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The Messersmith Law Firm, P.A. U.S. Investor and Business Immigration Law

E-2 Digital Enterprise

E-2 Visa for an Online or Remote Business

How ecommerce, software, digital agencies, online services, and remote businesses establish real operations, substantial investment, physical presence, marginality, and investor control.

Legal guide Reviewed by Peter Messersmith Reviewed September 12, 2026 Primary sources linked below
Physical office Not universally required
Online activity Must still be a real commercial enterprise
Evidence Digital operations should be objectively documented

What the governing framework requires

An online business can qualify for E-2 if it is a genuine commercial enterprise and satisfies all ordinary treaty investor requirements. The current FAM states that physical office space is not necessarily required. A digital business must nevertheless prove real commercial operations, committed investment, substantiality, more than marginal economic capacity, and the investor's ability to develop and direct it.

There is no separate rule barring online enterprises

E-2 law focuses on whether the enterprise is real, active, commercial, substantial, more than marginal, and directed by the investor.

A business does not cease to be commercial merely because customer acquisition, sales, service delivery, or operations occur principally online.

The current FAM says a physical office is not necessarily required

9 FAM 402.9-4(D) expressly states that an E applicant does not necessarily need physical office space.

The absence of traditional premises should still make sense for the business model.

A software company, online agency, or ecommerce enterprise will naturally have different infrastructure from a restaurant or manufacturing company.

Digital evidence should establish genuine business operations

Online businesses should document the systems through which they actually operate.

Relevant evidence can include websites, ecommerce stores, payment processing, customer contracts, software subscriptions, advertising accounts, logistics, fulfillment, vendors, platform records, intellectual property, and bank activity.

Digital companies can have low infrastructure cost but still must satisfy substantiality

A digital business may require less physical equipment than another enterprise.

The proportionality test still applies. A lower total business cost generally requires a higher proportion of the actual enterprise cost to be committed.

Intangible property can also constitute a capital asset when its value can reasonably be determined under the FAM.

An online company still must be more than marginal

Low overhead does not eliminate the marginality requirement.

Customer growth, recurring revenue, employees, contractors, marketing, intellectual property, platform expansion, and financial projections can help demonstrate economic capacity.

The filing should make an intangible business tangible to the adjudicator

  • Website and platform evidence
  • Customer and subscriber records
  • Merchant processing
  • Advertising accounts
  • Software subscriptions
  • Digital contracts
  • Vendor and fulfillment records
  • Intellectual property
  • Bank records
  • Business plan

Frequently asked questions

Can an online business qualify for E-2?

Yes, potentially. It must satisfy the same treaty investor requirements as another real commercial enterprise.

Does an online E-2 business need an office?

Not universally. The current FAM expressly states that physical office space is not necessarily required.

Can an ecommerce store qualify?

Potentially, if it is a real commercial enterprise and satisfies investment, substantiality, marginality, control, and the other E-2 requirements.

Can software or intellectual property count toward investment?

Potentially. The FAM recognizes intangible property as a capital asset where its value can reasonably be determined.

How does an online company prove it is real?

Web operations, customers, payment processing, contracts, advertising, vendors, software, bank activity, and other objective records can establish commercial reality.

Does low overhead hurt an online E-2 case?

Not automatically. Low business cost affects substantiality through proportionality and does not eliminate marginality or other requirements.

Primary authorities and official guidance

This guide was reviewed against the following government sources. Agency pages and regulations can change; confirm current editions and filing instructions before acting.

  1. 9 FAM 402.9 — Treaty Traders, Investors, and E Visas 9 FAM 402.9-4(D) addresses physical office space and 402.9-6(C) requires a real and active commercial enterprise.
  2. 22 C.F.R. § 41.51 — Treaty Investor Classification Department of State regulation governing E-2 visa classification.
  3. 8 C.F.R. § 214.2(e) — Treaty Traders and Investors Department of Homeland Security regulation governing E status in the United States.
  4. U.S. Department of State — Treaty Investor Visas Official Department of State overview of E-2 eligibility and visa processing.
Editorial note: This page provides general legal information, not a prediction of outcome or legal advice for a particular matter. Legal content reviewed by Peter Messersmith , Senior Immigration Attorney, The Messersmith Law Firm, P.A..

Case-specific review

Document the digital enterprise as carefully as a physical business

A review can identify how operating systems, customers, investment, intellectual property, projections, and control should be presented.

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