E-2 Visa Staffing Plan: What USCIS Requires and Why It Matters

The E-2 regulations at 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 investor and their family. Adjudicators use the staffing plan as one of the primary tools to assess whether the business clears this threshold. An enterprise that projects no hires beyond the investor over a five-year period looks marginal almost by definition.

The staffing plan also feeds directly into the develop-and-direct analysis. Under 9 FAM 402.9-6(D), the investor must have operational control of the enterprise. If the staffing plan shows the investor performing only hands-on labor with no management responsibilities, that undermines the develop-and-direct argument. The staffing narrative should distinguish between the investor's executive role and the roles filled by employees.

Officers also use the staffing section to evaluate whether the business can realistically sustain the investor's income over time. A plan showing five full-time employees by year three, with corresponding payroll costs built into the financial projections, is far more persuasive than a plan with vague references to hiring additional staff as the business grows.

Under USCIS policy, qualifying employment for E-2 purposes refers to jobs held by U.S. citizens, lawful permanent residents, or other individuals who are authorized to work permanently in the United States. The investor and their E-2 dependents do not count toward qualifying employment. This distinction matters: a business with only the investor and their spouse working there does not satisfy the employment creation element.

There is no regulatory minimum number of employees for an E-2 visa. USCIS does not require five employees, ten employees, or any specific headcount. What the regulations require is that the enterprise not be marginal. In practice, a business projecting two to three full-time equivalent U.S. worker positions within three years, with credible revenue projections to support the payroll, will typically satisfy the non-marginality test for many small business applications.

Part-time positions can count, but each part-time position should be expressed as a full-time equivalent in the staffing plan. For example, two part-time employees working 20 hours per week each would equal one full-time equivalent. This framing helps adjudicators assess the actual economic contribution of the workforce.

• U.S. citizens count toward qualifying employment
• Lawful permanent residents count toward qualifying employment
• Workers with permanent work authorization (e.g., TN status for ongoing employment does not count; a green card holder does)
• The E-2 investor does not count
• E-2 dependent family members do not count
• Independent contractors may be considered but are scrutinized more carefully than direct employees

A well-structured E-2 staffing plan addresses three time horizons: opening day, year one, and years two through three. Opening-day staffing should reflect realistic startup conditions. Most small E-2 enterprises begin with the investor and one or two employees. Projecting a fully built-out team of fifteen staff on day one for a small retail or service business will not be credible and may draw questions about whether the financial projections are realistic.

Year one staffing should be tied to the revenue ramp-up described in the financial projections. If the business plan shows revenue growing from $20,000 per month in month one to $45,000 per month by month nine, the staffing plan should reflect that trajectory: perhaps one additional part-time hire when revenue crosses $30,000 and a second full-time hire when it reaches $40,000 per month.

Year two and three staffing should be tied to the growth strategy. If the business plans to expand to a second location, the staffing plan should reflect the additional headcount that expansion requires. Each position description should include the job title, approximate salary or wage, full-time or part-time classification, and a brief description of responsibilities.

• Opening day: investor plus one or two qualifying employees (realistic for most small businesses)
• Year one: phased hiring tied to revenue milestones with specific trigger points
• Year two to three: growth-phase staffing linked to expansion plans in the business strategy section
• Each position: title, full-time or part-time status, approximate compensation, primary responsibilities
• Distinguish the investor's management role from employee operational roles

The staffing plan and the financial projections must be consistent with each other. If the staffing plan adds two full-time employees in year two at $45,000 each, the income statement for year two must show a payroll line item that includes those salaries, plus the associated payroll taxes and any benefits costs. A staffing plan that projects five employees by year three but shows payroll costs in the financial model that could only support two employees is a red flag that adjudicators will catch.

Payroll is typically the largest operating expense for service-based E-2 enterprises and a significant line item for retail and restaurant businesses. The financial model should break payroll into at least two categories: the investor's owner draw or salary and wages paid to qualifying U.S. workers. This separation makes the non-marginality argument visible in the numbers.

Some applicants omit payroll taxes and benefits from the expense projections, which artificially inflates net income. A complete model includes employer payroll taxes (FICA, FUTA, SUTA), workers' compensation insurance, and any health insurance or other benefits offered. These additional labor costs typically add 15 to 25 percent on top of gross wages for each qualifying employee.

The right staffing plan structure varies by industry. A service-based business such as a marketing agency or an IT consulting firm may operate with a smaller core team, but the staffing plan must still demonstrate non-marginality. If the investor is the primary service provider, the plan should explain how they will transition from doing the work themselves to managing a team as the client base grows.

For restaurant or food service E-2 applications, staffing plans are typically detailed and immediate. A sit-down restaurant typically opens with a full front-of-house and back-of-house team on day one. The staffing section should list every position: head chef, sous chef, servers, hosts, dishwashers, and any part-time positions. Each position should be listed with the expected wage, hours per week, and projected start date.

A technology startup E-2 application presents a different challenge. If the investor is a solo founder building software initially without employees, the staffing plan must articulate a credible path to hiring. It should tie the first hire to a specific milestone such as a product launch, a first paying customer, or a revenue threshold, and include the projected timing based on the financial model.

The business plan narrative is the primary vehicle for presenting the staffing plan, but supporting documentation strengthens the argument. If the investor has already hired employees before the application is filed, include payroll records, offer letters, or Form I-9 records to demonstrate actual employment has begun. This is particularly useful for change-of-status applications filed from within the United States.

For a business that is not yet operational, job postings, signed letters of intent from prospective hires, or letters from a staffing agency describing the local labor market for the relevant roles can provide corroborating evidence. These are not strictly required, but they show that the staffing plan is grounded in real-world hiring conditions rather than theoretical projections.

The organizational chart is a simple but effective exhibit. A visual org chart showing the investor at the top, reporting employee positions below, and planned future positions distinguished by a different formatting style (such as dashed boxes) gives adjudicators an immediate picture of how the enterprise will be structured and where growth hiring will occur.

• Payroll records or offer letters if employees are already hired
• Organizational chart showing investor's management position and employee reporting structure
• Job descriptions for each role in the staffing plan
• Wage data from Bureau of Labor Statistics or comparable local surveys supporting the projected compensation levels
• Signed letters of intent from prospective hires (if available)
• Correspondence with a staffing agency or recruiter (for businesses planning near-term hires)

The most frequent staffing-related Request for Evidence arises when the business plan projects revenue growth but the staffing plan does not reflect the additional labor required to deliver that growth. If year three revenue is $800,000 but the staffing plan shows only the investor and one part-time employee, an adjudicator will question whether those projections are achievable with that workforce.

A second common problem is listing the investor's salary as the primary measure of the enterprise's economic contribution. The non-marginality test is not satisfied by showing that the investor earns a good income. The enterprise must show benefit to the U.S. economy beyond supporting the investor's household, which in practice means qualifying employment for U.S. workers and economic activity in the local market.

Vague job titles without descriptions also draw scrutiny. A staffing plan that lists four positions simply called "employee" without specifying the role, compensation, or responsibilities gives the adjudicator nothing to evaluate. Every position listed should have a clear title, a defined wage or salary, and a description of the work performed.