For the tenth year running, voters in the EB-5 Investors Magazine poll of top industry professionals selected Pinnacle Plan Writing among the very best companies drafting business plans supporting the EB-5 program and other immigration visa pathways. For the first time, the annual “Top 25 Attorneys” issue expanded the voting field for ancillary professionals from Top 5 to Top 10, and – also for the first time – there were two independent winners from the same company: our very own Marisa Marconi, Founder & CEO; and business development lead William Dean. Pinnacle is truly proud of them both. Marisa and William will be honored in person at an awards banquet held by EB-5 Investors during the upcoming convention in Newport Beach, California later in January.

For the print edition of the magazine, click here; to see Pinnacle’s advertisement in the same volume, click here.

There’s a lot to love about the E-2 visa. It’s available to citizens of more than 80 treaty countries. There’s no annual cap limiting how many overseas investors can pursue it. It does not have fixed investment requirements, or sky-high funding and job creation demands like the EB-5. It typically lasts for 3-5 years, and as long as the subject business stays open, the visa can be renewed indefinitely. A foreign national can partner with a U.S. citizen. In some scenarios, an E visa can be converted into other types of visas. The lead investor’s role isn’t meticulously dissected during adjudication the way it is for intracompany transferees. You can buy a qualifying business – including a franchise, guaranteed to meet E-2 criteria – or start one on your own. The E-2 even confers employment and other benefits to an investor’s spouse and children. In the hands of qualified counsel, it’s relatively easy to obtain. What’s not to like?

Okay, the E-2 is a nonimmigrant visa, and doesn’t grant investors a green card. Furthermore, there are unfortunately billions of people from India, China, Brazil, Russia, and elsewhere who can’t qualify without another passport or expensive CBI path (hello, Grenada!). But overall, this is a rockstar visa – clear-cut, accessible, flexible. It accounts for the lion’s share of our immigration business plan clients, and it’s the bread-and-butter service for hundreds of great lawyers we know. I talk to at least one prospective E-2 client every day, and in general they’re well-prepared and eager to proceed with the important work of drafting a business plan to support their case. Oftentimes, these applicants are new to entrepreneurship, and the business plan we make is useful to them as a roadmap for operations, not just rote petition filler.

My favorite thing about the E-2, as a business plan writer, is the variety. Whereas the majority of EB-5 matters concern real estate, and it seems like every other L-1 beneficiary works for an import/export business, the E-2 landscape is like walking down the candy aisle in a grocery store. For every gas station or coffee shop, we also get to write about a racquetball gym, a geolocation app, a vegan bakery, a car racing circuit, a dog training school, you name it – if it’s federally legal (sorry, dispensary hopefuls), it’s fair game.

We even wrote a (successful!) E-2 plan for a farrier this year (if you had to click to look that one up it’s okay, I did too). In a single week last year, I met two prospective E-2 holders (both now approved), the first a world-famous hostage negotiator with his sights set on Hollywood, and the second the founder of a leading sex toy developer in Europe. Same visa! No two the same. There’s been a notable upswing in real estate-oriented E-2s, which can be tricky to prepare well, but in aggregate our E-2 clientele still delivers a carousel of business models new and old.

Looking back, here’s a sampling of the last 100 E-2 plans I’ve set up for the team, by industry sector. This is an unscientific snapshot, and not necessarily indicative of the breakdown that consular officers or USCIS sees, but it was sure fun to make:

As you can see, restaurants, real estate development, and trucking companies are well represented, and one in every five was a unique business or personal service. But bottom line, the fact “All Others” is far and away the largest category makes my point in a nutshell.

If you want an idea of what the U.S. business landscape is like, just look to the thousands of E-2 visa investors who come here every year to grow the economy.

Their unique ideas and efforts create tax revenue and employment opportunity in every sector and every state. I always tell prospective clients: the E-2 isn’t explicitly a job-creation program the way EB-5 is, but it functions much the same way. And we collectively reap those benefits here in the U.S. every single day.

Besides a solid and demonstrable market opportunity, the core elements behind a great E-2 plan are making it crystal clear that A) the investor’s funds are sufficient for the business they’re planning to run, B) there should be some U.S. job creation within approximately 12-18 months after startup, and C) the applicant is at least reasonably well-suited to the enterprise. Attorneys refer to these first two issues as proportionality (literally, is the planned investment proportional to what would be expected for this type of company?) and marginality (will the investment be non-marginal, i.e., can the business do more to boost the U.S. economy than simply supporting its principal investor and his or her family?).

