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Structuring an LLC or corporation for an E-2 visa approval requires careful planning that aligns U.S. corporate law, tax strategy, and the E-2 visa requirements.

Why entity structure matters for an E-2 investor

The way an investor organizes ownership and control of the U.S. enterprise affects eligibility for an E-2 investor visa. Immigration officers evaluate who owns the business, how funds are invested and documented, whether the enterprise is active and viable, and whether it will do more than provide a minimal living for the investor and family.

Choosing the right entity affects tax treatment, ease of proving control, and the clarity of documentary evidence. Common options are a limited liability company (LLC) or a corporation (often a C corporation for nonresident investors). Each has trade-offs when used to support an investment visa USA application.

Key E-2 legal and documentary requirements that drive entity decisions

When planning structure, the investor should keep the following immigration standards in mind:

• Treaty nationality: The investor must be a national of a country with a qualifying treaty with the United States. A list of treaty countries is maintained by the U.S. Department of State at travel.state.gov.
• Ownership and control: The E-2 enterprise typically must be majority-owned by nationals of the treaty country or otherwise controlled by them. Clear ownership documentation is essential. USCIS provides an overview at uscis.gov – E-2 Treaty Investors.
• Substantial and at-risk investment: Funds must be committed and at risk, sufficient to support a viable enterprise. The investor must show how funds were transferred and used for business purposes.
• Non-marginality: The business should have economic impact beyond supporting the investor’s household—usually demonstrated by creating U.S. jobs or showing significant revenue and expenses.
• Active enterprise: Passive investments in real estate or securities generally do not qualify unless they are part of an active commercial enterprise.

Choosing between an LLC and a corporation

LLC (Limited Liability Company) is a favored choice for many E-2 investors because it is flexible, allows clear member ownership percentages, and is treated as a pass-through entity for U.S. tax purposes (unless the LLC elects corporate taxation). An LLC’s operating agreement can explicitly describe roles, voting rights, and control mechanisms—useful to document managerial control for the E-2 application.

Corporation (C corporation) is often preferred by investors planning faster scale, outside investors, or eventual sale/IPO. A C corporation can issue shares, create a board of directors, and has more familiar corporate governance documents such as bylaws, stock ledgers, and board minutes that immigration officers expect to see. Nonresident treaty nationals must avoid using an S corporation because IRS rules require S corp shareholders to be U.S. persons (IRS - S Corporation rules).

Ownership and nationality: practical approaches

Direct ownership by the treaty-national founder is the clearest path: the investor personally owns membership interests (LLC) or shares (corporation) and can produce passports and ownership documents. If a single investor owns 100% of the entity, proving nationality and control is straightforward.

Multiple investors are commonly used, but the structure should ensure that treaty nationals collectively possess the controlling interest. While majority ownership (over 50%) by treaty nationals is the most defensible arrangement, immigration officers will also consider evidence of operational control—board composition, management agreements, and voting rights. To avoid ambiguity, many investors set up entities where treaty nationals hold majority economic and voting control.

Holding companies can be used, but the chain of ownership must be transparent. If a foreign holding company owns the U.S. operating company, the holding company itself must be owned by treaty nationals, and the investor must show documentation that links the individual’s nationality and ownership through the holding structure.

Corporate governance and documentation to prove control

Immigration officers expect a clear corporate record. The following documents should be prepared and organized:

• Articles of organization/incorporation and state filings confirming formation and good standing.
• Operating agreement or corporate bylaws that specify management structure, members/shareholders and their ownership percentages, voting rights, and decision-making processes.
• Stock certificates or membership certificates, a shareholder/membership ledger, and stock purchase agreements that show how shares or interests were acquired.
• Board minutes and resolutions showing decisions about capital contributions, loans, hiring, and major contracts.
• Employment contracts and organizational charts documenting who runs day-to-day operations and the investor’s managerial role.

These records create a coherent story that the investor both legally and practically controls the enterprise.

Proving funds, capitalization, and at-risk investment

One of the most scrutinized areas is how the business is funded. To satisfy the at-risk and substantial tests, the investor should provide:

• Traceable source of funds: bank statements, sale agreements, tax returns, or corporate records showing where the capital originated.
• Evidence of transfer to the U.S. enterprise: wire transfer receipts, escrow statements, canceled checks, and business bank account records.
• Evidence funds are at risk: vendor invoices, equipment purchases, lease payments, payroll, and other expenditures that demonstrate money committed to business operations.
• Loan documentation: if the investment includes loans, show that loans are commercial and the investor does not retain a guaranteed right to repayment that removes the funds from risk. Personal loans to the business can be acceptable if the funds remain exposed to business loss.

Thorough financial records make the immigration reviewer’s job easier and reduce the likelihood of Request for Evidence (RFE).

Addressing the non-marginality requirement with company structure

To meet the non-marginal requirement, the enterprise should be structured and documented to show it will generate economic impact beyond the investor’s family. Structuring options include:

• Hire U.S. employees: Adopt payroll early, prepare job descriptions, and maintain labor records. A formal org chart with projected hires and timelines strengthens the case.
• Show realistic financial projections: Detailed budgets for revenue, expenses, and hiring that correspond to capital invested and industry norms.
• Choose an operationally active business model: Service companies, retail operations, manufacturing, and technology startups with clear revenue-generating plans are stronger than passive real estate investments.

For a startup visa USA

Employee E-2 visas and managerial control

The E-2 category allows key employees of the E-2 enterprise to qualify for visas if they have executive, managerial, or highly specialized skills and hold the nationality requirement where applicable. Structuring the company with defined managerial positions and clear reporting lines helps when applying for E-2 employee visas for essential staff.

Well-drafted employment agreements, position descriptions, and payroll records demonstrate the need for these roles. For the investor seeking to be on-site and in charge, documents should show the investor’s title, duties, and authority to make strategic and operational decisions.

Common pitfalls to avoid

Several recurring errors can derail an E-2 application:

• Passive investments: Simply buying real estate or stock without an active commercial enterprise usually fails E-2 scrutiny.
• Unclear ownership chains: Complex ownership through multiple foreign entities without clear treaty-national majority ownership invites RFEs.
• S corporation ownership: Non-U.S. persons cannot be S-corp shareholders, so using an S corp will block nonresident treaty nationals.
• Insufficient documentation of at-risk funds: Deposits held in escrow, refundable investments, or funds that remain with foreign banks without clear commitment to U.S. operations are a red flag.
• Overreliance on control through voting-only shares: A structure that gives voting control but little economic interest can be questioned; immigration officers look for economic and managerial substance.

Practical checklist for a structurally sound E-2 application

When preparing an E-2 filing, investors should assemble the following:

• Corporate formation documents and state good standing certificates.
• Operating agreement or bylaws with explicit roles and ownership percentages.
• Stock/membership certificates, shareholder/membership ledger, and purchase agreements.
• Business plan with three-to-five-year financial projections, hiring timeline, and market analysis.
• Full trace of funds showing source, movement, and use in the U.S. business.
• Lease agreements, vendor contracts, purchase orders, equipment invoices that show business activity.
• Payroll records and job descriptions for current and planned employees.
• Board minutes and resolutions documenting major decisions and capital commitments.
• Evidence of treaty nationality for relevant owners (passports, national ID).

Working with professionals and next steps

Structuring for E-2 is both legal and strategic. Coordination among an immigration attorney, corporate attorney, and accountant is critical. An immigration attorney will craft the narrative and evidence to meet E-2 visa USA standards, while a corporate attorney ensures entity documents reflect the intended management and ownership positions. An accountant helps design capitalization and payroll to support the non-marginality argument.

Practical next steps include selecting the entity type that aligns with long-term business plans, drafting governance documents that demonstrate managerial control, opening U.S. business bank accounts, and beginning operations with traceable expenditures. Investors often begin by preparing a strong business plan and then timing capital contributions and hires so that the E-2 filing shows real, substantive progress.

Structuring the company correctly improves the odds of a smooth E-2 review and provides a stable platform for growth. For tailored guidance on company formation, ownership strategies, and documentary evidence that immigration officers expect, consulting experienced counsel early is highly recommended.

What aspect of your business or ownership structure is most concerning for your E-2 plan? Asking targeted questions now can prevent costly delays later.

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.

The 90-day policy is a critical but informal guideline that can shape an E-2 investor's path to U.S. admission or change of status—understanding it can prevent costly denials and misrepresentation findings.

What is the 90-day policy?

The 90-day policy is an informal evidentiary presumption used by consular officers, Customs and Border Protection (CBP), and adjudicators to infer whether a nonimmigrant had a preconceived intent to change status or pursue a different visa immediately after entry to the United States. It is not a statute; rather, it is an administrative practice that helps officials decide when a short timeframe between entry and a change in circumstances suggests the traveler misrepresented their intent at admission.

