Does a software company need a physical office to qualify for E-2?

A fixed business address in the United States is a practical necessity, but it does not have to be a dedicated private office. A co-working space with a real street address and dedicated desk or private office option satisfies the requirement that the enterprise be operational at a real commercial location. Virtual offices with no physical workspace are more problematic because they undermine the showing that the investor is directing active business operations from the United States. The business address must be a place where business is actually conducted, not just a mail drop.

Can offshore developers count toward the E-2 staffing plan?

Offshore contractors and employees generally do not satisfy the U.S. job creation element that strengthens a marginality argument, because E-2 job creation credit attaches to U.S. workers under 9 FAM 402.9-6(D). However, a business model that manages offshore development teams is not disqualifying. The business plan should describe both the U.S. employment trajectory and the offshore arrangement separately, and make clear that the investor is directing U.S. business operations from within the United States, not simply serving as a conduit for offshore labor.

Can proprietary software or intellectual property count as the E-2 investment?

Intellectual property can be contributed to the E-2 entity as an investment, but it must be properly documented and valued for the contribution to be credited. The IP must be transferred or exclusively licensed to the U.S. entity, and its fair market value must be established through a credible, independent valuation. An unsupported assertion that a codebase is worth $500,000 without a professional appraisal or comparable market evidence will not satisfy the requirement that the investment be substantial. Cash and equipment invested alongside any IP contribution are the more reliable proof of committed capital.

What if the software business will not hire U.S. employees right away?

The absence of immediate U.S. employee hires is not automatically disqualifying, but it intensifies the marginality scrutiny. The business plan must show that the enterprise has the demonstrable capacity to generate income significantly beyond a marginal living. For a software company without early employees, the strongest evidence is signed client contracts, a recurring revenue model with identified customers, and financial projections that show a credible path to hiring within the first two years. An enterprise that projects three or more employees within 24 months is in a much stronger position than one that projects solo operation indefinitely.

How do SaaS revenue projections differ from service-company projections in an E-2 plan?

A SaaS projection should model the subscription lifecycle: the ramp-up period when the product is in development or early adoption, the growth inflection when customer acquisition accelerates, and the steady-state period when churn and growth reach equilibrium. The key metrics are monthly recurring revenue (MRR) growth, the assumed customer acquisition cost relative to projected marketing spend, and the assumed churn rate. A plan that projects 0% churn and 100% year-over-year MRR growth without explaining the basis for those assumptions reads as speculative. Ground each assumption in market data, comparable company benchmarks, or early customer evidence.

How does the develop-and-direct requirement apply if the investor is also the lead developer?

An investor who is also the primary developer is not automatically disqualified from the E-2 develop-and-direct requirement. What matters is whether the investor exercises genuine executive control over the enterprise as a whole: making hiring decisions, setting strategic direction, managing client relationships, and overseeing financial operations. An investor who also happens to write code is fine; an investor whose entire role is to execute technical tasks under the direction of others is describing an employee relationship rather than an investor-director one. The business plan should document the investor's executive functions explicitly and separately from their individual contributor technical work.

Business planning

E-2 Visa Business Plan for a Software Development Company

By Daniel AydınHead of LegalTech, Plansera AIUpdated October 7, 202610 min read

Software development businesses present a distinct set of challenges in E-2 adjudications. The investment is often modest relative to traditional brick-and-mortar enterprises, the assets are largely intangible, and the business model can appear passive or speculative to an officer unfamiliar with how software companies generate revenue. A well-constructed business plan addresses each of those concerns directly, grounding the enterprise in 9 FAM 402.9 and 8 CFR 214.2(e) requirements rather than pitching it as an investment opportunity.

This guide addresses what USCIS adjudicators and consular officers look for in an E-2 business plan for a software development company, a SaaS product business, a custom development firm, or a software consultancy. The coverage gaps that generate RFEs in technology-sector filings are distinct from those in retail or service businesses, and the financial projections that satisfy the marginality test in a software context require specific structuring to be credible.

Free tool: use-of-funds calculatorBreak your investment down by category to see the allocation — and the working-capital balance — an adjudicator looks for.

