No rule sets an E-2 income figure or headcount. What 8 CFR 214.2(e)(15) really tests, how the 5-year window works, and what evidence carries it.
Reviewed by Ekaterina Fitenko, Esq. — Florida Bar #1064536. With 20+ years of experience in the legal field, she prepares E-2 filings for Russian- and Ukrainian-speaking investors, including the income and payroll evidence behind the marginality showing, in English and Russian.
An E-2 business does not need a set income or a set number of employees. It needs to show that it is not "marginal," which 8 CFR 214.2(e)(15) defines as an enterprise without the present or future capacity to generate more than enough income to provide a minimal living for the investor and family. The regulation does not state a dollar amount, and it does not mention a headcount.
The rule gives two ways through. The enterprise can show the capacity to earn more than a minimal living for the investor and family, now or in the future. If it cannot, it can still pass by showing a present or future capacity to make a significant economic contribution. Under the same paragraph, that projected future capacity should generally be realizable within 5 years from the date the investor starts the normal business activity of the enterprise.
That is the whole test, as read on November 6, 2026 in 8 CFR 214.2(e)(15) and 9 FAM 402.9-6(E). Statements such as "you must hire two employees" or "you need three employees in the first year" have no source in either text. Jobs are strong evidence, and a payroll helps more than almost anything else in the file. They are still evidence, and no rule makes them a requirement.
This page is about the marginality test alone. The amount of the investment is a different requirement, explained in our E-2 guide.
The statute itself speaks of investing a substantial amount of capital, and 8 CFR 214.2(e)(2)(i) draws the contrast: a substantial amount of capital in a bona fide enterprise, "as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living." E-2 is not a route for buying yourself a job.
Each part of the definition does specific work, and the table below reads it in pieces.
| Words of 8 CFR 214.2(e)(15) | What they mean for your file |
|---|---|
| "present or future capacity" | A new business does not have to earn this today. A plan can carry the point, if the plan is believable. |
| "more than enough income to provide a minimal living" | Covering the family's basic needs is not enough. The capacity has to exceed that. |
| "for the treaty investor and his or her family" | Family size matters. The same income reads differently for a single person and for a family of five. |
| "significant economic contribution" | An alternative route for an enterprise that does not meet the income test. The term is not defined. |
| "generally be realizable within 5 years" | A guide with some flexibility, tied to the start of normal business activity. |
There is a small discrepancy in the sources about when the 5 years begin. The regulation and 9 FAM 402.9-6(E) run the period from the date the investor commences normal business activity. The USCIS E-2 page, read on November 6, 2026, says five years "from the date that the treaty investor's E-2 classification begins." Where the two dates differ, build the projection so that it works under the earlier one.
No figure is published. Neither 8 CFR 214.2(e)(15) nor 9 FAM 402.9-6(E) ties "minimal living" to a salary, a poverty guideline or a formula. A person who gives you a precise threshold is giving you an opinion. Because the test turns on the family, the number the officer has in mind will depend on who is coming.
The question is about the enterprise's capacity, which is broader than the salary on the first paycheck. We show what the business can pay the investor and what it retains after expenses. An owner who draws little in the early years to reinvest can still show capacity if the books and the plan support it. An owner who cannot see any path past paying personal bills has a problem no presentation will fix.
Income should also be plausible for the place where the family will live. An officer who sees a projected owner's draw that could not support the family named in the application will doubt the plan. We compare the plan with the family's actual costs, which also tells the client something useful before anyone files.
None is the legal answer, and for most files more than none is the practical one. 8 CFR 214.2(e)(15) contains no employee count. 9 FAM 402.9-11(B), however, lists payroll registers, records of salaries, W-2 and W-4 forms and canceled salary checks as evidence on marginality, and those documents exist only if people are being paid.
Jobs help in two ways. They show that the enterprise is growing past one person's living. They also support the second route, a significant economic contribution, because paying other people's wages is the plainest contribution a small business can make. A business that consists only of the investor must carry the whole showing on income.
