Inspector's Field Manual - Gani

Inspector's Field Manual
A treaty investor is a business person who is coming to the United States solely to develop and direct the
operations of an enterprise in which he or she has invested, or of an enterprise in which he or she is actively in the
process of investing, a substantial amount of capital.
Immigration officers must familiarize themselves with the definition of the E classification in §101(a)(15)(E) of
the Act and the regulations at 8 CFR 214.2(e) and 22 CFR 41.51.
(A) Treaty Traders. NAFTA business persons applying for the E-1 visa as a Treaty Trader must meet
the following requirements.
- Citizenship. The trader, individual or entity, must possess citizenship of Canada or Mexico. In the case
of an entity, at least 50% of that business must be owned by Canadian citizens or Mexican citizens.
- Trade. There must be an international exchange of a good or service, including title to that trade item,
for consideration between the United States and either Canada or Mexico.
- Substantial Trade. The volume of trade must constitute a continuous flow of trade items involving
numerous transactions between the United States and Canada or Mexico.
- Trade Linked to Citizenship. Trade is principally between the U.S. and Canada, if the trader possesses
Canadian citizenship, or between the U.S. and Mexico, if the trader possesses Mexican citizenship. At least 50%
of the international trade (as contrasted to domestic trade) of the trading entity must be conducted between the
U.S. and Canada, if the trader possesses Canadian citizenship, or between the U.S. and Mexico, if the trader
possesses Mexican citizenship.
(B) Treaty Investors. NAFTA business persons applying for the E-2 visa as a Treaty Investor must
meet the following requirements.
- Citizenship. The investor, individual or entity, must possess citizenship of Canada or Mexico. In the
case of an entity, at least 50% of that business must be owned either by Canadian citizens or by Mexican citizens.
- Investment Must Occur or Be in Process. The investor has invested or is actively in the process of
investing. The investor may invest in an established business or create a business. Being in the process of
investing requires the irrevocable commitment of funds.
- The Investment Must Be Real. The enterprise is a real and operating commercial enterprise. A
dormant or paper enterprise does not qualify.
- The Investment Must Be Substantial. A substantial amount of capital constitutes that amount that is
substantial in the proportional sense pursuant to a proportionality test, that is, an inverted sliding scale in which
the lower the total cost of the enterprise, the higher, proportionally, the investment must be. The overall cost of
the enterprise is compared with the amount of personal funds and assets invested by the investor. Only loans
guaranteed by personal assets qualify as actual investment by the treaty investor.
The business shall not be marginal, solely for the purpose of earning a living. A marginal enterprise is an
enterprise that does not have the present or future capacity to generate more than enough income to provide a
living for the treaty investor and his or her family.
- The Investor Must Be Developing and Directing the Enterprise. An investor develops and directs the
business by owning at least 50% of the enterprise or by a combination involving ownership and possession of
management responsibility, by controlling stock by proxy, etc.
(C) Qualifying Employees for E-1 or E-1 Visa Classification. Employees of Treaty Traders and Treaty
Investors also may apply for an E-1 or E-2, if they meet the following requirements.
- Citizenship. The employee must possess the same citizenship as the trader or investor employer.
- Position. The employee is destined to an executive/supervisory position, possessing the authority and
responsibility to make decisions which will set the direction of the enterprise; or the employee, if employed in a