Practically, the rule is applied like this in many adjudications: actions taken within the first 30 days after entry are highly likely to be viewed as part of the original intent; actions taken between 31 and 90 days raise a rebuttable presumption that the traveler misrepresented intent at entry; and actions after 90 days are less likely to produce a presumption of misrepresentation. This creates a simple timeline that adjudicators use, but it is important to remember that the guideline is fact-specific and not absolute.

Where the 90-day policy comes from and how it is used

The 90-day timing guideline evolved from Department of State and immigration adjudication practice rather than from a single statutory source. It is a pragmatic tool that helps officials assess preconceived intent—whether a person entered the United States under false pretenses, such as entering on a tourist visa with the plan to instantly start working or change status.

Adjudicators use this guideline alongside statutory provisions, most notably the immigration inadmissibility ground for misrepresentation under INA 212(a)(6)(C)(i). A finding of misrepresentation can carry severe consequences, including visa refusal or ineligibility for future admission, so the 90-day guideline can have real-world consequences.

Official guidance on assessing nonimmigrant intent and misrepresentation is available from government sources such as the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State, but the 90-day rule itself typically appears in practice notes, legal memoranda, and adjudicator training rather than in a single regulation.

How the 90-day policy specifically affects E-2 visa applicants

The E-2 investor visa requires that the applicant be a citizen of a qualifying treaty country and that he or she intends to enter the U.S. solely to develop and direct operations of an enterprise in which a substantial investment has been made. Crucially, the E-2 visa is a nonimmigrant classification that requires evidence of both the investment and the applicant’s nonimmigrant intent (or at least the absence of misrepresentation regarding that intent).

For someone who recently entered the U.S. on a tourist visa (B-1/B-2) or under the Visa Waiver Program (ESTA), then quickly seeks E-2 status—either by applying at a U.S. consulate abroad after a short trip, or by filing a change of status with USCIS—the 90-day policy can be invoked to infer that the applicant intended to pursue E-2 status all along. If a consular officer or USCIS adjudicator applies this presumption and is not convinced by the applicant’s evidence, the result can be a visa denial, a 221(g) administrative refusal, or even a finding of misrepresentation under INA 212(a)(6)(C)(i).

Common scenarios where applicants run into trouble include:

• Entering the U.S. on a B-2 tourist visa to finalize an investment and shortly thereafter applying for E-2 status.
• Applying for an E-2 visa at a consulate less than 90 days after returning from a U.S. visit during which substantial business activities occurred.
• Filing a change of status with USCIS to E-2 within a short period after admission as a visitor and simultaneously beginning business operations that are inconsistent with visitor intent.

Why adjudicators are concerned

Adjudicators worry about preconceived intent because the U.S. nonimmigrant visa system relies on honest disclosure of the traveler’s true purpose. A visitor visa is issued on the basis that the traveler will leave once the visit is over. If an individual plans all along to engage in activities inconsistent with that visa classification—such as working or running a business—then the integrity of visa adjudication is undermined.

Where the 90-day policy is triggered, adjudicators will look for evidence that contradicts the presumption of misrepresentation. If the evidence is inadequate or inconsistent, officials may determine that the applicant misrepresented his or her intentions at the time of entry.

How to rebut the 90-day presumption

An applicant who faces a 90-day presumption can successfully rebut it with credible, contemporaneous documentation and a plausible timeline showing that the decision to invest and pursue E-2 status occurred after entry or was otherwise not part of the original intent. Useful evidence can include:

• Bank records and wire transfers showing when funds were moved from personal accounts to business accounts or escrow after entry.
• Signed lease agreements or property acquisition documents dated after entry that show when the commercial premises were secured.
• Corporate formation documents and meeting minutes dated after entry that demonstrate the sequence of events.
• Paid invoices, contractor agreements, or hiring records showing that employees or contractors were retained after arrival.
• Expert affidavits from accountants, attorneys, or business consultants who can attest to the timing and nature of the investment decisions.
• Consistent, credible personal statements that honestly explain why decisions were made when they were and why the applicant did not intend to misrepresent their purpose at entry.

Documentation should be contemporaneous where possible—documents created after the fact can be less persuasive unless they are corroborated by independent records. The key is to show that the investment events and intent to pursue E-2 classification arose after entry or that circumstances materially changed following admission.

Practical strategies for E-2 applicants

Because the 90-day policy is an adjudicative practice, smart planning can reduce risk. The following strategies are commonly recommended by experienced E-2 counsel:

• Avoid using a B-2 tourist visa to conduct business. If the primary purpose is an investment or to direct a business, it is safer to enter the U.S. as a B-1 business visitor or ESTA Waiver Business (WB) rather than B-2 pleasure visitor or ESTA Waiver Tourist (WT).
• Consider timing. Waiting at least 90 days after entry before initiating actions that change the nature of the trip or filing for consular processing may reduce the likelihood of a presumption. However, waiting does not guarantee success—context and documentary support remain crucial.
• Prepare a clear chronology. A well-documented timeline showing when funds were committed, when contracts were signed, and when business operations actually began helps rebut allegations of preconceived intent.
• Keep business activity consistent with the visa. B-2 visitors must avoid conducting business that is inconsistent with the terms of a tourist visa (e.g., active management or employment) while in the U.S.
• Work with counsel early. An experienced E-2 attorney can advise on whether to pursue consular processing or a change of status, how to document timelines, and when to file to minimize risk.

Consular processing vs. change of status: how the rule plays out

Applicants can either apply for an E-2 visa at a U.S. consulate abroad (consular processing) or, if already in the U.S., file Form I-129 (for E classification) for a change of status with USCIS. Each route interacts with the 90-day guideline differently:

• Consular processing: A consular officer will review the applicant’s overall travel history and recent U.S. admissions. If the applicant recently visited the U.S. as a B-2 pleasure tourist and then applied for E-2 soon after, the officer may apply the 90-day presumption. Consular officers have broad discretionary authority and can request extensive documentation or issue a refusal under INA 214(b) or a finding of misrepresentation under INA 212(a)(6)(C)(i).
• Change of status with USCIS: USCIS adjudicators also consider whether the applicant misrepresented intent at entry. Filing a change of status shortly after entering as a visitor increases the risk of an adverse finding. In some cases, USCIS may approve a change of status but denial remains possible if documentation is insufficient.

Real-world examples

Example 1: An investor from a treaty country flies to the U.S. on a B-2 tourist visa, negotiates a lease and hires contractors within two weeks, and then returns home to apply for an E-2 visa. The consular officer notes the rapid business activity during the visit and may conclude the investor had preconceived intent to seek E-2 status, which could lead to additional scrutiny or a denial unless the applicant provides convincing evidence showing the investment decision occurred after arrival.

Example 2: An applicant comes to the U.S., conducts exploratory meetings, and leaves. Three months later, after obtaining definitive contracts and transferring funds, the applicant applies for an E-2 visa. Because more than 90 days have passed and the documentation clearly shows the investment was formalized after the visit, the consular officer may be less likely to infer misrepresentation.

Common mistakes to avoid

Several missteps commonly lead to trouble with the 90-day rule:

• Engaging in full-time managerial work or employment while admitted as a visitor.
• Filing for a change of status or applying for a visa immediately after a U.S. visit without clear documentation explaining the sequence of events.
• Relying on after-the-fact, self-authored documents without independent corroboration.
• Failing to consult counsel when time-sensitive business decisions coincide with U.S. visits.

Questions an applicant should prepare to answer

When the 90-day presumption is raised, adjudicators typically want clear, consistent answers to these questions:

• When exactly were funds transferred and to whom?
• When were contracts signed, and when did any business activity actually begin?
• Why was a visit to the U.S. necessary at the time it occurred?
• What changed between the visit and the decision to pursue E-2 status?

Where to find authoritative information

Applicants can learn more from primary government resources about visa policy, nonimmigrant intent, and inadmissibility grounds:

• U.S. Citizenship and Immigration Services (USCIS) provides general information on nonimmigrant classifications and filing procedures.
• U.S. Department of State — Bureau of Consular Affairs gives guidance on consular processing, visa refusals (INA 214(b)), and the visa application process.
• INA 212 (Cornell Legal Information Institute) contains the statutory ground for misrepresentation (INA 212(a)(6)(C)(i)).

Understanding the 90-day guideline and preparing a clear, well-documented case can dramatically improve an E-2 applicant’s chances of success. Thoughtful timing, consistent records, and early legal advice help confront the presumption and present a credible narrative of the investment decision.

Skilled counsel can review specific facts, suggest the best filing strategy, and help put together the proof needed to make the strongest possible E-2 presentation.

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.

