Written by attorney Linda Yin Liang

Marginality Test In E2 Investment Visa Application

Marginality Test of E2 Investor Visa Am I eligible for investor visa? Will my investment be considered too small? This is a legitimate concern, because other than home country requirement, the most challenging requirement of E2 (investor visa) is that the investment has to be substantial. That is to say, the investment cannot be marginal. Under 8 CFR 214.2(e)(15), the purpose of the marginality requirement is to weed out commercial enterprises, regardless of size, which will fail to become viable, that is to grow and become profitable. The determination of whether an investment is marginal depends, in all cases, on the specific circumstances and facts involved. The rule provides that the capacity of an enterprise to make a significant economic contribution is an appropriate consideration in a marginality determination. The rule also requires that an applicant demonstrate that an investment will generate a positive income within a reasonable period of time. The burden is on the alien to demonstrate the enterprise's capacity to become a viable commercial entity by presenting a business plan showing that the business will provide more than a subsistence living for the investor, within 5 years from the onset date of normal business activities. This business plan will assist USCIS in determining whether the alien's intention in making the investment is to establish a viable enterprise. The 5-year business plan enables the USCIS to gauge progress toward tangible goals after the enterprise is in place. The business should generate more than enough income to provide a minimal living for the investor and his or her family. The USCIS will continue to assess whether the investor's enterprise is marginal at every E adjudication, even after the initial 5-year period is completed.

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