What is the E2 Visa Marginality Requirement?
E2 Visa Strategy
Among the many issues that foreign investors have to consider when evaluating an E2 visa strategy is that the investment cannot be marginal.
In a nutshell, the business enterprise must have the present or future capacity to generate more than a minimum income to provide for the investor’s family. The E2 business must be capable of more income than solely providing for the immediate family; E2 visa holders will also have to create jobs for US employees within the five-year period after securing an E2 visa.
Here are 4 tips to consider about the marginality requirement:
- The U.S. government wants to see that the foreign investor has planned for success. Accordingly, the investor should provide a detailed 5-year business plan – forecasting capacity to generate sufficient revenue to exceed minimal living standards.
- The foreign investor should provide evidence to show that the enterprise will create job opportunities in the U.S. By expanding jobs in the U.S. economy, the investor can increase his or her probabilities of obtaining the E2 visa.
- Another tip for an E2 applicant is to provide evidence that the enterprise will generate significant income at a level that is above a standard living income for the total number of family members in the investor’s household.
- Thus, if the enterprise has the capacity to generate significant income then the investor should provide such evidence. For example, if the enterprise has already generated high sales volume, then the investor should provide bank statements and Profit & Loss statements to support the high income.
The U.S. government will allow some time to generate the necessary income. If the enterprise will take some time to generate substantial income, then it is prudent for the investor to show other sources of income to support the investor and his or her family.
General Qualifications of a E-2 Treaty Investor
To qualify for E-2 classification, the treaty investor must:
- Be a national of a country with which the United States maintains a treaty of commerce and navigation.
- Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States.
- Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
An investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity. See 8 CFR 214.2(e)(12) for more information.
A substantial amount of capital is:
- Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
- Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
- Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.
A bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.
The investment enterprise may not be marginal. A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.
Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income. In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins.
E2 Visa or Immigration Questions? Please Contact VERDIN
Isaul VERDIN has extensive experience advising multinational companies and entrepreneurs on complex US immigration matters involving investments.
Investment visa business opportunities include real estate, aviation, technology, manufacturing, retail, luxury goods, and professional services. Additionally, he litigates deportation defense matters throughout the US.
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