Choosing between the E-2 investor visa and the EB-5 immigrant investor program is one of the most consequential decisions an entrepreneur or investor can make when planning U.S. immigration through investment. This guide lays out the practical differences, trade-offs, and decision points so an investor can see which path aligns with their goals.

Quick comparison: E-2 vs EB-5 at a glance

The two programs are aimed at different outcomes. The E-2 visa is a nonimmigrant visa for nationals of certain treaty countries who make a “substantial” investment in and actively manage a U.S. business. The EB-5 is an immigrant visa category that offers conditional lawful permanent residence (a green card) to qualifying investors who make a qualifying investment and meet job-creation requirements.

Key high-level contrasts:

• Immigration outcome: E-2 — temporary, renewable nonimmigrant status; EB-5 — pathway to conditional and then permanent residency.
• Nationality requirement: E-2 — investor must be a national of a treaty country; EB-5 — open to nationals of any country.
• Investment amount: E-2 — no statutory minimum, judged as “substantial”; EB-5 — a defined minimum qualifying investment (check current USCIS guidance for exact figures).
• Job creation: E-2 — must not be a marginal enterprise (can create jobs but no strict quota); EB-5 — must create at least 10 full-time U.S. jobs per investor.

Eligibility and nationality

E-2 eligibility depends critically on nationality: the investor must be a citizen of a country that maintains a qualifying treaty of commerce and navigation with the United States. Dependents (spouse and unmarried children under 21) may accompany the investor, and the spouse may frequently apply for work authorization. A current list of treaty countries and visa policies can be found on the U.S. Department of State website.

EB-5 eligibility is nationality-neutral: any foreign national who can meet the investment and job creation requirements may apply. That makes EB-5 accessible to investors from countries that are not eligible for E-2.

Practical implication: an investor from a non-treaty country must consider EB-5 (or other immigrant/nonimmigrant options) if the E-2 is unavailable.

Investment amount and source of funds

E-2 investment has no statutory minimum. USCIS and consular officers consider whether the investment is substantial in proportion to the cost of establishing a viable business in the chosen industry. In practice, many E-2 cases use investments ranging from tens of thousands to several hundred thousand dollars, depending on the business type. The investment must be at risk, irrevocably committed, and sufficient to ensure the enterprise’s successful operation.

EB-5 investment requires a specific minimum qualifying investment amount. Because regulatory levels have changed over time, applicants should consult official USCIS guidance for the current thresholds and for rules about investments through regional centers versus direct investments. For EB-5, the investor must also demonstrate the lawful source of all funds invested, with thorough documentation tracing the funds through their history.

Both programs demand credible and well-documented evidence that the funds are lawfully obtained. Common documentation includes tax returns, business sale contracts, loan documents (with due diligence to show lawful source), inheritance records, and audited financial statements.

Business operations and job creation

E-2 business requirements focus on active operation and management. The business must be a real, operating enterprise producing goods or services (not a passive investment). The enterprise should have the capacity to generate more than enough income to provide a living for the investor and family or demonstrate significant economic impact. While job creation strengthens an E-2 case, there’s no fixed target of jobs created.

EB-5 job creation rules are strict: each EB-5 investor must create or preserve at least 10 full-time U.S. jobs for qualifying employees within a specific period. Job counting rules differ depending on whether the investment is a direct EB-5 investment (jobs directly in the new commercial enterprise) or an investment through a regional center (indirect and induced jobs, subject to economic models and regional center approvals). The investor must submit credible job creation evidence in the application process.

Immigration outcomes and timeline

E-2 timeline and status: The E-2 visa is granted for specified periods (often up to five years at some posts, but renewal and extensions are routine). It is a temporary, nonimmigrant status that can be extended indefinitely in many cases as long as the enterprise continues to operate and treaty eligibility persists. Because E-2 is nonimmigrant, it does not automatically lead to a green card; investors sometimes pursue separate immigrant visas or adjust status if eligible through other preferences.

EB-5 timeline and green card path: EB-5 offers a path to conditional lawful permanent residence. After meeting investment and job-creation requirements and obtaining approval, the investor and qualifying family members receive a two-year conditional green card. Ninety days before the two-year mark, the investor files to remove conditions by proving that the investment was sustained and the required jobs were created; successful removal results in permanent residence. Timelines vary and can be significantly affected by visa availability for the investor’s country of chargeability. For up-to-date application procedures and forms, consult USCIS guidance on EB-5.

Practical note: EB-5 processing times and visa availability can vary widely; some applicants—based on country of origin—may face retrogression and long waits, which can influence the decision between E-2 and EB-5.

Family, travel, and work authorization

Both pathways allow family members to accompany the investor, but the benefits differ:

• E-2 dependents: The spouse and unmarried children under 21 may receive derivative E-2 status. Spouses are generally eligible to apply for work authorization in the U.S., while children may attend school but cannot work.
• EB-5 dependents: The spouse and unmarried children under 21 become conditional lawful permanent residents along with the investor, giving them the right to live and work in the U.S. and travel freely as green card holders.

Costs, fees, and practical risks

Both options involve multiple costs beyond the capital investment itself. Government filing fees, attorney fees, business setup costs, escrow/accounting costs, and ongoing operational expenses must be budgeted. EB-5 can involve substantial administrative and compliance costs, especially if using a regional center or complex job-creation documentation.

Risk considerations:

• Business risk: Any business can fail; the investor should understand how that risk affects their status (E-2 status depends on the continued operation of the business; an EB-5 investor must preserve the investment through the conditional period and meet job targets).
• Immigration risk: Changing rules, visa retrogression, and adjudication variability can impact timelines and outcomes. Keeping current with USCIS guidance and the Department of State Visa Bulletin is essential.
• Regulatory and compliance risk: EB-5 has detailed compliance expectations and potential audits; E-2 adjudicators evaluate the nature and viability of the business and the bona fides of the investment.

Which option fits which investor? Practical scenarios

Different investors will find one path more suitable than the other depending on objectives, nationality, risk tolerance, and resources. The following scenario-based guidance helps clarify choice:

Scenario: Entrepreneur with treaty nationality who wants to run a business in the U.S. but does not need a green card right away

This person may prefer the E-2 visa. It allows them to start or buy a business, manage operations actively, and obtain renewable status with relatively quicker processing in many consular posts. They can often bring a spouse who can work and children who can study. If permanent residency becomes the goal later, they can explore EB-5 or family/employment-based options while in E-2 status.

Scenario: Investor who needs a green card now and has substantial capital

If permanent residence is the primary objective and the investor has the necessary capital and can meet job-creation requirements, EB-5 is the more direct route. It provides conditional green cards and eventually permanent residence for the investor and qualifying family members. However, prospective investors must consider possible visa backlogs for certain countries and be prepared for the documentation and compliance requirements.

Scenario: Investor from a non-treaty country who wants to live and work in the U.S.

For that investor, EB-5 (or other immigrant pathways) may be the only viable investment-based option. Alternatives include exploring eligibility under family-sponsored or employment-based immigrant categories.

Scenario: Risk-averse investor who prefers passive investing through a regional center

Investors preferring passive involvement often consider EB-5 through a regional center, where job creation is calculated through economic models and the investor may not have day-to-day management duties. Due diligence on regional center credentials and job projection methodologies is crucial.

Due diligence and documentation: what to prepare

Whether choosing E-2 or EB-5, thorough preparation and documentation are essential. Key steps include:

• Assembling complete source-of-funds documentation that traces the investment funds from origin to U.S. investment accounts.
• Developing a detailed business plan that shows commercial viability (especially important for E-2 petitions and EB-5 direct investments).
• For EB-5, preparing robust job-creation evidence and, if using a regional center, validating the center’s qualifications and job model assumptions.
• Performing legal and financial due diligence on acquisition targets, lease agreements, and compliance obligations.

Engaging experienced immigration counsel, transactional attorneys, and qualified accountants early reduces risk and builds a stronger case for adjudicators or consular officers.

Where to find reliable information and further steps

Authoritative resources include official government pages and reputable industry bodies. Useful links:

• USCIS: EB-5 Immigrant Investor Program
• U.S. Department of State: E-2 Treaty Investor information (see treaty country lists and consular processes)
• U.S. Department of State: Visa Bulletin (for EB-5 visa availability)
• IIUSA (Invest in the USA): industry resource for EB-5 market and regional center information

Making the decision: a practical checklist

When comparing E-2 and EB-5, an investor can use this checklist to guide decision-making:

• Does the investor have citizenship of an E-2 treaty country?
• Is the primary goal a temporary business presence or permanent residence in the U.S.?
• Does the investor have the required capital and willingness to meet EB-5 job creation standards?
• What is the investor’s risk tolerance for business failure or regulatory changes?
• Are there country-specific visa backlogs that could delay EB-5 processing?
• Has the investor assembled trustworthy counsel and advisors for immigration, tax, and corporate planning?

