With Donald Trump’s anticipated return as U.S. president, expect changes in immigration policies and attitudes, which could potentially impact the E-2 visa.
Drawing on our hands-on experience with the E-2 visa during the first Trump administration (2017–2021), we hope our insights will be helpful to prospective E-2 investors, attorneys, consultants, franchisors, and the E-2 visa community.
The Trump Effect
It’s important to note that during Trump’s first presidency (2017-2021), there were notable actions that were favorable for E-2 investors. Two countries (Israel and New Zealand) were added to the E-2 Treaty Country list, granting their nationals access to the E-2 visa.
- Israel’s inclusion, was initiated during President Obama’s administration in 2012, however it faced a nearly 7-year delay before it was finalized under President Trump.
- New Zealand’s inclusion was completed much faster, with a waiting period of just 10 months from initiation to implementation
On the other-hand, President Trump’s “Buy American, Hire American” (BAHA) created a ripple effect that influenced how U.S. immigration authorities examined and adjudicated E-2 visa applications.
Trump’s approach to immigration brought a noticeable shift in attitude among immigration officials, leading to stricter evaluations of E-2 visa applications. Businesses with investments under $100,000 generally faced heightened scrutiny and skepticism.
Key Changes Observed from the First Trump Presidency
- Greater Focus on Marginality
Immigration authorities began enforcing the E-2 marginality rule more heavily. Marginality, as defined under immigration law, refers to a business’s inability to generate sufficient income to support the investor and their family or to make a meaningful contribution to the U.S. economy.
- Service-based Businesses at Risk
E-2 applications that were previously approved with investments around $50,000 or below began facing greater scrutiny and higher risk of visa denial. Visa officers increasingly expected evidence of larger investments, along with more concrete proof of profitability and contributions to the U.S. economy.
Evolving Under Trump’s First Presidency
Although the stricter attitudes of recent years may have slightly eased, they have not returned to the more lenient approach seen before Trump’s first presidency. Overall, the stringent environment largely persists.
In response, our firm has focused our strategies on educating clients about the differences between a weak and strong E-2 application, so they can make an informed decision. This has promoted our clients to aim for higher standards to achieve E-2 success, even in a stricter political environment.
Strategies to Prepare for a Second Trump Presidency
With Trump’s anticipated return to the presidency on January 20, 2025, we may see a renewed tightening of visa issuances and stricter enforcement or interpretations of E-2 visa requirements.
Thus, we recommend the following approaches to align with anticipated policy or attitude tightening on E-2 visa eligibility:
1. Selecting the Right Business
Businesses that align closely with U.S. interests can more easily demonstrate their potential benefits to the country. Selecting a business that clearly and directly highlights these advantages is an effective way to strengthen your E-2 application, making it simpler to showcase its value to the U.S. economy and society.
Some business industries to consider that may weigh favorably towards national priorities:
- Healthcare and Senior Care
- Education and Child Development
- Technology Sector
- Infrastructure and Construction
- Business established in rural or high-unemployment areas
That said, investors still have the flexibility to choose nearly any type of business. It doesn’t necessarily need to be directly tied to national interests, as long as it can demonstrate a meaningful contribution to the U.S. economy. For example, creating jobs for American workers or providing valuable goods and services to local communities are good indicators of economic benefit that can strengthen an E-2 application.
2. Emphasize Contributions to U.S. Interests and Economic Benefits
E-2 applications should clearly articulate and express how the business brings economic and/or national benefits the United States in the business plan and support letter.
3. Avoiding Marginality Concerns
To minimize the risk of visa denial due to marginality, E-2 applicants should go beyond basic business set-ups in order to show a strong commitment.
We’ve been educating our clients on this for years. However, for E-2 investors not working with our firm, they should be aware:
- Job Creation: Provide clear evidence of hiring U.S. workers or strong evidence of credible hiring plans.
- Substantial Investments: Go beyond the bare minimum spending, especially for start-up service-based businesses. Visa officers are more likely to approve E-2 applications that reflect a strong financial commitment to the U.S. business. While some businesses, such as consulting firms, may only require $30,000 or less to start, this level of investment is often seen as weak and lacks the necessary commitment to inspire confidence. Though some E-2 applicants with these small investments have been approved in the past, under a Trump presidency, we anticipate stricter scrutiny and a higher likelihood of denials for insufficient investment spending. To strengthen your case, aim for investments closer to or exceeding $100,000, especially for service-based businesses.
- Proof of Concept: While business plans are essential, real-world evidence strengthens E-2 applications. Already hiring employees, securing contracts, or generating profits before the application can serve as tangible proof of concept.
4. Avoid Foreign Labor Dependence
Avoid hiring outsourced labor as much as possible. However, if the nature of a business requires the reliance on foreign (non-American) workers, then the E-2 investor must have strong justifications for their staffing decisions.
- Prioritize hiring American employees wherever possible.
- If outsourcing labor is unavoidable, clearly explain why it is critical to the business’s operations and demonstrate what other job roles will be added specific for American workers.
5. Limit Non-U.S. Spending
E-2 investment funds should be spent primarily within the United States. If capital must be used to pay foreign vendors or suppliers abroad, then the E-2 applicant should:
- Clearly show compelling justification as to why expenditures outside the U.S. are necessary. In most acceptable cases, it should be due to the nature of the business model, such as an import business of bringing foreign goods to the U.S.
6. Tailor Support Letters and Business Plans to President Trump's Priorities
Support letters and business plans should reflect a deep understanding of Trump’s policies and priorities:
- Articulating the business’s alignment with U.S. economic, societal, and national interests.
- Demonstrate strong and credible job creations
- The business cannot be marginal, meaning too small to make meaningful economic contributions
- Avoid foreign labor dependence, unless it is an absolute necessity due to the nature of the business model. In this case, convey a compelling justification.
- Avoid spending investment capital outside of the U.S., unless it is an absolute necessity and inherent to the nature of the business. In this case, convey a compelling justification.
Moving Forward
Our law firm has consistently adapted and thrived, even in stricter visa environments and shifting political landscapes.
For our current clients, rest assured that our strategies have always been designed to satisfy a stringent environment and strict visa officers. However, if you feel concerned about your investment progress, please contact us.
Our firm is ready to guide E-2 investors with our strategies that have helped more than 665 clients so far successfully obtain their E-2 visas. If you’re planning to apply for an E-2 visa or need guidance, contact us today.
Please Note: This blog is intended solely for informational purposes and should not be regarded as legal advice. As always, it is advisable to consult with an experienced immigration attorney for personalized guidance based on your specific circumstances.
