E-2 Visa Staffing Plan: What to Include in Your Business Plan

The E-2 visa regulations under 8 CFR 214.2(e)(15) define a marginal enterprise as one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and family. The staffing plan is the primary tool for defeating this finding. When an enterprise employs U.S. workers, it demonstrates economic contribution beyond the investor's own livelihood.

This does not mean you need to commit to hiring twenty people before you open your doors. Officers understand that startups hire progressively. What they expect is a realistic, phased hiring plan that shows thoughtful planning and genuine job creation over the first two to three years of operation. A plan that says only "we will hire as needed" without specifics is almost always flagged.

A staffing plan submitted with an E-2 business plan should include several specific elements for each position. First, the job title and a brief description of responsibilities. Second, whether the role is full-time or part-time, and the number of hours per week. Third, the wage or salary, stated as an hourly rate or annual figure. Fourth, the anticipated hire date or the phase of operations during which the role will be filled. Fifth, whether the position is currently filled, open, or projected.

For a pre-opening business, all positions will be projected. For an existing business applying for renewal or amendment, the plan should distinguish between current employees and planned additions. In either case, the officer wants to see that the investor has modeled the actual labor needs of the business, not simply listed aspirational positions to pad the headcount.

• Job title and role description for each position
• Full-time or part-time status and weekly hours
• Wage rate or annual salary per position
• Hire date or operational phase when the role will be filled
• Distinction between current employees and future hires

The staffing plan cannot live in isolation from the financial projections. Officers routinely cross-check the two sections. If your income statement shows payroll expense as a single aggregate figure but your staffing plan lists eight employees, the officer will expect those to reconcile. If the payroll line in Year 1 is $120,000 but the staffing plan shows three full-time employees at $18 per hour, the math does not add up and it raises questions about the reliability of the entire financial model.

This means the staffing plan and the payroll line items in your financial projections need to be built together, not separately. Each employee position in the staffing plan should correspond to a specific payroll cost in the income statement. Total projected wages should account for employer-side payroll taxes (typically 7.65 percent for FICA) and any benefits if applicable. This level of integration shows the officer that the investor has genuinely modeled the cost of running the business, not assembled a document to satisfy a checklist.

Most E-2 businesses cannot afford to hire at full capacity on day one. Officers understand this and do not require it. What they do require is a clear, reasoned explanation of when each hiring phase will occur and what triggers it. The most defensible approach ties hiring to revenue milestones: once monthly revenue reaches a specific threshold, the business adds a position to handle the increased volume.

A typical phased staffing plan for a service-based business might look like this: in months one through three, the investor operates the business with one part-time assistant. In months four through six, as client volume grows, a second part-time employee is added. By end of year one, the investor projects two full-time employees. In year two, the business adds a supervisor role. This kind of narrative, tied to the revenue projections in the financial section, is far more credible than a table that simply shows "Year 1: 3 employees, Year 2: 5 employees" with no explanation.

Some E-2 business models do not generate significant employment. Home-based service businesses, consulting firms, and technology businesses run by a single investor often project only one or two employees. For these cases, the staffing plan alone is not sufficient to defeat a marginality finding. The business plan must instead demonstrate that the enterprise generates substantially more revenue than the investor needs to live on.

Under 9 FAM 402.9-4(B)(5)(b), an enterprise that does not yet employ others may still avoid a marginality finding if it has a present or future capacity to expand beyond marginal. For a low-headcount business, this means the financial projections must show growth. Revenue in year three should be substantially higher than year one, and the plan should explain the specific path to that growth, whether through expanded service offerings, geographic expansion, or a larger client base.

Officers are skeptical of consulting or coaching businesses that project flat revenue throughout a five-year period. A credible low-headcount E-2 case pairs modest staffing with aggressive but realistic revenue growth, supported by contracts, letters of intent, or market research that justifies the projections.

The investor's position must also appear in the staffing plan, clearly labeled as Owner or General Manager, with a description of their responsibilities. This serves two purposes. First, it confirms compliance with 8 CFR 214.2(e)(17)(i), which requires the investor to develop and direct the enterprise. Second, it confirms that the investor's compensation, if any, is accounted for in the financial model.

One area that generates RFEs is owner compensation. If the investor plans to draw a salary or owner's draw from the business, this should be explicitly shown in the staffing plan and reflected in the income statement. Unexplained revenue that disappears without any owner compensation creates questions. An owner salary that is set unrealistically low raises marginality concerns. The staffing plan should reflect a realistic, documented owner compensation figure based on the market rate for the role the investor is filling.

The most common staffing plan deficiencies that lead to requests for evidence include: vague language such as "we plan to hire employees as needed"; position titles listed without role descriptions; wage figures that are below local minimum wage or inconsistent with the Bureau of Labor Statistics Occupational Employment and Wage Statistics data for that region; and a disconnect between the staffing plan and the payroll figures in the income statement.

Another frequent issue is the absence of a timeline. A staffing plan that lists positions without dates or phases provides no information about when job creation will actually occur. Officers are looking for commitment, not aspiration. A plan that projects five positions by year three but provides no milestone for when each will be added is evaluated as speculative.

• Avoid vague language: specify positions, wages, and timelines
• Use BLS Occupational Employment and Wage Statistics to justify wage figures
• Reconcile total payroll in the staffing plan with the payroll line in the income statement
• Include hire dates or revenue milestones that trigger each hiring phase
• Show the investor's own role and compensation explicitly