For entrepreneurs applying for the E-2 investor visa, meeting the visa’s various requirements can be complex. One of the most important—yet often misunderstood—is the “marginality requirement.” This condition plays a critical role in determining whether your E-2 visa will be approved. Simply put, U.S. immigration authorities want to ensure your business will do more than support just you and your family—it should create jobs for U.S. workers.
This article breaks down the marginality requirement, explains why it matters, and provides practical advice on how to meet it.
What Is the Marginality Requirement?
Under U.S. immigration law, an E-2 business must not be “marginal.” In plain terms, this means that the business should generate enough income—either now or within five years—to support more than just the E-2 investor and their immediate family. A key way to demonstrate this is through job creation for U.S. workers.
While other E-2 requirements focus on the investor’s nationality, investment amount, or business operations, the marginality test is centered on employment. In fact, demonstrating strong employment potential can often outweigh weaknesses in other areas of an application.
When Must the Business Hire Workers?
The good news is that your business doesn’t need to employ workers before you apply for an E-2 visa. However, you do need to show a credible plan to hire workers—typically at least three to four full-time equivalent U.S. employees—within five years of starting operations. This hiring should ideally begin earlier in the five-year window and must occur before your visa is up for renewal.
Who Qualifies as a U.S. Worker?
There’s a hierarchy in terms of which types of workers are most persuasive:
- Best option: Full-time W-2 employees (35+ hours/week)
- Acceptable: Part-time W-2 employees (may require multiple to equal one full-time role)
- Less compelling but permissible: Independent contractors (1099 workers)
Family members of the E-2 investor, including spouses and children, do not count toward the marginality requirement, even if they are employed by the business.
What If You Haven’t Hired Anyone Yet?
For startups that haven’t hired yet, a strong business plan is crucial. Your plan should:
- Include five-year financial projections
- Detail projected job creation timelines
- Outline how future revenue will make hiring possible
Supporting documents such as letters from the local Chamber of Commerce or evidence of available working capital can also help bolster your application.
What Counts as Evidence of Job Creation?
For existing businesses:
- Payroll records
- Tax returns
- Compensation reports
For startups:
- Detailed business plan
- Letters from economic development organizations
- Proof of available capital to support immediate hires
Special considerations:
- If you’re purchasing a U.S. business, ensure it already employs at least three people.
- If you’ve operated a similar business abroad without hiring staff, be prepared to explain how the U.S. operation will differ.
The marginality requirement is one of the most important—and scrutinized—elements of the E-2 visa process. Demonstrating a commitment to job creation for U.S. workers can strengthen your application significantly, even if other parts are weaker.
On the flip side, failure to show that your business is—or will be—more than marginal can result in a denial.
If you’re unsure about how to structure your application or present your job creation strategy, consulting an experienced immigration attorney can make all the difference.
