2 category of second preference, employment-based immigration which leads directly to a Green Card.  Normally, a permanent job offer and an approved labor certification are pre-requisites to filing an employment-based, second preference immigration petition.  However, the NIW petition requests that the labor certification requirement be waived for the sake of the “national interest of the United States”.  In an NIW case, the burden of proof is on the applicant to establish that exemption from the labor certification will be in the national interest of the U.S.

Because of the nature of NIW petitions, it is vitally important that the petitioner show detailed and tangible evidence of past valuable contributions by the petitioner.  This evidence can be documented by showing the petitioner’s successful role in past business or academic projects.  In such cases, a business plan outlining the petitioner’s past accomplishments as well as present and future goals that is organized in a manner to highlight the petitioner’s significant and unique contributions can be a persuasive tool to present to the USCIS examiner.  For example, a business plan can document, in a form that USCIS examiners are used to reading, that the petitioner has already turned around a business, improved the economy, and created jobs in a way that would be vital to national interests.  The more evidence that the petitioner can present in the NIW context, the better chance of a favorable ruling.  Retro-oriented business plans can be a valuable part of that evidence.

Proposed changes to immigration laws contained in the Senate bill passed this summer would create two new types of visas: the temporary X visa, for entrepreneurs who don’t plan on staying in the U.S. permanently, and the EB-6 visa, which can lead to residency.  In each case, visas are available to entrepreneurs who hit thresholds for investment capital raised, jobs created, and revenue earned.  The EB-6 visa petition would specifically require the submittal of a business plan, which we can assume will follow EB-5 business plan requirements relating to detail and mandated elements.  The proposed X visa has investment threshold and job creation requirements that are also well-suited to documentation through a business plan.

A Business Plan is generally a roadmap for the business, designed to pave the way to its short- and long-term success.  However, as is the case in a Visa petition, the Business Plan can also be used to tell the story, provide an explanation, and give evidence and even a record of past accomplishments to further support the application.  A Visa petition lacking a sound, well-composed, and analytical Business Plan will likely face challenges at every turn, and will almost certainly be delayed by the USCIS seeking further evidence.

To find out more about professional, well-researched, articulate, expository narrative Business Plans, crafted specifically to address USCIS’s concerns, contact e-Council Inc.com for further information at info@ecouncilinc.com.