Deciding between E-2 and EB-5 is both a legal and strategic business decision. By assessing nationality, capital, long-term residency goals, and tolerance for business and regulatory risk, an investor can select the route that best aligns with their short- and long-term objectives. Would the investor prefer temporary, renewable flexibility with active business management, or a direct—albeit more regulated—path to permanent residence? Thoughtful planning, comprehensive documentation, and expert advice make the difference in turning that preference into a successful application and business strategy.

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.

The E-2 visa offers an attractive way for investors to live and run a business in the United States — but what does it mean for their family? This article explains what spouses and children can and cannot do on an E-2 visa status and offers practical steps for making the most of the benefits.

Who qualifies as a family member on the E-2 visa?

Under the E-2 nonimmigrant classification, family members who may accompany the principal visa holder are limited to the spouse and unmarried children under age 21. These family members receive derivative E-2 dependent visas (often annotated as E-2 dependent or similar on the visa stamp) and are authorized to reside in the U.S. for the same period as the principal investor.

Dependents must maintain their relationship to the principal to keep their status — for example, children who turn 21 or marry generally lose derivative E-2 status and must seek another visa category or leave the U.S.

Can a spouse work in the United States on an E-2 dependent visa?

Yes. A significant benefit of the E-2 program is that a spouse may lawfully work in the United States incident to status. After the spouse enters the U.S. in E-2 dependent status, they may apply to U.S. Citizenship and Immigration Services (USCIS) for an Employment Authorization Document (EAD) by filing Form I-765. Once USCIS approves the I-765, the spouse receives an EAD card that authorizes employment.

Many spouses use this authorization to work for U.S. employers, start their own business, or work remotely for overseas companies, provided the activity complies with U.S. law and tax rules. Employers generally rely on the EAD or the I-94 Arrival Record showing "E-2S" status as proof of employment authorization when completing Form I-9.

Processing times for an EAD can vary, so it is prudent to check the current USCIS processing times and submit the application promptly after arrival. For official information on the E-2 category, see the USCIS E-2 page and the U.S. Department of State guide to E visas.

Key practical steps for a spouse who wants to work

• After entry, prepare and file Form I-765 with USCIS, including supporting documents such as a copy of the E-2 dependent visa page, passport, marriage certificate, and proof of entry (I-94).
• With the EAD or I-94 showing "E-2S" status, the spouse may apply for a Social Security Number and begin employment.
• If the spouse plans to start a U.S. business, consult an immigration attorney and tax advisor on business structure and compliance.

Can dependent children work or study in the United States?

Children who hold derivative E-2 status may study in the United States without changing to an F-1 student visa. That includes attendance at public or private kindergarten through 12th grade, as well as college or university programs. Many families appreciate that E-2 children do not need a separate student visa to enroll in U.S. schools.

Children, however, are generally not authorized to work in the United States while on derivative E-2 status unless they obtain their own employment authorization (for example, by changing to a visa category that allows work). For minors, this is uncommon; once they reach adulthood (or if they change status to F-1 for higher education), different rules apply.

Enrollment and higher education considerations

For K–12 public schools, local school districts typically require proof of residence, birth certificate, immunization records, and proof of guardianship or parental authority. Families should contact the local school district early to learn enrollment deadlines and specific document requirements.

For higher education, E-2 dependent students may enroll in degree or non-degree programs without changing status to F-1. However, tuition status (in-state vs. out-of-state or international rates) is determined by state and institution policies and often depends on residency and immigration status. E-2 dependents are commonly treated as non-resident or international for tuition purposes, but some states or institutions have pathways to in-state tuition for nonimmigrant residents — families should confirm with the institution’s admissions or registrar’s office.

Can an E-2 spouse or child study full-time and still keep E-2 dependent status?

Yes. Full-time study by a spouse or child does not conflict with derivative E-2 status. The family member does not need to convert to an F-1 visa to pursue full-time education. That said, if the dependent wants the benefits that specifically accompany F-1 status (such as Optional Practical Training, or OPT, for post-degree work), they would have to change status to F-1. Changing to F-1 should be carefully planned to avoid gaps in status and unintended immigration consequences.

What about remote work, self-employment, or owning a business?

Once a spouse has an EAD or I-94 showing "E-2S" status, he or she generally may work for any employer, be self-employed, or start a business in the United States. Many E-2 spouses use this flexibility to launch startup ventures, consult, or work remotely for foreign companies. Before beginning any paid activity, it is important to confirm that the spouse’s EAD or I-94 with "E-2S" is valid and unexpired.

Before obtaining an EAD or I-94 with "E-2S", performing work — even remote work for a foreign employer while physically present in the U.S. — is considered unauthorized employment and should be avoided. Volunteering in bona fide nonprofit roles that do not otherwise constitute employment is generally acceptable, but families should be cautious and seek legal guidance if unsure.

Practical documentation and evidence families should maintain

Maintaining clear, organized documentation helps protect both the principal investor and their dependents:

• Proof of relationship: marriage certificate for spouse; birth certificates for children.
• Copies of all E-2 and dependent visa stamps, passports, and I-94 arrival records.
• For a spouse seeking work: the I-765 receipt notice and, later, the EAD card.
• For children enrolling in school: immunization records, proof of residence, and prior school records/transcripts.
• Evidence that the principal investor continues to own and operate the qualifying E-2 enterprise (for example, financial statements, employee payroll, business licenses), which supports continued dependent status.

What happens when a child turns 21 or the family relationship changes?

Derivative E-2 status is tied to being an unmarried child under 21. When a child reaches 21 or marries, they generally lose derivative E-2 status and must either change to a different visa category, adjust status through another qualifying route, or depart the U.S. Common options include:

• Applying for an F-1 student visa (or changing status to F-1) to continue studies.
• Pursuing independent employment-based sponsorship if eligible.
• Exploring family-based immigration paths (e.g., a U.S. citizen parent petitioning, once available).

Families should plan ahead of the child's 21st birthday to avoid an unexpected loss of status and to ensure smooth transitions for education or employment plans.

Tax, healthcare, and practical living considerations

Employment in the U.S. creates tax obligations. A spouse who works — whether for a U.S. employer or a foreign company — will likely have federal and state tax reporting responsibilities. Consulting a tax professional who understands nonimmigrant tax rules is advisable.

Health insurance is another important consideration. Dependents should be covered either under the principal’s plan, a spouse’s employer-sponsored plan, or a private policy. Public benefits eligibility for nonimmigrants varies, so families should confirm what is allowed at the federal and state level.

Common questions and quick answers

• Can a spouse start working immediately upon entry? No — the spouse should wait for EAD approval before starting paid employment.
• Can a child work part-time? Not under derivative E-2 status unless the child has separate work authorization or another status that permits employment.
• Do dependents need a student visa to study? No — dependents may study with derivative E-2 status; they do not need to change to an F-1 visa unless they want specific F-1 benefits.
• Can a spouse own a business? Yes, once he or she has an EAD, ownership and active management generally are permitted.

Practical checklist for families arriving on E-2 status

• Confirm the principal investor’s E-2 approval and dependent visa issuance.
• Upon arrival, gather I-94 records and copies of passports and visas.
• Spouse: prepare and file Form I-765 to apply for an EAD (include marriage certificate and proof of E-2 dependent status).
• Children: contact the local school district to learn enrollment requirements and gather immunization and prior school records.
• Plan for health insurance and consult a tax advisor regarding employment and income reporting.
• Keep organized records proving the ongoing operation of the qualifying E-2 enterprise.

Every family’s circumstances differ, and immigration law can be nuanced. For tailored guidance about employment authorization, school enrollment, or long-term planning for children approaching age 21, it is wise to consult an experienced E-2 immigration attorney and other professionals (such as tax advisors and education counselors).

Would this family’s situation benefit from a personalized checklist or next-step plan? They can request case-specific advice to ensure they use their E-2 benefits correctly and avoid common pitfalls.

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.

Many investors wonder whether buying U.S. real estate can be the basis for an E-2 Treaty Investor visa. The short answer is: sometimes — but it depends on how the investment is structured and whether it meets the E-2 legal requirements.

Basics: What the E-2 visa requires

To assess whether a real estate plan will qualify, it helps to recap the core E-2 criteria. The E-2 is a nonimmigrant visa available to nationals of countries that have a qualifying treaty with the United States. Key elements include:

• Substantial investment in a bona fide U.S. enterprise.
• Investor nationality: the investor (individual or company) must be a national of a treaty country.
• At-risk capital: funds must be committed and subject to loss if the business fails.
• Control and active role: the investor must be entering the U.S. to develop and direct the enterprise.
• Non-marginality: the enterprise cannot be solely to provide a living for the investor; it must have the capacity to generate significant economic impact, usually by creating jobs.

