USCIS’s New Adjustment of Status Policy May Change How International Buyers Approach Business Transactions

For foreign entrepreneurs considering an E-2 Treaty Investor Visa, selecting and structuring the U.S. business is a central part of the case. A franchise can be an attractive option because it may provide an established operating model, defined startup expenses, training, branding, and ongoing support. Why Franchises May Work Well for E-2 Cases An Established Business Model A franchise may give the investor access to an existing brand, operating procedures, technology, vendor relationships, marketing systems, and performance standards. These materials can help explain how the proposed U.S. enterprise will operate, but the investor must still show that the particular business is real, active, and capable of providing a service or product from its inception. Defined Investment and Startup Costs The Franchise Disclosure Document and franchise materials commonly identify the franchise fee and estimated expenses for equipment, premises, training, marketing, inventory, and working capital. This can help document the total cost of the enterprise and how the investor’s funds will be used. For E-2 purposes, the investment must still be substantial in proportion to the cost of purchasing or establishing the business, and the funds must be committed and at risk. Training and Operational Support Many franchisors offer initial training, manuals, technology, marketing assistance, and launch support. These resources may strengthen the practical business plan, particularly for an investor entering the U.S. market for the first time. They do not replace the requirement that the E-2 investor develop and direct the enterprise. A Structured Approval and Launch Process A franchise process may include lead qualification, a discovery call, territory review, review of the Franchise Disclosure Document, financial qualification, discussions with leadership and existing franchisees, final approval, execution of the franchise agreement, training, and launch. The resulting documents may support an E-2 filing by showing the proposed territory, investment, training plan, operating requirements, and anticipated opening timeline. The Franchise Disclosure Document Under the Federal Trade Commission’s Franchise Rule, a franchisor generally must provide its current Franchise Disclosure Document at least 14 calendar days before the prospective franchisee signs a binding agreement with, or makes a payment to, the franchisor or an affiliate in connection with the proposed franchise sale. The FDD contains 23 categories of information, but it is not a government approval of the franchise or a guarantee of success. Core E-2 Requirements Still Apply The investor must be a national of a qualifying treaty country. The investor must have invested, or be actively in the process of investing, a substantial amount of capital. The funds must be lawfully obtained, committed to the enterprise, and placed at commercial risk. The enterprise must be real and active, not merely a passive or speculative investment. The investor must enter the United States to develop and direct the enterprise. The enterprise may not be marginal; it must have the present or future capacity to generate more than a minimal living for the investor and family or otherwise make a significant economic contribution. All license to operate the business must be in place at time E-2 is approved. Licensing Requirements Must Be Addressed Early Some franchises operate in regulated industries, including real estate, construction, healthcare, and financial services. Before committing to the transaction, the parties should determine whether the business entity, the individual owner, a designated broker, or another qualified professional must hold the applicable license. They should also confirm which activities may occur before licensure, whether a licensed manager or broker may supervise operations, and whether the franchisor will permit the investor to proceed prior to immigration and licensing conditions being met for the franchise owner. An investor may be able to acquire or conditionally commit funds to a franchise before receiving E-2 status. Department of State guidance recognizes that funds may be placed in escrow and made irrevocably committed subject only to visa issuance. Nevertheless, the E-2 application must present a credible path to lawful operation. A plan that depends on a future professional license should include the applicable state requirements, the expected timeline, any licensed personnel who will cover regulated functions, and protections if the visa or license is denied. Planning the Franchise and Immigration Process Together A successful franchise-based E-2 strategy requires coordination among the franchise transaction, business formation, funding, lease, licensing, staffing, and immigration filing. Investors should complete legal, financial, and franchise due diligence before committing substantial funds and should avoid performing unauthorized work or regulated activities before receiving the required immigration status and professional license. At Weiss & Moy, P.C., we assist international entrepreneurs with E-2 visa planning and refer out the franchise legal matters to a qualified professional. Please note any information in this article related to franchise matters must be checked with your local franchise lawyer before pursuing a franchise.

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