What Makes Software Development E-2 Cases Distinct

The E-2 bona fide enterprise requirement under 9 FAM 402.9-6(A) demands a real, operating commercial enterprise producing goods or services for profit. A software company satisfies this standard as long as it is not structured as a passive vehicle. The distinction officers draw is between a company that actively develops, delivers, and supports software products or services for paying clients versus one that holds an intellectual property asset without conducting ongoing commercial activity.

Custom software development firms that contract with clients, SaaS businesses that sell subscriptions to a deployed product, and software agencies that build and maintain platforms all qualify as active enterprises. A holding company that owns a software license and collects royalties without employing developers or providing ongoing services risks classification as a passive investment vehicle under 9 FAM 402.9-6(B)(2), which disqualifies the investment regardless of its dollar amount.

The officer will also scrutinize the investor's develop-and-direct role under 9 FAM 402.9-7. For a solo developer who is also the CEO, the role is self-evident. For an investor who will manage a team of offshore developers or remote contractors, the business plan must articulate the management structure clearly: who reports to the investor, how work is assigned and reviewed, and how the investor exercises operational control day-to-day.

Structuring the Investment for E-2 Qualification

The substantial investment requirement for software businesses is evaluated under the proportionality test at 9 FAM 402.9-6(C): the invested amount must be substantial relative to the total cost of establishing or acquiring the enterprise, not merely relative to a fixed dollar threshold. For a software development company with low capital requirements, this means the investor must deploy a genuinely significant portion of the startup capital before or at the time of the visa application.

Qualifying investment categories for a software development company include: development tool licenses and software subscriptions (cloud infrastructure, IDEs, project management platforms), hardware, office space or co-working membership, professional services (formation, trademark registration, accounting), initial payroll for U.S. employees, and seed working capital in a dedicated business account. Funds held in a personal account earmarked for the business do not constitute invested capital under 9 FAM 402.9-6(B)(1) -- the capital must be irrevocably committed and at risk, demonstrated through executed contracts, paid invoices, a signed lease, and formation expenses already incurred. A common mistake is presenting an investment too small relative to the enterprise described: if the plan projects seven-figure revenue from a SaaS product but the total U.S. investment is $18,000 in a laptop and a domain name, the proportionality test fails and the marginality concern intensifies.

Cloud infrastructure commitments (AWS, Azure, or GCP reserved instances or prepaid contracts)
Software development tool licenses and team collaboration platform subscriptions
Office, co-working, or dedicated development space lease or deposit
Initial U.S. employee salary and onboarding costs
Legal formation costs: entity formation, operating agreement drafting, trademark registration
Website development, branding, and initial marketing spend
Working capital in a dedicated business bank account, with wire confirmations

The Marginality Test: Showing a Non-Marginal Enterprise

The marginality requirement at 9 FAM 402.9-6(D) is often the central challenge for early-stage software businesses. The enterprise must have the present capacity or the demonstrable near-term capacity to generate significantly more income than merely a living for the investor and family. For a software business that has not yet launched, this capacity is demonstrated primarily through the financial projections, the product pipeline, and the existing client or contract base.

An officer reviewing a software development company plan will look for: signed client contracts or letters of intent from prospective clients, a recurring revenue model that demonstrates scalability beyond what a single developer could generate, and staffing projections showing U.S. job creation within the plan period. A solo freelancer who intends to bill 40 hours per week at market rates for their personal technical services is at high risk of a marginality denial; the plan reads as self-employment rather than a commercial enterprise. To satisfy the marginality test, the plan should project at least one full-time U.S. employee hire within 12 to 24 months, or document an existing payroll that already exceeds what the investor alone would need to support. For product companies, the scalability of the SaaS model -- revenue can grow without a proportional increase in labor once the product is built -- is itself the strongest argument, and the financial projections should reflect that progression explicitly.

Describing the Business Model with Specificity

The business description section of a software company plan must answer the questions an officer unfamiliar with software business models will have. What does the company build or develop? Who are the customers? How does the company charge them? Is revenue from one-time project delivery, recurring subscriptions, usage-based fees, or some combination? For a custom development company, the description should name the target client sectors, the typical engagement size and duration, the technology stack, and why clients would choose this firm over alternatives. For a SaaS business, the description should explain the problem the product solves, the target user, the pricing model, and the current stage of development.

