The E-2 marginality test asks one question: will this business earn more than a basic living for you and your family? The rule has not changed, but the evidence officers expect to see has.
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A marginal business is one that cannot produce more than a minimal living for the investor and family, now or within about five years. To pass, show a real economic impact, most often by hiring workers and producing revenue.
Advisers who prepare E-2 financials report that in 2026 officers rely more on payroll, real revenue and bank activity than on large cash balances or ambitious projections.
This page provides general information about U.S. immigration law as of September 26, 2026. It is not legal advice, and reading it or using the calculator does not create an attorney-client relationship. Every case depends on its own facts, and the law and consular practice change often. Speak with a licensed attorney before you invest money or file an application.
Under 9 FAM 402.9-6, an E-2 business cannot be marginal, meaning it lacks the present or future capacity to earn more than a minimal living for the investor and family. The future capacity should generally be realizable within five years of starting normal business activity. The usual way to show it is job creation for U.S. workers and income above the owner’s living costs.
| Evidence | What used to be enough | What officers expect now |
|---|---|---|
| Cash | A large bank balance could carry the file | Cash matters, but it is not the story |
| Revenue | Little trading in the first years was tolerated | Real revenue that fits the industry and the plan |
| Payroll | Rarely asked about early on | W-2s, W-3s and quarterly wage reports are common requests |
| Jobs | Nice to have | Central to showing the business is not marginal |
| Projections | Largely taken at face value | Must match actual spending and bank activity |
This summary reflects what E-2 accounting advisers reported in September 2026. It describes how cases are being reviewed, not a change in the written rule.
The law does not set a number. Advisers now cite a working benchmark of three to five full-time W-2 employees within five years, with the first hire expected within 12 to 18 months. Employees on payroll carry more weight than occasional contractors.
Budget payroll from the start where the business model allows. Our capital calculator shows what one full-time employee costs in your state at minimum and typical wages.
At renewal, officers compare the business plan with what happened. Two illustrative files show the shift:
A loss in the early years is not fatal. A business that is funded but not operating is the bigger problem.
Each E-2 requirement has its own page with plain-language answers, official sources and the documents you will need.
The free capital calculator and how a “substantial” investment is judged.
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2Nationality & treaty countriesWho qualifies by citizenship, the 50% ownership rule, dual citizens and new treaties.
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3Source of fundsSavings, sales, loans, gifts and inheritance: what counts and how to prove it.
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4Business started? At risk & escrowDoes the business need to be open, what “at risk” means, and how escrow protects you.
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5Marginality & job creationThe “more than a living” test, how many hires, and what officers ask for in 2026.
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6E-2 news 2026Interviews, where to apply, fees, reciprocity and policy changes that affect investors.
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The law sets no number. Advisers cite three to five full-time W-2 employees within five years, with the first hire in 12 to 18 months, as a working benchmark for showing the business is not marginal.
It is possible, but hard. You must show the business will earn well beyond a basic living for your family. Without employees, officers look for strong revenue and a credible growth plan.
Not necessarily. Early losses can be acceptable if the business is really operating, with revenue, payroll and spending that follow the plan.
Payroll records (W-2, W-3 and quarterly wage reports), tax returns, profit and loss statements, bank statements, contracts and invoices, and a business plan whose projections match actual results.
A calculator gives an estimate. We review your business, your budget and your source-of-funds paper trail before you commit money or file.
Ozek Law Firm, LLC · Tolga Ozek, Attorney at Law
4500 East West Highway, Suite 150, Bethesda, MD 20814
+1 (202) 854-8545 · info@ozeklaw.com · ozeklaw.com/contact
Admitted in Maryland, New York, California and Washington, D.C.; federal immigration practice throughout the United States. Consultations in English, Turkish, Spanish and Swedish; interpreters for other languages.
Legal disclaimer: This page is for general information only and does not constitute legal advice. Use of this page or its tools does not create an attorney-client relationship with Ozek Law Firm, LLC. Do not act or refrain from acting based on this content without consulting a qualified attorney about your situation. Information is current as of September 26, 2026 and may change. Prior results do not guarantee a similar outcome. Attorney Advertising. The calculator gives estimates based on the numbers you enter, the Foreign Affairs Manual and current wage data as of September 26, 2026. It is not a legal threshold, and the consular officer makes the final decision. No attorney can guarantee a result.
