An E-2 is a visa is for a foreign national of a “investor treaty” country, coming to the US to direct the operations of an enterprise in which the investor has invested or is actively in the process of investing a substantial amount of capital. This visa may also be obtained by key employees of the business. Key considerations include: i) whether the foreigner is a national for a country that has an E-2 investor treaty, ii) that the business is 50% owned by foreigners of the treaty country, iii) that the foreigner is either a 50% owner or a key employee of the company, iv) that and that the investment is “substantial.”

E-2 Immigration LawyersIn order to determine if the foreigner is a national of a qualified country, we must refer to Volume 9 of the Foreign Affairs Manual, section 41.51, Ex. 1. If the foreign national’s country is not on this list, then E-2 is not an option.

Establishing that at least 50% of the US business is owned by eligible foreigners obviously depends on the nationality of the owners. Interestingly enough, however, is that if one of the owners is a US lawful permanent resident, that person’s ownership is not considered to be that of a foreigner, even if that person is a citizen of a qualifying treaty trade eligible country.

While an owner who owns at least 50% of the US business is eligible for E-2, “key employees” are also eligible. A key employee must prove that they are either an “essential skills” worker whose skills are essential to the trading enterprise or key executives.

Proving “substantial investment” is not a precise art because the regulations do not specifically define “substantial.” At a minimum, the investment should produce a return that is higher than a mere income to support the investor and her/her family. Three factors to consider are 1) dollars invested ($200K is a reasonably safe minimum, but some have obtained E-2 visas on initial investments as small as $50K), 2) proof that the amount is enough to capitalize business functions (this obviously varies by business), and 3) the investment should go beyond marginal job creation (that is, at least beyond creating a job just for the investor).
http://www.peerallylaw.com/en/content/view/517
List of Treaty countries: https://travel.state.gov/content/visas/en/fees/treaty.html