Officers sometimes question whether a software business that relies primarily on offshore developers is genuinely operating in the United States. The business plan should explain the U.S.-based functions clearly: client relationship management, business development, quality assurance oversight, product management, and customer support. The investor's physical presence in the United States as the directing executive is what makes the E-2 classification appropriate.

Staffing Plan and the Develop-and-Direct Requirement

Under 9 FAM 402.9-7, the E-2 investor must be coming to the United States to develop and direct the enterprise. For a software business, the staffing plan must show both the investor's own role and the business's employment structure, including any U.S. employees, contractors, or staff expected to be hired as the enterprise grows.

The investor's position should be described in managerial and operational terms: CEO, CTO, or equivalent, with specific responsibilities listed. Programming and individual contributor work the investor personally performs is not disqualifying, but the filing is stronger when the plan documents supervisory authority, client relationship responsibility, and strategic decision-making in addition to any technical contribution. An investor who plans to spend 100% of their time writing code and zero time managing, marketing, or directing business operations is more vulnerable to an RFE on the develop-and-direct element. Identify any existing U.S. employees by title and indicate when the first additional hire is expected; a realistic, phased hiring plan tied to revenue milestones is more credible than a projection of many hires in Year 1 without the client base to support it.

Year 0-1: Investor as CEO/CTO; one part-time project coordinator or sales support role
Year 1-2: First full-time U.S. developer or operations hire as client base expands
Year 2-3: Account manager or additional developer as recurring revenue reaches break-even threshold
Year 3-5: Team of 3-6 U.S. employees across development, support, and business development
Offshore contractors: described separately, with distinction between contractor and employee roles

Financial Projections for a Software Development Company

The financial model for a software business has a different shape than a restaurant or retail store, and the projections must reflect that. For a custom development firm, revenue is driven by billable hours or project contracts; for a SaaS company, revenue is subscription-based with a ramp-up period before meaningful recurring revenue accumulates. The projections should match the actual business model rather than applying a generic revenue-curve template.

A five-year income statement should show Year 1 revenue at a realistic level given the starting client base or product launch timeline, with growth rates grounded in the market analysis section. Cost of revenue for a development company typically includes developer compensation, software subscriptions, and infrastructure. Gross margin for software businesses is typically higher than for product or retail businesses, and the plan should reflect that; an adjudicator who sees a 15% gross margin on a software development projection will question the model.

The break-even analysis answers the implicit marginality question: at what revenue level does the business generate enough to sustain itself and employ others, and when will it reach that level? For a SaaS product, break-even should reflect both the pre-revenue development phase and the post-launch growth phase. Cash flow projections must account for receivables timing -- project-based firms often wait 30 to 90 days for client payments -- particularly in Year 1 when the business is building its client base.

Market Analysis and Competitive Positioning

The market analysis section should define the serviceable market with specificity -- not the global software development market, but the specific industry verticals, client sizes, and geographic markets this company will initially serve. An officer who sees a market size citation for the entire U.S. software industry will not find it meaningful; an officer who sees that the company will serve mid-size logistics companies in the southeastern United States requiring custom warehouse management integrations has a concrete frame of reference.

Competitive analysis should identify the main competitors in the chosen niche -- other development agencies, offshore alternatives, or software platforms that solve the same problem -- and articulate what differentiates this company from those alternatives. Adjudicators are not evaluating the business strategy; they are confirming that the business is real, serves an identifiable market, and has a rational basis for expecting the revenue in the projections. If the company has already signed clients or letters of intent, include them in the plan and reference them in the financial projections, because a named contract transforms projected revenue into a partly-confirmed pipeline.

Common Mistakes in Software Company E-2 Plans

The most frequent deficiency is presenting a solo-practitioner structure that reads as self-employment. An investor who will personally provide all development services to clients with no employees and no plan to hire is describing a freelance arrangement, not an enterprise. The fix is to document plans for staffing growth tied to revenue milestones, and to emphasize the business development, client management, and supervisory functions the investor will perform in addition to any individual technical work.

