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.