Immigration and Nationality Act (INA)
The E-2 treaty investor is a nonimmigrant classification that allows a foreign national of a treaty country (including their spouse and children) to enter the United States for the purpose of investing, developing, and directing a business.
The legal framework and specific requirements for the E-2 classification span multiple levels of sources. The primary source of authority is the Immigration and Nationality Act (INA). The E-2 classification is codified in Title 8 of the U.S. Code, Section 1101(a)(15)(E), which states, in part:
"(15) The term 'immigrant' means every alien except an alien who is within one of the following classes of nonimmigrant aliens- … (E) an alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which the alien is a national (or, in the case of an alien who acquired the relevant nationality through a financial investment and who has not previously been granted status under this subparagraph, the foreign state of which the alien is a national and in which the alien has been domiciled for a continuous period of not less than 3 years at any point before applying for a nonimmigrant visa under this subparagraph), and the spouse and children of any such alien if accompanying or following to join such alien … (ii) solely to develop and direct the operations of an enterprise in which the alien has invested, or of an enterprise in which the alien is actively in the process of investing, a substantial amount of capital"
Code of Federal Regulation (CFR)
Following the statute are the regulations. These are the federal agencies' official interpretations of the statute, published after administrative procedure and public comment periods. The regulations detail how the statutory requirements are applied in practice.
Because there are two pathways to obtain E-2 authorization, there are two sets of relevant regulations:
Title 8 (Immigration and Nationality): Governs foreign nationals already in the U.S. applying for a Change of Status through USCIS. See 8 CFR 214.2(e).
Title 22 (Foreign Relations): Governs foreign nationals applying from outside the U.S. through a consulate to obtain a physical visa for travel. See 22 CFR 41.51(b).
Agency Guidance
Going further, internal agency manuals provide the specific guidance that officers use to evaluate these cases.
Department of State (DOS): E-2 details and consular adjudication standards are outlined in Foreign Affairs Manual, Title 9, specifically 9 FAM 402.9.
USCIS: While USCIS relies on its Policy Manual (PM), the E-2 chapter has not yet been fully updated to replace the retired Adjudicator's Field Manual (AFM). Therefore, for reference purposes, the legacy AFM Chapter 34 remains relevant, in addition to any controlling policy notices.
Finally, the respective USCIS and DOS websites provide general administrative guidance on forms, fees, and filing locations. For foreign nationals applying from outside the U.S., it is critical to review the specific guidance from the individual country's consulate through which the foreign national is applying.
Core Requirements
From the statute, we derive five foundational requirements that every E-2 investor must meet:
Nonimmigrant Intent: An intent to depart the U.S. at the expiration or termination of the E-2 status.
Treaty Country: A qualifying treaty must exist between the United States and the foreign national's country of nationality.
U.S. Enterprise: There must be an enterprise established in the United States.
Direct and Develop: The applicant is coming to the U.S. solely to develop and direct that enterprise.
Substantial Investment: The applicant has invested, or is actively investing, a substantial amount of capital into that particular U.S. enterprise.
In addition to expanding on these five foundational statutory elements, the federal regulations, specifically 8 CFR 214.2(e), add several specific evidentiary requirements that an applicant must prove to secure approval:
Lawful Source of Funds. The investment capital must be acquired through lawful means (e.g., savings, business income, or gifts) and clearly traced.
Bona Fide Enterprise. The substantial investment must be placed into a real, active, and operating commercial enterprise, rather than a passive investment.
At-Risk Capital. The investment capital must be irrevocably committed to the enterprise and subject to partial or total loss if the business fails.
Non-Marginality. The enterprise must not be "marginal," meaning it must have the present or future capacity to generate significantly more income than just enough to support the investor and their family.