A second mistake is understating the investment by confusing intellectual property value with invested capital. An investor who brings a proprietary software codebase to the U.S. entity may argue the code has market value, but intangible asset contributions require independent valuation and documentation of irrevocability that most plans do not provide. Cash, equipment, and contract commitments are more reliable proof of committed capital. Plans for SaaS companies should also address the pre-launch development phase: what has been built, what remains, the expected launch timeline, and the customer evidence that supports post-launch revenue projections. Finally, plans that rely entirely on offshore development with no U.S.-based operational function create a develop-and-direct problem that undermines the application regardless of investment amount.

Frequently asked

Does a software company need a physical office to qualify for E-2?: A fixed business address in the United States is a practical necessity, but it does not have to be a dedicated private office. A co-working space with a real street address and dedicated desk or private office option satisfies the requirement that the enterprise be operational at a real commercial location. Virtual offices with no physical workspace are more problematic because they undermine the showing that the investor is directing active business operations from the United States. The business address must be a place where business is actually conducted, not just a mail drop.
Can offshore developers count toward the E-2 staffing plan?: Offshore contractors and employees generally do not satisfy the U.S. job creation element that strengthens a marginality argument, because E-2 job creation credit attaches to U.S. workers under 9 FAM 402.9-6(D). However, a business model that manages offshore development teams is not disqualifying. The business plan should describe both the U.S. employment trajectory and the offshore arrangement separately, and make clear that the investor is directing U.S. business operations from within the United States, not simply serving as a conduit for offshore labor.
Can proprietary software or intellectual property count as the E-2 investment?: Intellectual property can be contributed to the E-2 entity as an investment, but it must be properly documented and valued for the contribution to be credited. The IP must be transferred or exclusively licensed to the U.S. entity, and its fair market value must be established through a credible, independent valuation. An unsupported assertion that a codebase is worth $500,000 without a professional appraisal or comparable market evidence will not satisfy the requirement that the investment be substantial. Cash and equipment invested alongside any IP contribution are the more reliable proof of committed capital.
What if the software business will not hire U.S. employees right away?: The absence of immediate U.S. employee hires is not automatically disqualifying, but it intensifies the marginality scrutiny. The business plan must show that the enterprise has the demonstrable capacity to generate income significantly beyond a marginal living. For a software company without early employees, the strongest evidence is signed client contracts, a recurring revenue model with identified customers, and financial projections that show a credible path to hiring within the first two years. An enterprise that projects three or more employees within 24 months is in a much stronger position than one that projects solo operation indefinitely.
How do SaaS revenue projections differ from service-company projections in an E-2 plan?: A SaaS projection should model the subscription lifecycle: the ramp-up period when the product is in development or early adoption, the growth inflection when customer acquisition accelerates, and the steady-state period when churn and growth reach equilibrium. The key metrics are monthly recurring revenue (MRR) growth, the assumed customer acquisition cost relative to projected marketing spend, and the assumed churn rate. A plan that projects 0% churn and 100% year-over-year MRR growth without explaining the basis for those assumptions reads as speculative. Ground each assumption in market data, comparable company benchmarks, or early customer evidence.
How does the develop-and-direct requirement apply if the investor is also the lead developer?: An investor who is also the primary developer is not automatically disqualified from the E-2 develop-and-direct requirement. What matters is whether the investor exercises genuine executive control over the enterprise as a whole: making hiring decisions, setting strategic direction, managing client relationships, and overseeing financial operations. An investor who also happens to write code is fine; an investor whose entire role is to execute technical tasks under the direction of others is describing an employee relationship rather than an investor-director one. The business plan should document the investor's executive functions explicitly and separately from their individual contributor technical work.

Educational information, not legal advice. This guide is for general educational purposes only and is not legal advice. Plansera AI is not a law firm and does not provide legal representation. E-2 eligibility is fact-specific and the rules change — verify against current primary sources (9 FAM 402.9, 8 CFR 214.2(e), and USCIS) and consult a licensed U.S. immigration attorney before relying on any of it or filing.

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