Foreign Nationals from Certain Countries

The E-2 principal investor must have the nationality of the treaty country (listed below), or be a qualifying employee of an enterprise at least 50% owned by persons of such nationality. The nationality of dependents is irrelevant to their classification, and the spouse of an E nonimmigrant may apply for work authorization.

If the employer is a corporation or other business organization, the majority ownership (at least 50%) of the business must be by aliens who are of the same nationality as the employee and who, if not residing abroad, are maintaining status under section 101(a)(15)(E) of the Immigration and Nationality Act. An alien who is a lawful permanent resident of the U.S. does not qualify to bring employees into the U.S. under INA 101(a)(15)(E). Shares of a business owned by lawful permanent resident aliens cannot be considered in making determinations of majority ownership by nationals of the treaty country.

Adjust Status in the United States

The application process for the E-2 nonimmigrant visa does not require a separate petition, therefore, E-2 status may be obtained either directly through the Department of State (by applying for an E-2 Visa), or in the case of an alien already in the U.S., by applying to the appropriate service center for a change of status. Supporting documents to be submitted with the E-2 application include documents to establish the nature of the employment and the ownership of the enterprise, and source of investment funds.

List of Countries

Investment must be Substantial and Committed

Several cases have dealt with the substantiality test for the investment amount. In one case, E-2 status was denied where the total value of the enterprise was $64,000 and the applicant invested only $10,000, but alleged that at some unspecified future time he would increase his investment to more than 51% of the enterprise. The U.S. Government ruled that the applicant had failed to establish that his investment did not represent a "small amount of capital in a marginal enterprise solely for the purpose of earning a living", as required by the federal regulations. Whether the investment is marginal is always a big issue with E-2 cases.

Substantiality test focuses on whether the amount of the E-2 funds compared to the total cost to purchase or create the enterprise is substantial. Also, the amount must normally be considered sufficient to ensure the investor's financial commitment to the business.

If the business is a small or medium sized business, the funds must be proportionally larger compared with the total cost of starting or buying the business.

Decisions have established that mere intent to invest does not meet the requirements of the law. An applicant was denied E-2 treaty investor status where the applicant's only showing was that he intended to invest $10,400 on deposit in a savings account in a shoe manufacturing business. The applicant must show more than a subjective intention to invest. Although an investor may have invested in the past, that does not establish that s/he will invest funds in the future.

The E-2 investment funds must be put at risk under the Foreign Affairs Manual. The capital must be subjected to partial or total loss if enterprise is unsuccessful. Mortgage debt or commercial loan secured by the business's assets is not sufficient. Inheriting a business is not sufficient to qualify.

Placing funds in escrow pending approval of the E-2 nonimmigrant visa is permissible, even if the escrow instructions state that funds are protected if E-2 is denied.

Managerial or Supervisory in Nature

Employment duties of the E-2 employee must provide the employee ultimate control and responsibility for the enterprise's overall operation or a major component of it. Adjudicating officers considering an E-2 application will consider whether executive provides authority to determine policy and direction, whether E-2 employee supervises a significant portion of the operation, whether supervisor oversees low-level employees, experience of E-2 employee, salary and position title, organizational structure of company and E-2 employee's position and discretionary decision-making power among other factors.

Several precedent decisions have clarified which employees are considered to be working in an executive or supervisory capacity. In one case, the managerial employee charged with the training or instruction and supervision of entertainers and waiters in a theater restaurant was not considered to be employed in the "responsible capacity" as required by the federal regulations.

An applicant who would be supervising and training American workers as tempura cooks at a Japanese restaurant and assisting in the preparation of meals during the training period was deemed inadmissible as an E-2 employee because he will not be employed in a "responsible capacity."

Source of Investment Funds

The source of the funds must be the alien investor. If the alien does not invest her own funds, she cannot qualify as a treaty investor. Acquiring loans guaranteed by another party is insufficient as well. Investing funds acquired from parents or in-laws is insufficient for an E-2 nonimmigrant visa.

E-2 Investment funds cannot be obtained directly or indirectly through criminal activity, and the applicant bears the burden of proof in establishing that the funds were obtained legally. If the means of obtaining the funds would be considered legal in the United States, the source of funds would be legal. If foreign law restricts transfer of funds out of the foreign country, but transfer is otherwise considered legal under U.S. law, the source of funds would be considered legitimate.

Investors or Employees

The E-2 alien may be the actual owner of a qualifying business, company or corporation, or an employee of such an enterprise working in an executive or supervisory capacity or in a capacity which requires special qualifications essential to the operation of the E-2 business. Such employees must have the same nationality as the principal employer. An E-2 alien may perform services for the parent treaty organization or any of its subsidiaries.

In one case, a highly trained chef who was engaged in a specialized form of Japanese cooking (Nabemono) and has been brought to the U.S. to impart his knowledge, the BIA concluded that the applicant is employed by a treaty investor in a "responsible capacity" and therefore qualified for E-2 nonimmigrant status.

Investment is Marginal

If an enterprise does not have the present or future capacity to generate more than minimal living for investor and family, the Department of State or USCIS will consider the investment marginal.
If the future capacity is the issue, the applicant should provide a five year plan and demonstrate what is expected in the next five years.

Under Lauvik v. INS, the investment cannot solely be used to earn a living for the investor and family. The State Department and USCIS will look at several factors when determining marginality issue.

• Whether investor has other source of income
• Investment will generate income above what is normally considered satisfactory to support a living
• Investment will expand job opportunities
• Investor will not work simply as a skilled or unskilled worker for enterprise

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