Introduction
Business plans that are used to support applications for US visas are different from standard business plans and must be created with different goals, content and structure.
Examples of US visa applications that rely on business plans include:
- E-2 investor visas
- This is particularly the case when the investment pertains to a new US enterprise
- L-1 visas
- EB-2 visas (with National Interest Waiver)
- This is particularly the case when the National Interest Waiver is for an entrepreneurial undertaking in the US
- EB-5 investment visas
US immigration officers rely on business plans to assess whether a business is viable and capable of complying with US immigration law. Such business plans must therefore anticipate what adjudicators look for and explain those commercial details in a clear and concise manner.
Business plans that avoid the following five mistakes can contribute to the success of applications for a US visa.
Mistake 1: Business Plan Does Not Comply with US Immigration Law
US immigration officers evaluate business plans in the context of various frameworks, including US legislation, Department of State guidelines and consular rules. A business plan that does not comply with those principles can torpedo the application for an immigrant visa.
For example, business plans that support applications for EB-5 visas must include content that complies with the requirements described in the case Matter of Ho. Although such business plans are not required to contain all the elements elucidated in Matter of Ho, immigration officers who review the business plans tend to look favorably on the plans that contain most (or all) of the Matter of Ho elements.
An understanding of the principles from Matter of Ho can also indirectly help when preparing content for business plans for E-2 visa applications, although the relevant legal principles for such business plans are outlined in the guidelines from the US Department of State. And when it comes to format, business plans for E-2 visa applications must comply with consular rules.
Moreover, the time horizon of the business plan depends on the type of visa sought. For example, while an application for an E-2 visa usually includes a five-year forecast, the business plan for an L-1 visa for a new office should include milestones that will be achieved within one year.
Proper structure and format—as well as the use of graphs and tables—also signal to the immigration officer who is reviewing the business plan that the applicant has a keen understanding of the market. Additionally, the business plan’s use of the optimal structure and formatting facilitates the adjudicator’s job by making it easy to identify the salient points for compliance with immigration law.
Mistake 2: Commercial Assumptions are Generic and not Tailored to the Specific Business
The temptation is sometimes great to simply submit with the visa application a business plan that was created using generative AI or a template found online. Unfortunately, it is reasonable to expect that such a business plan would result in a refused visa application.
A strong business model is based on an advantage over the competition. A strong business plan must reflect that differentiating factor. Using a generic template to create the business plan often results in a business plan that is weak.
Mistake 3: Forecasts are Not Supported by Commercial Assumptions
Some business plans are weak because they include many lofty goals and aspirations but omit data to support commercial assumptions.
This does not mean that generative AI or online searches should not be used when preparing business plans for visa applications. Quite the contrary. A good business plan relies on market analysis, a description of the competitive landscape and regulatory obstacles. ChatGPT and Google searches are great sources for doing desktop research. However, the results of that desktop research must be viewed critically, since it is well documented that generative AI provides information that is factually incorrect.
Mistake 4: Inconsistencies with Other Information in Visa Application
Some applications for US visas that require a business plan involve a long and complication process. For example, before an application for EB-2/NIW, EB-5 and L-1 visas can be submitted, a corresponding Petition (either I-140 or I-129) must be approved by USCIS. While the business plan is submitted early in the application process (as part of the Petition), the contents of the business plan should be aligned with information that will be submitted in later in the visa application process.
For example, adjudication of a visa application may be jeopardized if:
- The business plan that is submitted with a Petition for an L-1 visa includes job titles, hiring plans and investment plans but those plans change or are contradicted by evidence submitted with the Petition or visa application, or
- The information in a business plan that is submitted with an application for an E-2 investor visa that is associated with the formation of a US company contradicts information that is described in the operating agreement or bylaws of the new US company.
It is therefore helpful for the business plan to be created with forethought and anticipation of all components of the visa application process.
Mistake 5: Inconsistencies with Future Immigration Goals, Does not support long-term compliance and future filings
The immigration benefit that is conveyed by approval of a visa application is often the precursor for subsequent applications for other immigration benefits.
Looking at some examples where a business plan is submitted with a Petition (I-129 or I-140):
- A French entrepreneur might use an L-1 visa to open a new office in the US and decide one year later to apply for a US green card with EB-1C executive capacity.
- A German manager might use an E-2 visa to work for his employer’s new US subsidiary and later apply for a US green card with EB-1C managerial capacity.
- A Brazilian investor who received an EB-5 visa might apply to remove conditions on their green card after three years.
In the above examples, the business plan that was submitted with the original Petition years earlier may still impact certain aspects of the new Petition or application.
Looking at an example where a business plan is submitted with an E-2 investor visa application, it is important to remember that the E-2 visa that is issued to the E-2 investor only authorizes employment in the US for the US enterprise that was described in the E-2 visa application. If the business model changes (which happens frequently with new companies) and those changes are not reflected or anticipated in the business plan that was submitted with the visa application, the visa holder must notify USCIS and/or the consulate that issued the visa of those changes. If the consulate deems those changes to be substantially, a new visa application must be submitted (possibly with a new business plan).
To avoid the problem described in the above three examples, the business plan that is created for the original Petition or application should anticipate future modifications in the business model and future applications for immigration benefits.
Conclusion
A strong, well-crafted business plan can support applications for certain US visas and green cards. Attention must be paid to its content, nomenclature and format. It therefore can be helpful to have your business plan prepared by the same person who is experienced with US business formation and US visa applications.
At JORDAN COUNSEL, we gladly help overseas entrepreneurs and companies with their business plans, US business formation and visa applications. For assistance with the creation of your business plan, contact our law firm.
