The marginality requirement of the E2 visa can be summarized in this way: the E2 investment must be capable of significantly more than solely providing for your family. This means that you will have to create jobs for US employees within the five-year period after securing your E2 visa.
What the Law Says
“A marginal enterprise is an enterprise 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. 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 alien commences normal business activity of the enterprise.”
Subjectivity and Speculation
Marginality requires setting forth precise projections regarding the number of employees your business will be hiring within the next five years. For a new business, this determination will be somewhat speculative. Immediately hiring some U.S. employees is a step in the right direction and bolsters to the credibility of your 5-year plan.
To show that the investment will not be marginal, it is important to demonstrate that the business will be conducted at such a scale that additional employees will be a necessity.
A relevant factor to the marginality inquiry is the business capacity to make a significant contribution to the U.S. economy. That economic contribution is measured by the projected return on the investment.
To demonstrate that a business is not marginal, a comprehensive business plan is an absolute must. The business plan should include:
(1) Detailed information about the number of employees that will be hired on a year-by-year basis (including a break down per positions and overall annual wage costs); and
(2) Break-even analysis, yearly profit & loss and balance sheet projections.
These should be reviewed by a CPA.
The idea is to provide enough evidence to show that the business will grow over the long run and generate sufficient profits to hire a growing pool of U.S. workers.
Having other sources of income or a substantial sum in saving is also useful because it helps establishing that you will not be relying on the E2 business to provide for you and your family.
Significant amount of U.S. Workers OR Significant Economic Contribution
Sometimes, demonstrating that you will create a great number of jobs for U.S. workers may be enough to fulfill the marginality requirement. Conversely, hiring a large pool of U.S. employees may not be necessary when your business will make a truly significant economic contribution to the US economy. The Foreign Affairs Manual (FAM) makes clear that a potent evidence on one of the two factors may suffice.
Because marginality is subjective, it is not easy to understand what it takes to fulfill this requirement. This is one important area where an E2 visa attorney can help you maximize your odds of success.