E-2 Visa Due Diligence: Protecting Your U.S. Investment

Buying an American business is an exciting milestone, but it can be a minefield for the uninformed investor. Within the framework of an E-2 visa, this process takes on a strategic dimension: your success depends not only on the profitability of the business but also on its compliance with strict immigration criteria. This is where Due Diligence becomes essential.

Securing the "Non-Marginality" of Your Project

One of the most common grounds for E-2 visa denials is "marginality." A consular officer must be convinced that the business will do more than just provide a minimal living for you and your family; it must prosper and generate a real economic impact.

During your audit, you must track any discrepancies between the financial statements provided by the seller and the official Tax Returns filed with the IRS. If the declared profits are lower than what was advertised, your visa application is built on sand. A serious financial audit confirms that the invested capital is truly "at risk" and capable of supporting future growth.

The Commercial Lease: A Crucial Asset... But Not Always Mandatory

In most acquisitions, the commercial lease is the company’s most valuable asset. If immigration authorities believe you lack a stable physical location to operate, your business risks being viewed as not "real and active."

1. Key Watchpoints for Traditional Leases

If your activity requires a physical location (such as a restaurant, boutique, or service center), you must audit the Assignment Clause. A landlord can refuse to transfer a lease to a foreign national without a U.S. Credit Score. Furthermore, you must verify Triple Net (NNN) charges (taxes, insurance, and maintenance), as these can heavily impact your profitability and your non-marginality standing.

2. Exceptions for Service Businesses and Remote Work

It is important to note that a traditional commercial lease is no longer systematically essential for all business categories. In recent years, U.S. authorities have accepted that service-based businesses (consulting, IT development, digital agencies) may operate from a home office or coworking spaces.

However, this flexibility requires even more meticulous Due Diligence: you must prove that the nature of your business does not require a physical storefront and that your "substantial investment" is allocated elsewhere, such as in marketing, intellectual property, or specialized technological equipment.

Uncovering Hidden Liabilities

Rigorous Due Diligence scrutinizes hidden debts. Whether it is ongoing litigation with former employees or outstanding local tax arrears, inheriting these liabilities can paralyze your business. The audit must also confirm that all assets physically exist and legally belong to the company, thereby proving the concrete nature of your investment.

The Bottom Line

A successful relocation to the United States begins with a cold, clear-eyed analysis of your future acquisition. Whether your project requires a prestigious storefront or can be managed remotely, every contractual detail matters in securing your migratory status. The Deltin Law Firm provides its expertise to audit your purchase projects and ensure your structure perfectly meets E-2 visa requirements.

Contact our firm today to secure your investment through a specialized consultation.