The U.S. Department of State and U.S. Citizenship and Immigration Services (USCIS) publish guidance on E-2 requirements: see the Department of State's E-2 overview and USCIS's E-2 page for official detail.

Department of State: E-2 Treaty Investors

USCIS: E-2 Treaty Investors

Why passive real estate investments usually fail the E-2 test

Purely passive investments — such as buying a property solely to collect rental checks without a meaningful management structure — generally do not satisfy the E-2 rules. The visa is intended for investors who are coming to the U.S. to manage and grow an active commercial enterprise, not for those who want to be passive landlords.

Examples of investments that are often considered passive and unlikely to qualify:

• Buying a single-family home and renting it out long-term with minimal involvement.
• Purchasing shares in publicly traded real estate investment trusts (REITs) or similar securities.
• Owning multiple rental units but outsourcing all management with no significant operational role or staffing.

When real estate can work for E-2: active enterprises and value-added projects

Real estate can qualify for an E-2 visa if it is part of a clearly active commercial enterprise that meets the E-2 criteria. The decisive factor is whether the investment creates or sustains a real working business — not merely ownership of property.

Examples of qualifying real estate-based enterprises

• Hospitality businesses: Hotels, motels, bed-and-breakfasts, or short-term rental companies that are owner-operated, employ staff, provide services, and require active managerial oversight.
• Real estate development: Buying land or buildings and renovating, subdividing, or constructing for resale or lease as part of a development company with employees and contractors.
• Property management firms: A company that manages multiple properties, offers services (maintenance, marketing, tenant relations), and employs a team of on-the-ground staff.
• Mixed-use redevelopment: Converting commercial buildings into multi-unit spaces with retail, offices, and residential units that require an operating business to manage leasing, operations, and tenant services.
• Full-service real estate services: A real estate brokerage with an associated training center, corporate operations, or a value-added service model that relies on active business functions and staff.

In each case, the investor must show a meaningful, active role and evidence that the enterprise will be more than marginal — in practice this means hiring employees, generating business activity, and investing enough capital to be likely to succeed.

Key documentary and practical requirements

When real estate is central to an E-2 petition, adjudicators focus on evidence. The following are essential components of a persuasive submission:

Clear demonstration of an operating business

• Detailed business plan: A multi-year plan showing capital expenditures, revenue projections, staffing, marketing strategy, and timelines for leasing, renovation, or operations.
• Organizational structure: Company formation documents, operating agreements, and evidence of the investor's role (e.g., manager, officer, principal).
• Proof of employees: Payroll records, job descriptions, and hiring plans demonstrating job creation beyond the investor’s family.

Investment and source-of-funds documentation

• Escrow or purchase documents: Signed purchase agreements, escrow statements, proof of funds transfers, and closing statements.
• Source of funds: Bank records, sale agreements, gift letters, loan documents, or other documentation showing lawful origin of the capital.
• At-risk evidence: Demonstration that the investment is subject to commercial risk — e.g., funds spent on renovations, deposits not refundable, or equity transferred to company accounts.

Operational and financial indicators

• Licenses, permits, vendor contracts, vendor invoices for construction and services.
• Marketing materials, booking records (for hospitality), and contracts with management or staffing firms if relevant.
• Evidence that loans are structured in a way consistent with E-2 rules — for example, loans personally guaranteed by the investor or from third parties with risk to the investor, and not merely mortgage financing that shields investor capital.

Common pitfalls and how to avoid them

Certain mistakes frequently cause consulates or USCIS to deny E-2 cases that involve real estate. Awareness and advance planning can reduce risk.

Avoid classifying passive ownership as an enterprise

Merely owning rental units without an operational company, staff, or other active business processes is a red flag. If the investor expects to spend most of the time in the U.S. and run the business, the filing should show active tasks and staff oversight.

Don’t underfund the venture

The concept of substantiality is relative — smaller businesses can qualify if the investment is substantial in proportion to the enterprise’s total cost. However, a tiny investment in a property that logically requires significant capital (e.g., a full-scale hotel conversion) will look weak. The business plan should explain why the chosen investment amount is sufficient.

Be careful with financing structures

Debt can be acceptable, but adjudicators will scrutinize who bears the risk and whether funds are truly committed. If a purchase is heavily financed with a mortgage that leaves little investor capital at risk, the filing must explain how the investor's equity portion and operational funds are sufficient and irrevocably committed.

Provide consistent, credible documentation

Inconsistent or vague documentation about source of funds, ownership, or the investor’s role undermines credibility. Clear bank trails, executed contracts, and contemporaneous evidence of expenditures are vital.

Practical examples

Concrete scenarios can clarify what will and won’t work:

Qualifies

• An investor from a treaty country forms a U.S. company to purchase a rundown motel, invests $600,000 to renovate rooms, hires a general manager plus housekeeping and front-desk staff, signs service contracts, and markets the property to tourists — this active, job-creating operation is likely to meet E-2 standards.
• A developer purchases 10 acres, obtains permits, hires contractors, and establishes a development company that will build and sell multiple residential units. The business plan shows phased construction, sales forecasts, and payroll for site management — this active development enterprise could qualify.

Unlikely to qualify

• An investor buys a single condo and leases it long-term while living abroad, with a property manager handling everything — this passive arrangement is unlikely to meet the E-2 test of an active, job-creating enterprise.
• Purchasing publicly traded REIT shares or investing in a passive fund does not establish control or an operating enterprise, so it will not qualify for E-2 status.

How E-2 compares to EB-5 for real estate investors

Some readers will consider the EB-5 Immigrant Investor program as an alternative. In broad strokes:

• E-2 is a temporary nonimmigrant visa allowing investors to live and work in the U.S. while operating an enterprise; there is no direct path to green card under E-2 itself.
• EB-5 is an immigrant visa (green card) program that requires a larger investment and job creation (typically 10 full-time U.S. jobs) and has specific regional center and job-counting rules. For official EB-5 requirements, consult USCIS.

Often, smaller-scale active real estate businesses fit E-2 better, while developers seeking a permanent resident route and able to meet higher investment thresholds may explore EB-5. See USCIS for EB-5 guidance.

USCIS: EB-5 Immigrant Investor Program

Tips for investors considering a real estate-based E-2 strategy

• Plan the enterprise, not just the property: Build a documented business that shows operations, staffing, and revenue sources beyond passive rent.
• Prepare a strong business plan: Include financial projections, hiring timelines, market analysis, and detailed budgets for renovations and operations.
• Document the source of funds: Maintain transparent records for any sales, loans, or transfers used to acquire the property.
• Structure financing thoughtfully: Work with counsel and lenders to ensure loan documents and guarantees are consistent with E-2 requirements about risk and commitment.
• Demonstrate job creation: Even modest, realistic hiring plans that show sustained activity strengthen a petition.
• Engage experienced counsel: Immigration officers scrutinize real estate-based E-2 petitions closely; specialized legal advice can tailor the structure and documentation to maximize approval chances.

Questions an adjudicator is likely to ask

When reviewing a real estate-based E-2 application, adjudicators will typically probe:

• Is the investment at risk and irrevocably committed?
• Does the investor play an active managerial role?
• Will the enterprise create jobs or have other significant economic effects?
• Is the investment substantial in relation to the total cost of the enterprise?
• Are the source of funds and chain of title clear and lawful?

Final guidance

Real estate investments can form the basis of an E-2 visa, but success depends on structuring the acquisition as an operating commercial enterprise that demonstrates active management, at-risk capital, and potential for economic impact beyond supporting the investor alone. Passive ownership or mere rental income rarely satisfies E-2 standards.

Prospective investors should prepare a robust business plan, document the lawful source of funds, and show clear evidence of operational activity and job creation. Consulting immigration counsel familiar with E-2 treaty investor cases and real estate transactions is highly recommended to craft a strategy that aligns property investments with E-2 legal requirements.

Would a specific real estate project fit this framework? Consider sharing high-level details of the intended investment — structure, amount, and operational plans — to get tailored guidance and practical next steps.

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.

Moving from a business idea to E-2 visa approval is a process that rewards careful planning and clear evidence; this guide walks an applicant through each essential step so they can prepare with confidence.

Understanding the E-2 visa: who qualifies and what it allows

The E-2 Treaty Investor visa is a nonimmigrant classification for nationals of countries that maintain a qualifying treaty of commerce and navigation with the United States. It allows an investor to enter and work in the U.S. to develop and direct a business in which they have invested a substantial amount of capital.

