Starting or buying a business in the United States is a practical way for foreign investors to build their ventures. The E-2 Treaty Investor visa allows nationals of treaty countries to do this by investing in and managing a real, operating enterprise. To qualify, investors must show that the business is active, legitimate, and creates measurable economic value. One reliable way to demonstrate this contribution is by creating or maintaining jobs for U.S. workers, a factor officers review when assessing an E-2 application.
The Legal Foundation
The concept of job creation under the E-2 program is based on the non-marginality rule in the U.S. Department of State Foreign Affairs Manual (9 FAM 402.9-6(E)).
An enterprise is considered non-marginal if it has the present or future capacity to:
- Generate income significantly above what is needed to support the investor and family
- Make a significant economic contribution to the United States.
The U.S. Citizenship and Immigration Services (USCIS) defines a qualifying E-2 enterprise as a real and operating commercial enterprise producing a service or commodity. Together, these standards make clear that the business must demonstrate genuine activity and a measurable economic benefit.
How Job Creation Proves Eligibility
Job creation is the clearest way to show that an E-2 enterprise is more than marginal. Officers assess whether the business contributes to the broader U.S. economy rather than only supporting the investor’s household.
A single full-time position may be sufficient if operations show consistent income and growth potential. A small restaurant employing two servers, a logistics company hiring dispatch staff, or a design firm with a project assistant all demonstrate the kind of active enterprise described in the E-2 standards.
To prove this contribution, investors should provide objective records that confirm employment and real commercial activity. Strong evidence includes:
- Employee information: Names, job titles, and proof of lawful work authorization.
- Payroll and tax filings: Forms W-2, quarterly tax returns, or payroll reports showing regular wage payments.
- Business activity records: Contracts, invoices, and supplier payments confirming ongoing operations.
- Financial statements: Bank records or accounting reports showing steady expenses and revenue consistent with the business scale.
When these materials are consistent, they confirm that the enterprise is real, active, and contributing to the U.S. economy as required by federal standards.
Demonstrating Future Job Creation
For new or recently purchased businesses, hiring may still be underway. Credible projections are acceptable if they are supported by evidence. Strong submissions include:
- A detailed business plan outlining positions to be created within five years.
- Financial forecasts showing revenue sufficient to sustain those hires.
- Organizational charts or job descriptions that clarify operational structure.
Projections must be realistic and supported by documented assumptions, not speculative figures.
Retaining Existing Jobs
When an investor acquires an existing U.S. business, retaining current employees can also satisfy the economic-contribution requirement. The investor should show that the company’s jobs were at risk before the purchase and that the new investment stabilized or expanded operations. Evidence may include earlier profit-and-loss statements, payroll records, or proof that the business faced decline before acquisition.
Maintaining local employment demonstrates continued economic value to the U.S.
Common Mistakes
Hiring only family members: Officers look for employment benefiting U.S. workers beyond immediate relatives.
Relying solely on independent contractors: While contractors support operations, direct employees provide stronger evidence.
Seasonal or temporary positions: Short-term work may not demonstrate sustained impact. Permanent employment relationships work best.
Missing documentation: Incomplete payroll records or unfiled tax returns trigger Requests for Evidence (RFE) or denials.
Unrealistic projections: Inflated forecasts or unsupported hiring timelines damage credibility. Base projections on industry data and conservative assumptions.
Marginal business models: Home-based consulting or e-commerce operations without employees face higher scrutiny.
Action Steps
- Establish proper payroll systems and file all taxes on time
- Work with professionals who understand E-2 requirements
- Maintain organized business records from day one
- Track progress toward your business plan goals
- Prepare renewal documentation showing sustained contribution
Conclusion
Start documenting from day one. Every payroll run, every tax filing, every employee hire builds your case for renewal. Since the E-2 status isn’t permanent, applicants need to prove continued economic contribution every few years. Treat record-keeping as seriously as you treat operations because your visa depends on both.
Sources
- U.S. Citizenship and Immigration Services. E-2 Treaty Investors, https://www.uscis.gov/working-in-the-united-states/temporary-workers/e-2-treaty-investors
- U.S. Department of State. 9 FAM 402.9-6(E) – Marginality.
https://fam.state.gov/fam/09FAM/09FAM040209.html