E-2 Cases: Where They Fail, and What Counsel Actually Does

Nationality decides eligibility, the business plan decides the case, and marginality is the refusal nobody plans for.

Reviewed by Ekaterina Fitenko, Esq. — Florida Bar #1064536. With 20+ years of experience in the legal field, she represents Russian- and Ukrainian-speaking clients in employment and investor visa cases, in English and Russian.

The Question That Comes First

The E-2 is available only to nationals of countries that maintain the relevant treaty with the United States. That single fact resolves a large share of enquiries in the first minute, and no amount of investment substitutes for it.

Where the applicant's nationality does not qualify, the useful conversation is about a different route entirely rather than about how to structure the investment — and that conversation is worth having before money moves, not after.

"Substantial" Is a Ratio, Not a Sum

There is no statutory minimum. Substantiality is assessed proportionally — against the total cost of purchasing an established business or of establishing a new one. A modest amount can be substantial for a service business and plainly insufficient for a capital-intensive one.

The practical consequence is that the number you need cannot be quoted without knowing the enterprise, and any figure offered before that is marketing rather than advice.

Marginality: the Refusal Nobody Plans For

The enterprise must not be marginal — it must do more than provide a minimal living for the investor and family. This is where otherwise solid applications are refused, because applicants prepare the money and neglect the projection that shows the business generating more than subsistence, or creating jobs, within a reasonable period.

The answer is a business plan built as evidence rather than as a document to attach: assumptions sourced, costs itemised, projections tied to something verifiable.

Funds at Risk, and Where They Came From

The investment must be irrevocably committed and at risk. Money in a bank account owned by the applicant is not at risk, and a purchase that can be unwound is not irrevocable. Escrow arrangements conditioned on visa approval need careful structuring to satisfy this while protecting the applicant.

Source of funds is traced document by document — sale of property, business income, gift or loan — and gaps in the chain are treated as unexplained rather than innocent. Assembling this record is slow, which is why it starts early.

When Counsel Changes the Outcome

Before the purchase. The entity structure, the ownership percentages, what the lease says, how the funds are transferred and what the plan projects are all decisions that are cheap to make correctly and expensive to unwind. By the time a refusal arrives, most of them are fixed.

Frequently Asked Questions

Who can apply for an E-2 visa?

Only a national of a country that maintains the relevant treaty with the United States. Without that nationality the route is closed regardless of the amount invested or the quality of the business.

How much money do I need for an E-2?

There is no fixed minimum. Substantiality is measured proportionally against the cost of buying or establishing the particular enterprise, so the figure depends on the business rather than on a published threshold.

What does "marginal enterprise" mean?

A business that does no more than provide a minimal living for the investor and family. Applications are refused on this ground when the plan does not show capacity to generate more than subsistence or to create jobs within a reasonable period.

Can I keep the money in escrow until the visa is approved?

Escrow conditioned on approval needs careful structuring, because the investment must be irrevocably committed and at risk. Funds simply held in the applicant's own account do not meet the requirement.

At what point should I involve a lawyer?

Before the purchase. Entity structure, ownership, the lease, the transfer of funds and the projections are decided at that stage, and they are the elements that a refusal later turns on.

How much is the initial consultation?

$200 for 30 minutes, in English or Russian. Call (305) 315-3425 or email fitenkolaw@gmail.com to schedule, or start with the intake form.

This article is informational only and is not legal advice. Immigration rules, fees and processing times change; confirm current requirements with the agency or with counsel before relying on anything here.