IN THIS GUIDE · Correcting a staffing plan that confuses contractors with employees
Start with the E-2 eligibility and application overview
Describe the real working arrangement
Identify which functions are carried out internally and which are purchased from outside providers. Employment or contractor classification can depend on facts and applicable law, so obtain appropriate employment and tax advice. An immigration narrative should not relabel people merely to make the staffing table look stronger than the commercial arrangements support.
Separate E-2 capacity from an EB-5 job formula
E-2 does not impose the universal ten-job requirement associated with EB-5. Its non-marginality assessment considers the enterprise’s applicable income capacity or significant economic contribution. Explain the staffing model’s actual role in that assessment. Contractor invoices alone do not settle it, and a particular employee count is not a guaranteed shortcut to approval. Hypothetical example: A conservator buying a vintage-map restoration studio would retain an independent bookkeeper and contract out framing. The useful question is whether agreements, cash projections, customer demand, and retained authority portray an operating business that can succeed. Service terms, equipment invoices, lease papers, insurance, and client orders each establish a separate fact. Reclassifying a provider as an employee after the fact creates a credibility issue rather than a stronger E-2 account.
Show the investor’s direction in the chosen model
Outsourcing bookkeeping, fulfillment or other tasks does not by itself make the investor passive. Describe the investor’s authority over the business and the decisions retained. If external providers control the essential commercial activity, examine whether the proposed investor genuinely develops and directs the enterprise rather than simply receiving a return.
Reconcile the costs and commitments
Compare the forecast with actual proposed contracts, wages, service fees and other applicable obligations. Confirm lawful funding and substantial committed capital relative to the enterprise. A contractor model can have different cash timing from payroll, so explain those differences accurately. Treaty nationality and qualifying ownership remain part of the assessment regardless of how labor is arranged.
Show substantial, at-risk capital in a distressed purchase
Distribution agreements often arrive with escrow terms, refundable deposits, minimum purchase commitments and revocation clauses. E-2 is available to nationals of treaty countries, which includes Canadian citizens, who have invested or are actively investing a substantial amount in a real operating U.S. enterprise that they will develop and direct. A marginal enterprise, meaning one that lacks the present or future capacity to generate more than a minimal living for the investor and family, does not qualify. The enterprise has to be a real and active commercial undertaking producing goods or services for profit, not an idle holding of land or a paper company waiting for a decision. Decide whether a proposed loan is secured by the enterprise assets and whether repayment would leave the investor’s own capital exposed.
Sources reviewed 2026-09-07. This guide covers a preparation focus; it is not an individual eligibility assessment.