Do not confuse E-2 with EB-5. The number 10 in the conversation about jobs comes from the immigrant investor category: INA 203(b)(5) requires full-time employment for not fewer than 10 qualifying workers. That rule has no counterpart in E-2. See what EB-5 takes if that is the route you are comparing.
Independent contractors are a gray area. The rules are silent on how they count, because the rules do not count anyone. In a file they are weaker evidence than payroll, since the checklist names W-2s and salary records. Where the business model truly runs on contractors, we show the invoices and payments, and we explain why that model is normal for the trade.
The regulation does not define it, and 9 FAM 402.9-6(E) repeats the phrase without examples. An enterprise that cannot generate enough income for the family, but that has a present or future capacity to make a significant economic contribution, "is not a marginal enterprise." That is as far as the published text goes.
In practice we read this route as useful for a business with real economic weight and low owner income: heavy reinvestment in the first years, a payroll that is large relative to the owner's draw, significant purchases from U.S. suppliers. It is a harder route to prove, because the term has no standard, and the officer has a lot of room. We would present it as support for the income case wherever we can, and not rely on it alone.
The evidence depends on whether the business is new or already running. Part V of the suggested checklist in 9 FAM 402.9-11(B) splits it that way. The manual says the list is a guide only.
| Existing business | New business |
|---|---|
| U.S. corporate tax returns | Financial projections for the next 5 years, supported by a thorough business plan |
| Latest audited financial statement or non-review statements | Payroll register and records of salaries paid, if any, with employee data and W-2s |
| Annual reports | Business income and corporate tax returns, with proof of registration and ownership |
| Payroll register, W-2 and W-4 forms | |
| Canceled checks for salaries, or the payroll account |
The strength of a file comes from the sources behind the numbers. 9 FAM 402.9-6(D)(d) says unverified and unaudited financial statements based exclusively on information supplied by the applicant normally are insufficient to establish the nature and status of an enterprise. A spreadsheet you built alone is exactly that. An accountant's review, signed contracts and third-party data change what the same figures are worth.
A five-year projection for a new E-2 business should show when the enterprise moves past a minimal living for this family, and why that is believable. The checklist calls for "financial projections for next 5 years, supported by a thorough business plan." The projection is the core of the marginality case for a startup, because no history exists yet.
A hockey-stick curve hurts more than a modest one. Revenue that doubles every year with no explanation tells the officer that the plan was written for the visa. A plan that grows at a defensible rate, and crosses the line in year three or four with a clear reason, reads better than one that crosses it in month eight for no stated reason.
The businesses most exposed are those where one person's labor is the whole product. A solo consultant, a single-truck operator or a one-person cleaning service may be real and profitable, and still look like a job the investor bought. 8 CFR 214.2(e)(2)(i) speaks of a marginal enterprise "solely for the purpose of earning a living," and this kind of business invites that reading unless the plan shows growth past the owner.
A solo consulting firm is not barred. 9 FAM 402.9-6(D)(c)(4) recognizes that a service business such as a consulting firm may be relatively low cost. The cost is not what hurts it. The plan has to explain how it gets past a single person's billable hours, through staff, contracts or products.
Truck and transport businesses have one more item. As of November 6, 2026, an alert on the USCIS E-2 page, citing Executive Order 14286 of April 28, 2025, says E-2 applications for jobs requiring operation of a commercial motor vehicle must be supported by evidence of English language proficiency. That concerns qualification, separately from marginality, but a post-Soviet founder planning a trucking company should see it early.
Passive income is a separate failure. 8 CFR 214.2(e)(13) requires a real, active and operating enterprise, and 9 FAM 402.9-6(C) excludes a paper organization or idle speculative investment. A business can avoid being marginal and still fail for not being active.
At renewal the projection becomes a promise that can be checked. An extension on Form I-129 goes to USCIS, which grants increments of up to 2 years under 8 CFR 214.2(e)(20), and the applicant must show that E terms and conditions were maintained. The same is true of a new visa at a consulate. The earlier five-year plan will sit next to the tax returns.