Key requirements an applicant should know:

• Treaty nationality: The principal investor and any employees under E-2 must be nationals of a country that has an E treaty with the U.S.; the U.S. Department of State maintains the treaty list and visa guidance at travel.state.gov.
• Substantial investment: There is no fixed dollar amount, but the investment must be substantial relative to the cost of the enterprise and sufficient to ensure its successful operation.
• Bona fide enterprise: The business must be a real, active commercial or entrepreneurial undertaking producing goods or services for profit.
• Investor role: The applicant must be coming to the U.S. to develop and direct the enterprise (typically by owning at least 50% or possessing operational control).
• Marginality: The enterprise cannot be marginal; it must generate more than enough income to provide a minimal living for the investor and family, or it must have a significant economic impact in the U.S., generally evidenced by job creation.

Step 1: Confirm eligibility and choose the correct application route

Before committing funds, an applicant should confirm that they hold a qualifying treaty nationality and decide whether to pursue consular processing abroad or file a petition inside the U.S.

• Consular processing: Most applicants apply for the E-2 visa at a U.S. embassy or consulate abroad using the DS-160 nonimmigrant visa application and an interview. The Department of State provides instructions for the DS-160 at DS-160.
• Change of status or extension: An applicant already in the U.S. on another nonimmigrant status may file Form I-129 with USCIS to request E-2 classification. USCIS information on Form I-129 is available at uscis.gov/i-129.

Step 2: Choose and structure the business for visa success

Choosing the right business structure and ensuring it meets E-2 requirements are foundational steps. The enterprise should be active and capable of growth.

Practical matters to decide early include business type (LLC, corporation, partnership), ownership percentages, and management roles. If the investor will not be the day-to-day manager, documents should clearly show how they will direct operations.

Applicants should avoid arrangements that look passive—mere portfolio investments, rental-only real estate without active development, or holding company structures with no operational control—since E-2 requires active commercial enterprise.

Step 3: Build a persuasive, realistic business plan

A high-quality business plan is often the centerpiece of an E-2 petition because it translates the business concept into measurable outcomes and shows how the investment will produce jobs and revenue.

Essential sections to include:

• Executive summary: Clear description of the business, investor role, and the amount of capital invested or planned.
• Market analysis: Target market size, competition, customer segments, pricing strategy, and marketing approaches.
• Products and services: What the business will sell, development stage, proprietary advantages, and supply chain considerations.
• Management and organizational structure: Bios of key personnel, ownership breakdown, and governance.
• Operations plan: Location, facilities, equipment, suppliers, and timeline for ramp-up.
• Financial projections: Detailed 3–5 year projections with assumptions, break-even analysis, cash flow statements, profit and loss forecasts, and projected payroll/job creation schedule.
• Use of funds: Clear mapping of invested capital to specific expenditures (equipment, leases, inventory, marketing, salaries) with supporting receipts or contracts if available.

Small business resources such as the U.S. Small Business Administration provide templates and guidance for writing a business plan at sba.gov. Many applicants work with specialized E-2 business plan writers and immigration attorneys to ensure the plan addresses visa adjudicator expectations.

Step 4: Source and document lawful investment funds

Documenting the lawful source of investment funds is critical. An adjudicator must see that the funds were obtained through legitimate means and are at risk in the business.

Acceptable evidence often includes:

• Bank statements showing accumulation and transfers.
• Sale agreements and closing documents for property sales.
• Business financial statements and tax returns reflecting corporate transfers.
• Loan agreements, promissory notes, and proof the lender is not a sham; if using personal loans, documentation must show the investor’s ability to repay and the legitimacy of the source.
• Inheritance documents, affidavits, or probate records where applicable.

Funds held in escrow or transferred into U.S. accounts with traceable wire receipts strengthen the record. The investor must show the capital is committed and at risk—meaning funds have already been spent, transferred for business use, or otherwise placed in positions where loss is possible.

Step 5: Make the investment and begin business activities

To demonstrate a genuine enterprise, an investor should begin business activities as soon as feasibly possible after investing. Evidence of concrete operations helps meet the E-2 standard that the investment is more than speculative.

Examples of persuasive operational evidence:

• Commercial lease agreements and records of moved-in dates.
• Invoices and purchase orders for equipment, inventory, or services.
• Contracts with customers or suppliers, proof of sales, and marketing materials.
• Employee hiring records, payroll receipts, and job postings that align with the business plan’s staffing projections.

Keeping meticulous records from day one makes the later petition more straightforward and defensible.

Step 6: Prepare the petition and supporting documents

The documentation package must tell a consistent and compelling story. Whether filing Form I-129 with USCIS or preparing a consular packet for the embassy, the same evidentiary themes apply.

Typical documents to assemble:

• Proof of nationality: Passports, consular certificates, and any documentation proving qualifying nationality.
• Company formation documents: Articles of incorporation, operating agreements, bylaws, shareholder ledgers.
• Financial evidence: Bank statements, wire receipts, escrow agreements, proof of expenses paid.
• Contracts and leases: Signed leases, purchase contracts, supplier and client agreements.
• Business plan: The full plan with financial annexes and job creation schedule.
• Personal background: Resumes, CVs, professional licenses, and prior business experience demonstrating capacity to run the enterprise.
• Forms and fees: Completed DS-160 for consular applicants or I-129 for USCIS filings, plus relevant filing fees and passport photos.

If the application will request an Employment Authorization Document (EAD) for a spouse, the spouse should prepare to file Form I-765 after E-2 entry; USCIS details the I-765 at uscis.gov/i-765.

Step 7: Prepare for the consular interview or USCIS adjudication

For consular applicants, the interview is often the final hurdle. They should be prepared to explain the business model succinctly and answer questions about investment sources, job creation, and their role.

Practical interview tips:

• Bring original documents and organized copies; consular officers often request originals for verification.
• Practice concise, consistent answers that match the business plan and supporting evidence.
• Anticipate questions about job creation, projected revenues, and what will happen if the investment fails.
• Demonstrate that the business is not marginal by pointing to payrolls, contracts, or marketing commitments.

For applicants filing with USCIS, consider using premium processing for faster adjudication where available (check current eligibility and fee details on USCIS). Regardless of route, involving an immigration attorney can markedly reduce procedural mistakes and improve the quality of evidence presented.

Timing, costs, and realistic expectations

Timing varies significantly by case. Preparing the business plan and assembling source-of-funds documents can take weeks to months. Consular appointment wait times depend on the embassy and season; USCIS processing times likewise fluctuate.

Costs to budget for an E-2 application include the actual investment in the business, legal and accounting fees, business-plan preparation, government filing fees, and operational expenses such as leases and payroll. While no fixed minimum investment exists, many practical applicants invest in the tens or hundreds of thousands of dollars where the business model warrants it.

Common pitfalls and how to avoid them

Certain recurring weaknesses can lead to denials; they are usually addressable with better planning and documentation.

• Insufficient documentation of source of funds: Start gathering trustworthy records early—bank statements, sale agreements, and accountant-prepared statements mitigate this risk.
• Passive investments: Avoid investment structures that could appear passive; focus on demonstrable operational control and active management.
• Weak business plans: Generic or speculative plans that lack financial detail and realistic hiring timelines often fail to convince adjudicators.
• Poorly timed filings: Investing after filing, or having minimal business activity at the time of application, creates vulnerability. Demonstrable, at-risk investment and operational steps taken before adjudication strengthen the case.
• Ownership ambiguity: Clear, well-documented ownership percentages and governance documents are essential.

After approval: arrival, renewals, and next steps

When the E-2 visa is granted, the initial period of admission is typically up to two years, and E-2 status can be extended in increments. The investor should track renewal deadlines and maintain detailed business records to support future extensions.

Dependents—spouses and unmarried children under 21—may receive E-2 derivative status. A spouse has work permission incident to status and may apply for an EAD in the U.S. using Form I-765 after lawful entry in E-2 status; children cannot work.

Some investors consider longer-term immigration strategies while on E-2, such as pursuing immigrant visa categories. Because E-2 is a nonimmigrant classification, applicants should consult an attorney for advice tailored to long-term immigration planning.

Which part of the E-2 process feels most uncertain to an applicant—the business plan, documenting funds, or the interview? Identifying that area early lets them focus resources on strengthening the weakest link.

Taking the step from business plan to approved E-2 visa is complex but navigable with disciplined preparation, clear documentation, and professional guidance; careful work up front often translates into smoother adjudication and faster business growth in the United States.

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.

Proving where investment money came from is one of the most critical parts of any successful E-2 visa application, and yet applicants often underestimate how detailed consular officers and immigration officials can be. This guide explains what counts as a lawful source of funds, what documents typically satisfy the requirement, and how to present a clear, credible money trail for an E-2 Investor Visa application.

Why proof of a lawful source of funds matters for the E-2 visa

The E-2 visa USA is granted to investors from treaty countries who place a substantial amount of capital into a U.S. business. Beyond showing the investment is at risk and will generate employment, the applicant must show that the investment funds were obtained through legal means.

