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The marginal enterprise rule for E-2 status

Among the things individuals from other countries sometimes invest in are businesses here in America. Individuals who have made such an investment sometimes wish to spend time in the U.S. to help develop the business they have invested in. One option such individuals may have is to apply for E-2 nonimmigrant status.

E-2 status allows certain foreign investors who have made (or who are in the process of making) a substantial capital investment in a U.S. business to temporarily stay in the U.S. to develop/direct the business. Generally, this status can last up to two years, with extensions being available if needed.

As a note, this status is only available to investors from countries that the U.S. has a relevant treaty with.

Being from a treaty country, however, does not automatically mean a foreign investor would qualify for E-2 status. There are many eligibility requirements present for this status.

Given this, there are a variety of things that could disqualify a foreign investor from being able to get E-2 status in relation to a business investment they have made in America. One is if the U.S. business they have invested in is deemed to be marginal, as U.S. immigration law prohibits marginal enterprises from being qualifying targets for investment when it comes to E-2 eligibility.

Generally, an enterprise is considered marginal if it is deemed to lack income-generating abilities capable of supporting (through providing a minimal living) the investor and their family. As a note, when it comes to whether or not a business is marginal, it is not only its current income-generation situation that can matter, but also its future income-generating abilities. So, lots of different things could touch on whether a business is marginal.

As one can see, whether or not the U.S. business they are investing in is marginal can be a complex and impactful issue for a foreign investor when they are seeking E-2 status.

Given how many things have the potential to impact E-2 eligibility, an investor pursuing E-2 status may want a skilled immigration attorney's help with addressing issues that come up during the application process.

Source: U.S. Citizenship and Immigration Services, "E-2 Treaty Investors," Accessed July 12, 2016

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