Want to Start a Business in the U.S. and Obtain an E-2 Visa? What Does the Marginality Requirement Mean for an E-2 Visa

An E-2 Visa is a Visa that is available for entrepreneurs, investors and business owners who wish to live in the U.S. to develop and direct the operations of a business.  The business can be large or small and in order to qualify for the Visa, applicants must meet specific requirements.  The full set of requirements for an E-2 Visa are outlined in an article you can access by clicking here.

One of the requirements is that the business cannot be “marginal,” and the question often arises of exactly what that means.  In essence, this means that the business cannot be set up so that it provides a means of living just for the investor and his/her family.  The marginality requirement also addresses the viability of the business and the examiners are trying to answer the question of whether or not the business makes sense and whether it will survive in the long run.

Assessing the marginality requirement usually has to be based on forward looking information as often when an investor applies for an E-2 visa the applicant is not in the United States and the business often has not yet been started. As such, United States Citizenship & Immigration Services (USCIS) or the Consulate is trying to make a determination of whether or not the evidence you have provided suggests that the business is going to benefit the U.S. economy, create jobs and have long term viability.  While this may sound like it is not an insurmountable task to prove, marginality is often the reason that E-2 visas are not approved.  Here are a few practice pointers to address the marginality requirement.

  • You can demonstrate a business is not marginal by putting together a comprehensive business plan that shows growth of the business over a 5-year period.  A business plan must be comprehensive and include both financial and non-financial information.  For example, you are required to pull together projections for five years as well as describe your product/service, assess your competitors, document your marketing strategy, summarizes your start-up expenses and provide comprehensive projected balance sheet and income statement information for 5 years.  To find out more about how to make an effective business plan click here.
  • You can also address the marginality requirement by showing that you plan to hire employees in the future.  This addresses the requirement as it shows the government that your business is going to help the economy and will provide benefit for more than just you and your family.  A detailed description of who you plan to hire, their positions and when you plan to hire them should be included in your business plan.
  • You do not have to hire employees immediately and they can be hired over the years.  That being said, your business plan projections and working capital on-hand should be sufficient to support the assertion that you plan to hire people in the future
  • If you are buying a business, the marginality requirement can also be addressed by looking at the past performance of the business and this is particularly the case if the business has supported employees in the past.
  • A comprehensive cover letter that addresses how the applicant meets each of the elements of an E-2 visa and describes exactly how the applicant will address the marginality requirement is essential. An E-2 visa is a document intensive visa and the adjudicator is not going to sift through hundreds of pages of documents to find out if you qualify for the visa. This is one of the areas where a qualified immigration attorney is essential.
  • Your business plan is an essential document in an E-2 application and the most significant document to address the marginality requirement.  As such, if you are not familiar with business plans, you should have it prepared by a professional.  USCIS has very stringent and specific expectations regarding what a business plan should contain and your application will likely be rejected if your plan is not comprehensive.

If you are considering an E-2 Visa, contact Scott Legal, P.C..  For more information on this and other immigration Visas click here.  You can also call us at 212-223-2964 or email us at iscott@legalservicesincorporated.com.

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Also, click here for your free White Paper that summarizes the top 10 Immigration Questions and Answers.

6 Comments

  1. YASH SAINI February 29, 2016 3:21 am

    Hi! My cousin born on Feb’1987 went to US on F1 visa in d year 2004 under 17 years. Competed his B.Tech instead of opting for OPT started his own business & having LLC now. He is having Social Security card, driving licence, paying all taxes but his passport & Visa expired in 2009-2011. His business has picked up & employing 4-5 persons on temporary bases. But now his business requirement is to employ at least 3full time professionals. His quarterly tax payable is around 10k & paying also.
    Pl let me know how can u help us to get him permanent status/GC & which category he fits in most. Time & money required.

    Looking forward to ur mail to proceed further in our mutual business interest.

    Reply
  2. Samyuktha July 26, 2016 8:21 am

    Hi,

    I m working as a Software Engineer – SAP Basis Consultant in Hyderabad, India. I have completed MBA. And my husband is an Entrepreneur. His business deals with Kirloskar Generators.

    We want to move to US me with H1B visa, which is in process. and I want to know on what visa my husband and my 3 yr old daughter can come with me. stay there and start a restaurant of our own.
    I know he has very little knowledge on Restaurant management. but we have enough funds to start a business and carry on from there.

    Please let us know, how can we proceed.

    Thanks
    Samyuktha

    Reply
    • IanScott July 27, 2016 10:01 pm

      Thank you for contacting us. At your convenience, please set up a one hour consultation and we would be happy to go over visa options.

      Kind regards,

      Reply
  3. Ankur August 1, 2016 5:11 am

    Hi, I am a citizen of India and have my own business in India, My age is 31 and now i wish to settle in USA and would like to start with some Business however i do not have enough money required as per EB 5 visa.
    Can you please guide me what can be done in my case ?

    Reply
    • IanScott August 2, 2016 1:03 am

      Thank you very much for contacting us and we welcome the opportunity to help you with your legal needs.

      At your earliest convenience, we would be happy to offer you a consultation with one of our lawyers. If after the consultation you decide to hire us to work on your matter and your billing is greater than $2,500, our $250 one hour consultation fee will be waived and the amount will be applied towards your future bill. (As such, the consultation would be free).

      While some legal questions appear straight forward, most do not have a yes or no answer and a proper answer requires a review of the facts and circumstances as well as an application of legal knowledge. Moreover, almost all questions require follow up and additional analysis that is best done during a consultation.

      We look forward to working with you and please contact us if you would like to set up a consultation. For your ease of reference, I have included information below to set up a consultation.

      Please find attached our credit card link to make your $250 consultation payment for a one hour consultation. If you end up hiring the firm and your bill is greater than $2,500, we will apply this consultation fee to your final bill. Once we receive the payment, we can schedule and confirm your appointment. Please reach out if you have any questions.

      https://secure.lawpay.com/pages/scottlegalservices/operating

      Reply

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