The E-2 visa : What makes a business marginal?

What is marginality?

To qualify for an E-2 visa, an investor must show his or her business is not marginal, or that it has the capacity to generate more income than simply the living costs for the investor and his or her family. (8 C.F.R. Section 214.2(e)(15))

This capacity does not have to be at the time of filing, but it does need to be within a five year time frame from the date the business begins operating. Essentially, the US government wants to make sure that your business will do more than simply provide for your family.

How do you show that your business is not marginal?

Factors which show that a business is not marginal include evidence that the investment will expand job opportunities (by hiring local employees), that it will generate income above what would be considered a living as well as any other sources of income, and that the investor will not simply work as a skilled or unskilled worker.

The most important evidence that you can include in your filing is a detailed business plan which should forecast the next five years. Within it, points to include are :

  • How many full-time and part-time employees the business plans to hire,
  • Profit projections for the next five years*, and
  • Any other investment that the business may generate (which is of lesser importance).

*Tip : When drafting your business plan, imagine you are applying for a business loan -- and work to convince the Consular Officer, in a similar manner as you would a Bank Manager, that the business will produce a profit.

Other evidence which may support your business plan include U.S. or foreign individual tax returns, financial statements and payroll summaries.

The points this evidence show should be echoed in the accompanying brief. The embassy or consulate will then weigh the above factors to determine whether your business will fall outside the definition of marginality.

To discuss an E-2 visa with one of our experienced lawyers, please call +44 (0)203 102 7966