Marginality is one of the reasons for E-2 denials. This blog post will explain what does it mean if the officer thinks that your business is marginal, and what you can do to address the officer’s concerns in your re-application.
For more details on when you can re-apply for an E-2 Visa see this post.
What is Marginality?
Under 9 FAM 402.9-6(E), the E-2 business must be more than marginal. “A marginal enterprise is an enterprise that does not have the present or future capacity to generate enough income to provide more than a minimal living for the treaty investor and their family. An enterprise that does not have the capacity to generate such income but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future capacity should generally be realizable within five years from the date the applicant commences normal business activity of the enterprise.”
The concern here is that the E-2 business will only earn enough money to support you and your family (and not enough money to support other employees). To show that the business is not going to be marginal, you will want to show that the company’s revenues are going to be high enough that you will be able to hire employees for the business in the next 5 years.
What should I do to address the officer’s concerns that my business is marginal?
- Hire employees after the denial: If your petition was denied on marginality, you should hire one or two employees before you apply again. The more employees you are able to hire, the better it will be for your re-application. This will show the officer that the business has already a present capacity to earn enough money to hire US employees. As evidence that you have employees, you would submit employment agreements, payroll or paystubs, or W2s.
- Start taking revenue from clients: The company should start taking revenue from clients – this will show the officer that there is an interest in company’s products/services from clients and it will also show that the company is already able and will keep earning revenue in the future. Again, the higher the revenue, the better for the re-application. You would submit the company’s Profit and Loss statement and Balance sheet to show how the Company has been doing financially since the denial.
- Submit contracts with clients/Letters of intent to show that clients are interested in your products/services and the company is and will keep earning revenue.
- Submit a Business Plan with your application. Business Plan is an extremely important part of an E2 application, especially for new companies. If you have not submitted a Business Plan with your initial application, you should definitely submit one with your re-application. If you submitted a Business Plan with your initial application, you should revise the Business Plan/Hire a professional that will help you with drafting a Business Plan.
If your E2 petition was denied on marginality, schedule a consultation with us, so an experienced immigration attorney to assist you with the re-application.