The regulation's word is "generally," which leaves room when the numbers run late for a reason you can document. It gives less room to a business with no payroll and no growth four years on, because the "future" capacity is then mostly in the past. If you are behind plan, gather the explanation and the corrective steps before the filing, not after a question arrives.
As of November 2026, USCIS policy under PA-2026-05 allows denial without a request for evidence when required initial evidence is missing, so an I-129 should arrive complete. Our E-2 visa page describes how we handle these filings, and our note on what E-2 counsel does covers the planning stage.
Our initial consultation is $200 for 30 minutes, paid by card through a link before the meeting, and it is always credited toward your fee. We hold it on Google Meet, by phone, or at our office at 11555 Heron Bay Blvd, Suite 277, Coral Springs, FL 33076. We take clients from other states and other countries, and that work runs on Google Meet.
For a marginality question, bring the business idea or the current financials, the family's size, and the hiring you actually expect. We tell you where the plan is thin, and which numbers an officer is likely to doubt.
Standard E-2 representation starts at $6,000. A complicated case is priced by agreement once we have seen it. USCIS filing fees and consular visa fees are not part of our fee. The full fee schedule is on our legal fees page.
We do not promise outcomes, and Florida Bar rules do not allow us to. To start, fill out the intake questionnaire at fitenkolaw.com/intake, call (305) 315-3425, or email fitenkolaw@gmail.com. Our second office at 600 Three Islands Blvd, Hallandale Beach, FL 33009 receives clients by prior appointment only.
No specific number. 8 CFR 214.2(e)(15) contains no employee count, as read on November 6, 2026. The rule asks whether the enterprise has the present or future capacity to generate more than a minimal living for you and your family, or to make a significant economic contribution. Payroll records are strong evidence under 9 FAM 402.9-11(B), so hiring helps, but no regulation requires it.
No dollar figure is published. Under 8 CFR 214.2(e)(15) the enterprise needs the capacity to generate more than enough income for a minimal living for the investor and family, and that capacity may be future if it is generally realizable within 5 years of starting normal business activity. The answer therefore depends on family size and the plan, and any exact threshold you hear is an opinion.
Yes, in principle, because 8 CFR 214.2(e)(15) requires no employees. The risk is that a one-person business reads as a marginal enterprise "solely for the purpose of earning a living" under 8 CFR 214.2(e)(2)(i). A solo owner has to show capacity through income well beyond a minimal living, or a credible plan to grow past one person's work within the 5-year window.
Not automatically. The rule looks at present or future capacity, so a first-year loss can fit a plan in which income is realizable within 5 years of starting normal business activity. It does mean the file must explain the loss and show the path forward with real figures. 9 FAM 402.9-6(D)(d) warns that unaudited statements based only on the applicant's information normally are insufficient.
Generally, yes. 8 CFR 214.2(e)(15) says the projected future capacity "should generally be realizable within 5 years" from the date you commence normal business activity. The word "generally" leaves some room, and it is not a promise. The USCIS E-2 page counts the period from the date E-2 classification begins, so we plan to the earlier date.
No. The requirement of full-time employment for not fewer than 10 qualifying workers comes from INA 203(b)(5), the EB-5 immigrant investor category. E-2 is a nonimmigrant category under INA 101(a)(15)(E)(ii), and neither 8 CFR 214.2(e) nor 9 FAM 402.9 sets any job number for it.
The first step is the intake questionnaire at fitenkolaw.com/intake. The consultation is $200 for 30 minutes, paid by card through a link before the meeting and always credited toward your fee. It runs on Google Meet, by phone, or at our Coral Springs office, in English or Russian. You can also call (305) 315-3425 or email fitenkolaw@gmail.com.
This article is informational only and is not legal advice. Treaty tables, State Department guidance, USCIS policy, forms and fees change; confirm current requirements with the Department of State and USCIS before acting. Reading this page does not create an attorney-client relationship.
Fitenko Law PLLC, 11555 Heron Bay Blvd, Suite 277, Coral Springs, FL 33076 (main office); 600 Three Islands Blvd, Hallandale Beach, FL 33009 (by appointment only). Phone: (305) 315-3425. Email: fitenkolaw@gmail.com