Consular officers and U.S. immigration authorities review funds closely to prevent fraud, tax evasion, and money laundering. Failing to document the lawful origin of funds can delay a case, lead to a request for evidence (RFE), or mean denial—even when the business plan and investment itself are solid.

Understanding the standard: what “lawful source” really means

Lawful source of funds means demonstrable evidence that money came from legitimate activities or transactions that are legal in the country of origin and in the United States. The focus is less on the specific label of the source and more on credible documentary proof that ties funds to legal transactions, taxation, or corporate records.

There is no single form of proof required; instead adjudicators assess whether the totality of documents tells a coherent, verifiable story. It is wise to assume that officials will scrutinize unusual transactions, large cash movements, offshore transfers, and links to politically exposed persons.

Common acceptable sources and the documentation that supports them

Below are commonly accepted origins of investment funds, and the specific evidence applicants should provide to build a robust money trail.

Personal savings or salary

Evidence should show how savings accumulated over time from lawful employment or business activity.

• Bank statements covering the accumulation period, ideally showing steady deposits and balances.
• Pay stubs, employment contracts, and employer letters describing salary and employment dates.
• Tax returns and wage reports demonstrating declared income (link: IRS).

Sale of a property, business, or other asset

Provide documents showing ownership, the sale process, and receipt of proceeds.

• Purchase agreement and closing statement for the asset sold.
• Title transfer records and bank records showing receipt of sale proceeds.
• Capital gains tax filings or receipts to show the transaction was reported to tax authorities.

Inheritance

Inheritance is accepted if it is supported by estate documentation.

• Death certificate and original will or probate/estate letters.
• Court orders distributing assets, bank statements showing transfer of funds, and tax documents related to the estate.

Gifts from family or friends

For gifts, the donor must be identified and able to show the legality of funds.

• A written gift affidavit from the donor that includes relationship, amount, and confirmation that repayment is not expected.
• Donor’s bank statements, tax returns, and identity documents to substantiate origin of the gifted funds.

Loans

Loans are acceptable but must be commercial in nature, documented, and fully traceable.

• Signed loan agreement with interest rate, repayment terms, and lender/borrower identification.
• Evidence that the lender had the funds (bank statements) and that the loan was used for the specific investment (wire transfers, receipts).
• Loans from family should be treated like gifts with loan terms clearly documented to avoid questions about personal ties.

Corporate funds or capital contributions

When investing through a corporate entity, present clear corporate records.

• Articles of incorporation, shareholder agreements, and corporate resolutions authorizing the investment.
• Audited financial statements, ledgers, and minutes showing distribution of funds to the U.S. entity.
• Bank transfers from corporate accounts, invoices for asset purchases, and accounting entries.

Proceeds from securities, IPOs, or business exits

Show broker statements, sale contracts, and transfer records.

• Brokerage account statements showing sale of shares and subsequent transfer of proceeds to bank accounts.
• Stock purchase/sale agreements, escrow documents, and capital gains tax filings.
• SEC filings or public notices for larger exits (link: U.S. Securities and Exchange Commission).

Cryptocurrency

Cryptocurrency can be used as long as a verifiable chain of custody and legal source are documented—a common area of heightened scrutiny.

• Exchange records showing purchase history and KYC (know-your-customer) verification.
• Wallet transaction logs, blockchain transaction IDs, and records of conversion to fiat currency with bank transfers.
• Expert statements or forensic reports tying wallet addresses to lawful transactions where necessary.

How to assemble a credible money trail

Applicants should construct a chronological, annotated file that links each step from the original source to the final investment. The goal is to make the path easy to verify for an officer.

• Start at the source: Show where the funds originated—employer, buyer, deceased estate, brokerage, etc.
• Show transfers: Provide bank/wire records demonstrating each movement of funds, with dates and counterparties.
• Document conversion: If funds moved across currencies or borders, include currency exchange receipts and foreign bank statements.
• Connect to the investment: Show how the funds were used to purchase assets, pay deposits, or fund operations (receipts, purchase agreements, capital account entries).
• Organize an index: Provide a table of contents or annotated chronology so officials can follow the trail quickly.

Addressing high-risk scenarios and red flags

Certain situations attract extra scrutiny and should be proactively explained with strong documentation.

• Large cash deposits: Provide credible explanations and receipts showing how cash was accumulated and deposited.
• Unexplained wealth spikes: Reconcile sudden increases with sale documents, bonuses, or other evidence.
• Offshore accounts: Include certified translations, offshore bank statements, and compliant tax filings showing reporting of funds. Be mindful of international tax compliance obligations.
• Politically exposed persons (PEPs): Expect deeper scrutiny—disclose relationships early and provide clear legal sources and compliance records.

For more background on anti-money laundering guidelines — and why this matters — see FinCEN.

Common pitfalls and how to avoid them

Many E-2 applicants falter not because they lack lawful funds, but because their supporting documentation is incomplete, inconsistent, or poorly organized.

• Lack of corroborating documents: Don’t rely on a single statement. Combine contracts, bank records, tax filings, and third-party confirmations.
• Poorly explained transfers: If funds pass through multiple accounts, explain each transfer with date-stamped records and purpose statements.
• Missing translations or notarization: Provide certified translations for non-English documents and notarize affidavits where possible.
• Late evidence submission: Address potential issues before the interview or application submission to reduce RFEs.

Practical steps, checklist, and timelines

Building a strong lawful-source package takes time. Start early and follow a checklist to ensure nothing is missed.

• Collect personal IDs, tax returns, and bank statements covering the period when funds accumulated.
• Secure original contracts: sale agreements, probate documents, loan agreements, corporate minutes.
• Gather third-party corroboration: employer letters, buyer/seller confirmations, trustee letters.
• Translate and notarize non-English documents.
• Create an annotated chronology linking documents to each step of the funds’ journey.
• Prepare donor affidavits or loan agreements signed and dated before funds were transferred where possible.
• Allow time for forensic accounting or expert reports if funds are complex (e.g., large crypto holdings or cross-border corporate distributions).

Depending on complexity, compiling and validating these records can take weeks to months. Starting well before a consular appointment or USCIS filing is essential.

What to expect at the consular interview or RFE stage

Officers will ask focused questions about the origin and movement of funds, and they will compare verbal explanations to the documentary record. Confidence, consistency, and an organized folder make a strong impression.

• Bring originals and clear copies of all documents, plus an indexed binder with a table of contents.
• If an officer requests additional evidence (RFE), respond promptly with the requested documents and a covering letter that ties the response to the specific RFE points.
• When presenting complex chains (e.g., multiple transfers across countries), include a short, written narrative or timeline that summarizes the flow in plain language.

When to consult an expert

Complex funding situations—large cross-border transactions, cryptocurrency-heavy portfolios, business exits involving multiple shareholders, or loans from third parties—often benefit from a lawyer and a CPA or forensic accountant. Professionals can:

• Help reconstruct a clear money trail and prepare sworn statements or expert reports.
• Draft or review loan agreements, gift affidavits, and corporate resolutions to ensure they meet commercial and immigration expectations.
• Coordinate with banks and accountants to obtain properly authenticated documents.

An experienced E-2 attorney will anticipate consular questions and frame evidence so it addresses common officer concerns directly.

Practical examples (hypothetical) that illustrate good documentation

Example 1: She sold a family apartment in her home country and used proceeds to fund a restaurant in the U.S. Her submission included the original sales contract, the notarized closing statement showing buyer and seller signatures, the foreign bank statement showing the incoming sale proceeds, a certified translation of the closing documents, proof of tax payment on the sale, and the wire transfer records to the U.S. business account.

Example 2: He converted a long-held crypto position into USD. He produced exchange purchase records showing the initial crypto acquisition, the exchange’s KYC documents, transaction logs and blockchain IDs for transfers between wallets, liquidation records on an exchange, and bank account records showing the USD deposit—tied to business investment transfers. He also provided a short expert memo explaining the chain of custody.

Questions applicants should ask themselves before filing

These simple questions help reveal gaps before an application meets an officer:

• Can each large deposit be linked to a verifiable transaction or income source?
• Are there contemporaneous documents (contracts, receipts, tax filings) to corroborate the story?
• Have all non-English documents been translated and, where appropriate, notarized?
• Would a neutral third party (bank, accountant) be able to verify each step quickly?

Preparing a clear, verifiable record of the lawful source of investment funds reduces stress, shortens processing times, and increases the chance of approval. If questions remain about how best to document a particular source—especially in complex or novel situations—seeking experienced legal and accounting advice early will save time and protect the case.

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.

The E-2 visa’s “marginality” test is one of the most misunderstood parts of applying for a treaty investor visa — yet it often determines whether an investor’s application will succeed. This article explains, in plain terms, what counts as “more than minimal” income and how investors can demonstrate that their business satisfies the requirement.