To get more insight about these critical E-2 touchstones and other important issues for E-2 visa seekers, I talked to Belma Demirovic Chinchoy, a longtime immigration lawyer at the Los Angeles firm of Iyer Demirovic Chinchoy LLP:

“In evaluating a new E-2 case, I first consider two things: 1) how well developed is the business idea, and 2) whether the investor possesses an expertise and/or experience with this line of work. Through this discussion, I can get a good sense of the investment proportionality and whether the business leans toward being marginal. Most traditional business models will perform well if the petition is carefully prepared, but in my experience, entertainment/influencer/app development types of businesses – especially those led by very young professionals – tend to be scrutinized the most by E-2 adjudicators. Officers do not take these businesses as seriously, so these types of E-2 filings have to be heavily substantiated and the investors need to be well prepared for the interview.

“We have seen investors prepare aggressive business plans in terms of revenue and employment creation (i.e., aiming to preempt a finding of marginality), but then make initial cash investments that fall well short of supporting such lofty business development and hiring plans. USCIS pushes back in these cases, and questions business feasibility and credibility of the business plan. These plans tend to be home-grown and not supported by third parties or market data, which is why I insist clients work with outside professionals like you guys.”

As business plan writers, we at Pinnacle Plan Writing have a set of market research tools we can turn to for help proving proportionality and marginality. There’s no substitute for experience, and one of the most useful data sets we have at our fingertips is a vast collection of 20,000+ financial models built for startups and existing businesses nationwide. We also pay for subscription-based resources that compile industry average rates for various expenses (including employee salaries), which can prove extremely useful to cross-reference payroll and Use of Funds figures, even in these less traditional business models which tend to invite scrutiny. (For the DIY crowd, there are some free tools out there too, like salary.com and the U.S. Census Bureau, which offer reports that can be used to confirm estimates for some clients or at least help inform basic forecasting.)

Beyond just proportionality and marginality concerns, I was also curious about the differences – from a lawyer or client’s perspective – in a petition submitted directly to USCIS as opposed to an embassy or consulate. Belma shared these observations:

“As a preliminary matter, it is essential to submit comprehensive E-2 packages to both USCIS and a consulate which address all E-2 legal requirements. What distinguishes the filings to USCIS and a consulate, generally speaking, is that filings to USCIS are more detailed with lengthier exhibits. Filings to USCIS do not have a page limit and USCIS expects to see a substantial amount of detail in organizational charts, job descriptions, and financial projections. The flip side of this is that USCIS does not have the opportunity to interview and hear from the investor, so the documents alone have to tell the story and substantiate it.

“Submissions to a consulate tend to be more formulaic – in accordance with the specific instructions provided by the receiving consulate – and a comprehensive business plan is generally the most significant document in an E-2 submission to the consulate or embassy. To me, that makes a good business plan even more important, despite the fact there’s an opportunity for the candidate to be interviewed about the business.”

Belma also cautions that one common pitfall of E-2 filings, especially at consulates, is presenting an overly complicated plan or ownership structure that a consular officer cannot make sense of in the very limited time they have to adjudicate the application. Consular filings must make it crystal clear that all E-2 legal requirements have been met, without wasting time on distractions or dragging the reviewer into a labyrinthine explanation of how different business elements interrelate.

“A clear, concise business plan is the best way to avoid this confusion,” Belma reassures us. “Based on trends I’ve witnessed the past few years, it will be even more important to make the adjudicator’s job as easy as possible going forward.”

William T. Dean
william@pinnacleplanwriting.com
503-749-0587
www.pinnacleplanwriting.com

The guidance remains murky, but it’s an exciting development.  And it’s all happening right now.

H-1B Background

Established by Congress in 1990, the H-1B program allows U.S. employers to temporarily hire foreign workers in specialty occupations.  According to USCIS, the visa applies mainly to individuals whose positions require the theoretical and practical application of highly specialized knowledge, typically supported by a relevant bachelor’s degree or equivalent experience.  The qualifying job duties must be complex in nature, and employers are required to pay the H-1B holder no less than the prevailing wage as determined by the Department of Labor.

Changes

Effective January 17, 2025, H-1B visas can now be issued to immigrants who themselves own and control the sponsoring entity.  To qualify, the beneficiary must own more than 50% of the petitioning company or hold majority voting rights.  Coming at the end of a long history of mostly restrictive policy changes – higher filing fees, travel limitations, the “Buy American, Hire American” mandate – this is a notably positive development that’s finally being implemented.

