Immigration Options for Buying a U.S. Business

Purchase price, invested capital, treaty ownership, control, and operations must be established.

Buying an existing operating business can support E-2 when the investor and enterprise satisfy treaty nationality, ownership, control, substantial investment, and nonmarginality requirements. The purchase record should distinguish the acquisition price from additional working capital and document how funds became irrevocably committed. Due diligence should confirm that the company is genuinely operating and that the investor will have authority to develop and direct it. A profitable existing business can be useful evidence, but the transaction still must satisfy the immigration rules independently.

Department of State guidance recognizes qualifying irrevocable commitment under appropriate terms.

An E-2 acquisition can sometimes be structured with escrow when the investor's funds are genuinely and irrevocably committed to the enterprise subject to visa issuance or another qualifying condition. The escrow terms should not leave the investor free to withdraw the money at will. Purchase agreements, escrow instructions, deposit records, and closing conditions should tell the same story. The structure should be reviewed before execution because an ordinary refundable deposit may not demonstrate the level of commitment required for an E-2 investment.

Ownership and control after closing must satisfy L definitions.

Acquiring a US company can create or change a corporate relationship, but the completed structure must actually fit the L-1 definitions for a parent, subsidiary, affiliate, or branch. The acquisition does not eliminate the beneficiary's qualifying foreign employment requirement or the need for the foreign organization to remain a qualifying organization. Ownership percentages, voting rights, acquisition documents, and post closing control should therefore be examined together. Buying a US business from an unrelated seller does not, by itself, create a multinational transfer case.

The NCE, investment, management, and job rules still must be satisfied.

Buying an existing company is not automatically an EB-5 investment. The transaction must be structured through a qualifying new commercial enterprise and satisfy the current investment, lawful source, management, and job creation requirements. Existing payroll cannot simply be counted without analyzing the applicable EB-5 job rules and the particular business structure. The purchase agreement should also identify where the investor's capital goes, because money paid to a seller and money contributed to the enterprise can have different consequences in the immigration analysis.

Payroll, tax returns, ownership, liabilities, licenses, and purchase allocation can matter.

Immigration due diligence should occur alongside ordinary financial and legal due diligence before closing. Review ownership records, payroll, tax filings, leases, licenses, litigation, liabilities, financial statements, existing employees, corporate governance, and the seller's representations. For L-1, confirm the proposed qualifying relationship and foreign organization. For E-2, confirm control and the committed investment. For EB-5, test the new commercial enterprise, capital flow, lawful source, and job plan. Problems discovered after closing can be much harder to restructure.

The purchase agreement should be coordinated with immigration strategy before funds become nonrefundable.

The same target company can support different immigration strategies depending on the buyer's facts. A treaty national who wants to operate the business directly may analyze E-2. A multinational company purchasing the business for US expansion may analyze L-1 if the corporate and employment requirements are met. An investor seeking permanent residence may analyze EB-5 if the transaction can satisfy the immigrant investment and job rules. The purchase agreement should be coordinated with the selected theory before material funds become nonrefundable.