What the marginality requirement is — and why it matters

At the core of an E-2 visa adjudication is the requirement that the qualifying enterprise be a real, active commercial enterprise that is not merely marginal. In practice, this means the enterprise must do more than provide a minimal living for the investor and family: it must either produce significant income or have the capacity to create job opportunities for U.S. workers.

Consular officers and U.S. immigration authorities review the business to determine whether it has a realistic economic footprint. If the enterprise is found to be marginal, the applicant may be denied because the E-2 classification is intended to promote economic activity and employment in the United States, not just to provide a residence for the investor and family.

Two ways to meet the “more than minimal” standard

There are two common approaches to satisfying the marginality requirement. An investor can demonstrate either (or both):

• Substantial income generation — the business is expected to generate income beyond what is needed to support the investor and their family at a minimal subsistence level; or
• Job creation — the business will create full-time jobs for U.S. workers beyond the investor and their family.

Adjudicators accept either pathway, but the evidence and timing differ: start-ups often rely on robust business plans and pro forma financials, while established businesses should provide historical financials, payroll records, and tax returns.

There is no single dollar cutoff — what decision-makers consider

Unlike some immigration rules that use fixed numbers, the E-2 marginality test has no statutory dollar threshold. Instead, adjudicators consider the totality of circumstances. Key factors include:

• The investor’s household needs relative to projected or actual business income;
• Realistic timelines for when the business will reach sustainable revenue and profitability;
• Evidence of hiring or reasonable plans to hire U.S. employees;
• The level of capital invested and how it is being used (operations, marketing, hiring, equipment); and
• Industry norms and local market context (some businesses are naturally low-margin but may justify size through employment).

Official guidance from the Department of State and U.S. Citizenship and Immigration Services (USCIS) reflects this flexible, fact-specific inquiry. See the State Department’s E-2 info and USCIS guidance for background: travel.state.gov — E-2 Investor and uscis.gov — E-2 Treaty Investors.

What counts as “income” for the marginality test?

Adjudicators will look at the enterprise’s capacity to generate economic benefit. This includes, but is not limited to:

• Payroll and wages paid to the investor and any U.S. employees;
• Net business profits shown on profit and loss statements and tax returns;
• Projected revenue growth in a credible pro forma for start-ups;
• Distributions or dividends from the business to the investor (properly documented); and
• Other documented sources of income that the investor legitimately intends to use (e.g., contracts, retainers, recurring service fees).

Adjudicators will generally not credit speculative or unsupported claims of future income. In renewal applications, actual historical financial performance (tax returns, W-2s/1099s, bank statements) carries significant weight.

Illustrative examples: how income evidence can meet — or fail — the test

Example A — Small consultancy run entirely by the investor: If the investor projects that the consultancy will pay a single salary that only covers the investor’s modest personal living expenses, adjudicators may view the enterprise as marginal. Even if the consultant bills a steady stream of clients, the business’s economic footprint may be seen as insufficient unless those funds are shown to generate broader economic impact.

Example B — Start-up with realistic hiring plan: A tech start-up invests $200,000 in product development and commercial operations, presents a detailed five-year pro forma showing break-even in 18 months, and plans to hire five full-time U.S. employees in year two. With supporting market research and contracts, adjudicators may find the business will create employment and therefore is not marginal.

Example C — Retail store demonstrating immediate local employment: A restaurant opens with committed lease, equipment purchases, payroll for a staff of eight, and initial sales receipts. The combination of actual payroll and immediate hiring clearly supports a non-marginal finding.

Practical calculations and benchmarks to prepare

Because no fixed dollar rule exists, investors should use defensible, documented benchmarks to show the business will do more than provide minimal subsistence. Helpful reference points include:

• The federal poverty guidelines as a baseline for minimal living costs (useful when arguing that the business will produce income well above poverty): HHS Poverty Guidelines.
• Market salary data from sources like the Bureau of Labor Statistics to justify salary assumptions for new hires.
• Industry revenue-per-employee metrics, where applicable, to show realistic growth and job-creation potential.

Examples of a simple calculation an adjudicator might find persuasive (illustrative only): If a household of three has an annual subsistence threshold of $30,000, a business projecting net cash flows of $60,000 annually (after reasonable reinvestment) is showing income that is clearly above minimal subsistence. If, in addition, the enterprise plans to hire two U.S. employees at market wages, it strengthens the case further.

Evidence that strengthens an E-2 marginality showing

Investors should assemble a fact-based file that demonstrates economic reality. Useful items include:

• Five years of pro forma financial statements for start-ups, with clear assumptions and sensitivity analyses;
• Historical financial statements (balance sheet, profit & loss, cash flow) for operating businesses;
• Federal and state tax returns evidencing reported income;
• Payroll records, W-2s, 1099s, and hiring documentation;
• Bank statements showing capital deployment and operating receipts;
• Signed client contracts, purchase orders, and invoices demonstrating revenue pipeline;
• Lease agreements, vendor contracts, and equipment invoices showing business commitments;
• Business licenses and registrations; and
• Third-party market research or letters from customers/suppliers validating demand.

Clear organization matters: annotate financial statements, explain assumptions in pro formas, and connect each piece of evidence to the specific marginality argument.

Common mistakes that lead to marginality denials

Several recurring errors undermine an investor’s case:

• Overly optimistic revenue projections without corroborating evidence or unrealistic timelines;
• Failing to show hiring plans or classifying labor as independent contractors when those roles should be employees;
• Using personal loans and draw-downs as a substitute for demonstrable business revenue without a plan showing how these funds will create sustainable operations;
• Relying exclusively on the investor’s personal outside income (e.g., rental income or investments elsewhere) while the U.S. enterprise remains inactive or marginal; and
• Poorly documented capital investment — for example, claiming funds were “invested” without bank transfers, invoices, or receipts to prove deployment into the U.S. business.

How the approach differs at initial application vs renewal

For initial E-2 applicants with a newly capitalized start-up, consular officers and USCIS tend to accept detailed pro formas and business plans — but they expect realism and concrete steps already taken (leases signed, equipment purchased, employees recruited). For renewals and extensions, adjudicators place greater emphasis on actual results: tax returns, payroll records, and operational evidence showing the enterprise has moved beyond minimal activity.

Practical tips for preparing a persuasive marginality showing

To reduce risk and maximize the strength of a filing, investors should consider these practical steps:

• Document capital deployment — show bank transfers, vendor invoices, and receipts tied to the U.S. enterprise.
• Create realistic pro formas — include month-by-month cash-flow forecasts for the first year, then annual projections, with clear assumptions and sensitivity scenarios (best, expected, worst case).
• Prioritize early hiring where feasible — even one committed U.S. hire can shift the marginality analysis positively when combined with credible growth plans.
• Use third-party validation — letters from customers, signed purchase orders, or pilot contracts make projected revenues more believable.
• Align salaries with market norms so payroll numbers are defensible based on industry data.
• Keep personal and business finances distinct — avoid mixing funds in a way that makes the enterprise’s viability unclear.

Sample document checklist to show “more than minimal” income

Investors should tailor evidence to their business, but a credible submission often includes:

• Business plan and executive summary;
• Three-year pro forma financial statements and cash-flow forecasts, annotated;
• Recent bank statements showing capital transfers into the business;
• Invoices, contracts, and receipts demonstrating current revenue or revenue commitments;
• Lease or purchase agreements for business premises and equipment invoices;
• Payroll records, W-2s, and employment agreements;
• Tax returns for the business (or personal returns tied to business income) when available;
• Market research or industry reports; and
• Letters from suppliers or customers evidencing ongoing business relationships.

When an investor has outside income or multiple ventures

If the investor has other legitimate income sources (rental income, pensions, investments), adjudicators may consider overall household resources. However, relying on outside income to cure a marginal U.S. enterprise is risky: the E-2 classification requires that the qualifying enterprise itself be more than marginal or be creating employment. If the investor’s strategy is to combine income sources, it should be clearly explained and documented; ideally, the U.S. enterprise’s economic impact should stand on its own or be shown to be on a credible growth trajectory.

For investors operating multiple business interests, it is important to show how the qualifying enterprise specifically contributes to economic activity and employment. Simply listing several small projects without evidence that any one will expand beyond minimal subsistence is unlikely to satisfy adjudicators.

Final practical thought

Proving that an E-2 enterprise is not marginal is ultimately about credibility and concrete economic impact. Whether through demonstrable income above subsistence or the creation of U.S. jobs, the investor’s evidence should tell a coherent story: realistic assumptions, documented steps already taken, and a plausible path to sustained operations. Thoughtful preparation — with realistic financials, third-party validation, and clear documentation of hiring and capital use — makes the difference between an application that survives scrutiny and one that falls short.

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.