E-2, L-1 and EB-5 Job Creation Requirements

A business that merely provides a minimal living may be marginal.

E-2 does not contain a fixed statutory employee count. Instead, the enterprise cannot be marginal, meaning the analysis looks beyond whether the business merely supports a minimal living and considers its present or future economic capacity. Payroll and hiring plans can therefore be important evidence even though no specific number is mandated. The appropriate staffing level depends on the nature, cost, stage, and operating plan of the enterprise rather than a universal E-2 minimum.

USCIS evaluates organizational structure, duties, payroll, contractors, and reasonable needs.

L-1A also has no fixed numerical employee requirement, but staffing is often central to proving that the beneficiary will function primarily as a manager or executive. USCIS evaluates the proposed duties in the context of the organizational structure, subordinate positions, contractors, professional functions, and the reasonable needs of the business. A small company is not automatically disqualified, but the evidence must explain who performs day to day operational tasks so that the beneficiary's claimed higher level role is credible.

The U.S. operation must develop within one year to support a qualifying role.

A new office L-1A petition receives a limited initial period because the US operation is still developing. The petitioner must show that the intended operation will be able to support a managerial or executive position within one year, together with evidence concerning the nature of the office, organizational structure, financial goals, US investment, and foreign organization. Hiring and delegation plans therefore matter from the beginning, even though the business may not have its mature staffing structure on the filing date.

The investment generally must create at least 10 full-time jobs for qualifying workers.

EB-5 uses a numeric job creation standard that differs from E-2 and L-1. The qualifying investment generally must create at least 10 full time positions for qualifying workers for each investor. In a direct standalone case, the record generally focuses on qualifying direct employment by the new commercial enterprise. If the jobs have not yet been created, the business plan must credibly support the projected hiring rather than merely state a target number without operational detail.

Current law permits qualifying direct and indirect job creation subject to statutory limits.

Regional center EB-5 permits a broader job counting methodology than a direct standalone investment. Under the current statutory framework, qualifying indirect jobs may be counted subject to percentage limits, and economic methodologies can be used when properly supported by project inputs. Construction activity can also have special counting limitations depending on duration. The project record should therefore identify which jobs are direct or indirect, the methodology used, and the expenditures or other inputs that will later substantiate the job calculation.

The legal test differs across E-2, L-1, and EB-5.

Job planning should be tailored to the immigration category instead of copying one visa's rule into another. E-2 planning should address nonmarginality and credible economic capacity; L-1A planning should show an organization that supports primarily managerial or executive work; EB-5 planning should satisfy the statutory job count and applicable job counting methodology. A single business can sometimes support more than one immigration strategy, but the staffing chart, payroll assumptions, hiring timeline, and business plan should be tested separately under each legal standard.