The marginality of a business is also one of the most common reasons why investors in smaller businesses are denied E-2 visas. For this reason, investors should address this issue carefully paying careful the legal issue of marginality as set forth by USCIS and the U.S. consulates.
The Code of Federal Regulations states to qualify for E-2 status, the petitioner must not have invested in a marginal enterprise solely for the purpose of earning a living for him– or herself and his or her family. The code defines a marginal business as an enterprise that does not have a present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. However, an enterprise that does not have the capacity to generate such income but does have a present or future capacity to make a significant economic contribution is not considered a marginal enterprise.
In other words, if the investment will indirectly expand job opportunities locally or otherwise have a positive significant impact on the local economy, the applicant may still qualify even though the income from the business may only be enough to sustain the investor and his or her family. Direct employment, is of course easier to show and less controversial.
The projected future capacity (either to generate more than marginal income or to make a significant contribution) should be realized within five years from the date the alien commences normal business activity of the enterprise. Therefore, a treaty enterprise does not necessarily have to realize this projected future capacity within the first year. Of course, the sooner it occurs, the happier the investor will be.
Investors should provide as much evidence as they can to address the question of marginality. It is recommended that the investor submit a reliable business plan to verify the capacity to realize a sufficient profit within a maximum of five years. History of having employees, shown by a combination of I-9 and 940 forms shows directly the business is not marginal.
If you are looking to invest in the United States and are unsure about what the best course of action is for you to take, contact the law firm of Geygan & Geygan, Ltd. today to speak with one of our experienced immigration attorneys. The immigration laws are confusing, and once you apply for a particular visa and get denied, you may not be able to apply again. Call our office today for a free case evaluation. You can reach us by contacting us online to schedule an appointment, or you may call us at 513-791-1673.