H-1B Benefits

The H-1B visa is initially granted for 18 months, with a renewal option for another 18 months, followed by an additional three-year extension.  Visa holders can apply for a green card and are eligible for a social security number, a U.S. driver’s license, and a bank account.  Spouses and children under 18 can accompany the visa holder into the United States under H-4 dependent status.  There are no nationality requirements, meaning applicants do not need to be from a treaty country the way E visa seekers do.

Lottery Process

This part is cumbersome:  to attain an H-1B visa, applicants must first register for a lottery.  Although the number of visas is capped at 65,000 with an additional 20,000 available for those who have master’s degrees, more than five times that many people registered for FY2025, with 470,000 people entering the lottery last year.  Of those, only 135,137 were selected for the petition phase, at which point sponsors work with immigration attorneys to submit supporting documents and fees for USCIS reviewers.  The FY2026 lottery registration window opened back on March 7, 2025, and closes today, March 24.

Requirements for Entrepreneurs

To qualify for this type of H-1B visa, an entrepreneur must legally establish a corporation (sole proprietorships are not permitted) and maintain at least 50% ownership of the company.  The business may be either a newly established startup or an existing entity.  The entrepreneur must demonstrate that their job duties align with a specialty occupation requiring a related bachelor’s degree, show that they meet or exceed the prevailing wage for the position, and provide evidence of the company’s financial stability.

Why a Business Plan?

While a multibillion-dollar company sponsoring people for H-1B can forgo a traditional business plan – really, does USCIS need Amazon or Microsoft to explain its business model? – this new foray into owner-applicant petitions does require some more nuts and bolts explanation.  What is the company’s product or service, and how large is the potential U.S. market?  What competition will it face, and how can it position itself to succeed?  How will the business allocate funding, and what financial benchmarks are realistic over the next 3-5 years?  These questions are at the heart of a comprehensive business plan.

For an applicant with a controlling interest in the sponsoring entity, the management section and job duties are of particular importance, along with proof that they’ll earn a salary in line with the DOL’s expectations.

Main Considerations

We asked Joseph Hamel, a partner at Jia Law Group in New York City, for his view on the rule change and what it means for entrepreneurial-minded immigrants, particularly when it comes to their business plan and describing their role and management team:

“This is definitely a newer concept, and the rules around it are still settling after the recent clarification.  Based on DHS’s comments during the rulemaking process, we no longer need to establish an employer-employee relationship or prove traditional supervision or related elements, but the applicant must still primarily perform the duties of the specialty occupation—not just CEO or leadership responsibilities.  So, the role’s job duties should align with the specialty occupation, and leadership tasks should be secondary/minority.  If the company has a board of directors or other governing body, that can be mentioned as an additional oversight factor, though it’s not required.

For the business plan, an organizational chart is useful, but it should be clear that the applicant’s role meets specialty occupation criteria.  Showing the structure of already hired employees or current plans to hire in the near future can help to support that the applicant won’t be spending too much time running the business versus doing their H-1B job.”

To that end, one win-win feature of equity-holder H-1Bs is the chance for the visa beneficiary to extend employment offers to U.S. citizens, similar to investor visa categories like EB-5 that explicitly create jobs.  In fact, showing that new hires will be brought aboard quickly may be vital to a successful petition.  As Joseph observes:

“One key limitation is that these H-1B approvals are capped at 18 months per period, requiring more frequent extensions than a typical H-1B, so business plans should take into account these shortened time frames.  Specifically, hiring the first person in year 2 or 3 might be a bit too late for USCIS’s tastes.  We expect they will be very strict with this category and want to see entrepreneurs pushing to build a business and hire appropriate people in a timely manner.

Monitoring and engaging in discussions with other attorneys in immigration law, it’s clear that many lawyers – despite the language in the regulations and comments – are being cautious and advising owners to have additional staff, believing that an H-1B holder being the sole employee is very likely to spawn a Request for Evidence.  Absent mitigating factors, USCIS may not believe the person could possibly spend the majority of their time doing a specialty occupation job if they also have to do hiring, operations, marketing, and so forth.”

Conclusion

H-1B is a popular visa category, and it’s good to see it evolve to better accommodate entrepreneurs.  Most of the usual limitations remain in play:  specialty role definitions, the nerve-wracking lottery process, and blind scrutiny from USCIS adjudicators.  But for the first time, a new category of prospective immigrant can explore H-1B and use it as a springboard to build a new American company.  At a time like this, that feels like cause for celebration.