Leon J. Snaid Immigration Law Blog on Lawyers.com

The U.S. has treaties with certain countries, which allow citizens of those countries to make a substantial investment in a U.S. business and to receive E-2 Treaty Investor visas. Canada and Mexico are among the countries whose citizens are eligible.

The investment must give the investor control of the business.

The term "Substantial" is not defined as a dollar amount in the E-2 visa laws. There is what is known as the "proportionality test", which considers various factors. In simple terms: Is the amount of the investment substantial in relation to the type of business? A business that requires machinery and inventory will require a larger investment than a service type business, which does not require significant equipment.

A foreign corporation in a country that qualifies for E-2 visas may send citizens of that country to the USA on E-2 visas, provided the majority of the stockholders in the foreign corporation are citizens of that treaty country.

An E-2 country citizen need only own 50% of the stock in the U.S. corporation, which he/she intends to direct and develop. This control allows the E-2 visa holder to veto any decisions and this negative control constitutes control.

The investment may not be "marginal." The business must have a present and future ability to generate more than a minimum living for the investor, while at the same time the purpose of the business may not merely be intended to provide the investor with a good living. An important factors to consider in evaluating the marginality of the business are whether the business will create and expand jobs for U.S. workers and will it generate more income than would be considered a good living.

The money that is invested must be "at risk." It is not sufficeient to deposit a substantial amount of money in the corporation's banking account. "At risk" means that the funds are no longer under the investors control. It is possible to buy a business, deposit the funds in an escrow account and agree that the money will only be handed to the seller if the E-2 visa is granted.

Money is not the only form of investment that is permitted. Inventory and equipment may be imported and considered in the investment.

The investor's spouse and children under the age of 21 are also eligible to receive E-2 visas, even if they are citizens of a non-treaty country. The E-2 visa holder's spouse is entitled to receive work authorization and may work for any employer.