The E-2 standards, in plain language.

• Treaty country

  E-2 exists only for nationals of countries the United States has a qualifying treaty of commerce and navigation with. Nationality decides it, not residence, and for a company at least half the ownership has to be held by nationals of that same treaty country.

  Common mistakeAssuming residence counts. It's nationality that decides, a spouse's passport doesn't transfer eligibility to the investor, and people give up without checking a list that has around eighty countries on it, including surprises.

  In the fileThe passport, and for a company, the ownership breakdown showing treaty-country nationals hold at least half.

  Source: U.S. Department of State, Treaty Countries

• Substantial investment

  There is no dollar minimum. The investment is substantial when it is proportional to the total cost of buying or creating this particular enterprise, and large enough to make it likely the investor will successfully develop and direct it.

  Common mistakeHunting for a magic minimum. There isn't one, and a $60,000 consultancy with every dollar deployed can read stronger than a $150,000 restaurant with half the money still parked.

  In the fileA costed table of everything required to make this enterprise operational, with receipts and contracts against it.

  Source: 9 FAM 402.9, Treaty Traders and Investors

• Investment at risk

  The capital has to be committed and subject to partial or total loss if the business fails. Money still sitting in an account, or held back until a visa is issued, is not at risk and does not count as invested.

  Common mistakeKeeping the money “ready to invest once the visa comes”. Funds held back for the outcome aren't at risk; the narrow escrow exception is something attorneys structure deliberately, not a default.

  In the fileTransfers into the business and out to vendors, executed contracts, purchased equipment, paid deposits.

  Source: 8 CFR 214.2(e), Treaty traders and investors

• Real and operating enterprise

  The business has to be an active, for-profit commercial undertaking producing goods or services. A registered entity with no activity is a paper company, and a passive holding such as undeveloped land or an idle asset does not qualify.

  Common mistakeTreating incorporation as operation. A certificate, an EIN and a logo make a paper company, and a passive asset held for appreciation doesn't qualify no matter its price.

  In the fileInvoices, first customers, payroll or contractor payments, something a stranger can actually buy.

  Source: USCIS, E-2 Treaty Investors

• How "real and operating" gets verified

  Nothing in the standards mentions a website, but the claim that the enterprise is real and operating is checked against whatever the outside world can see: the site, listings, customers, public activity. An empty search result argues against the file.

  Common mistakeAssuming nobody searches. The search happens, and an empty result reads as a paper company even when the business is real offline.

  In the fileA live site describing the actual operation, listings, and activity that matches the plan's story.

  Source: 9 FAM 402.9, Treaty Traders and Investors

• Marginality

  The enterprise must do more than earn a living for the investor and their family. It clears the marginality test by having the present or future capacity to generate more than that, or by making a significant economic contribution such as hiring in the United States.

  Common mistakeProjecting a comfortable salary for yourself and stopping. Income for the investor alone is the definition of the problem, and outside income doesn't rescue it.

  In the fileFive-year projections that include hiring, plus any early proof: contracts, pipeline, a first employee.

  Source: 8 CFR 214.2(e), Treaty traders and investors

• The five-year plan

  Where capacity to exceed marginality lies in the future, it has to be shown within roughly five years of the enterprise becoming operational. That means projections with stated assumptions, not a revenue line without an argument behind it.

  Common mistakeHockey sticks without assumptions. An evaluator reads the pricing, market and acquisition logic behind the revenue line, not the total at the end of it.

  In the fileFive years of expenses and profits showing capacity to profit within five, with the assumptions written down.

  Source: 8 CFR 214.2(e), Treaty traders and investors

• Possession, control and lawful source

  The investor must possess and control the funds, and show they were obtained through lawful means. Savings, a business sale, a gift and a secured loan can all qualify, and each one has to be traceable from origin into the business.

  Common mistakeStarting the paper trail last, and treating “it's my money” as documentation. Gifts and loans are fine, but they carry their own paperwork.

  In the fileStatements tracing the money from origin (sale, savings, gift letter, loan agreement) into the business account.

  Source: 9 FAM 402.9, Treaty Traders and Investors

• Develop and direct

  The investor has to develop and direct the enterprise, shown through ownership of at least 50 percent or through operational control such as a managerial position or another recognised control mechanism. A purely passive investment does not qualify.

  Common mistakeSplitting 50/50 with a partner without securing control mechanics, or planning to oversee from abroad. Passive doesn't qualify, however large the stake.

  In the fileThe cap table, the org chart, and governing documents showing at least half or real operational control.

  Source: 8 CFR 214.2(e), Treaty traders and investors

• Why this isn't optional (counsel)

  Every standard above is applied by a consular officer or USCIS to the specific facts of one case, and the application is legal judgement. This page is education; the case belongs to an immigration attorney.

  Common mistakeSpending six figures on the business and then economizing on the filing, or treating the attorney as a form-filler instead of the architect of the case.

  In the fileEverything above, in the order and format the consulate prescribes. That ordering is counsel's craft.

  Source: U.S. Department of State, E-2 Treaty Investors

E-2 business plan and business build