To qualify for E-2 classification, the treaty investor must:

• Be a national of a country with which the United States maintains a treaty of commerce and navigation
• Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
• Be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

An investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit.  The capital must be subject to partial or total loss if the investment fails.  The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity. 

A substantial amount of capital is:

• Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
• Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
• Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.

A bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit.  It must meet applicable legal requirements for doing business within its jurisdiction.

The investment enterprise may not be marginal.  A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.  Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income.  In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins.

To qualify for E-2 classification, the employee of a treaty investor must:

• Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
• Meet the definition of “employee” under relevant law
• Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country.  These owners must be maintaining nonimmigrant treaty investor status.  If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.

E-1 visas

The E-1 category is much less frequently utilized than the E-2 category. To qualify for the E-1, 50% or more of the business of the company must be between the United States and the treaty country.

To qualify for E-1 classification, the treaty trader must:

• Be a national of a country with which the United States maintains a treaty of commerce and navigation
• Carry on substantial trade
• Carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification.

Trade is the existing international exchange of items of trade for consideration between the United States and the treaty country.  Items of trade include but are not limited to:

• Goods
• Services
• International banking
• Insurance
• Transportation
• Tourism
• Technology and its transfer
• Some news-gathering activities.

To qualify for E-1 classification, the employee of a treaty trader must:

• Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
• Meet the definition of “employee” under the relevant law
• Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country.  These owners must be maintaining nonimmigrant treaty trader status.  If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty traders.