Important BIA Court Decisions on the E-2 Visa

Every year, many entrepreneurs look to the United States as the ideal place to build their business. For citizens of treaty countries, the E-2 Treaty Investor visa opens that door. It allows investors to live in the U.S. and manage the very businesses they create. But behind its promise lies a complex legal framework. Success rests on meeting precise legal standards that define what counts as a substantial investment, how control is exercised, and which nationality applies.

Their meanings have been clarified through years of legal interpretation and precedent decisions. Over time, the Board of Immigration Appeals (BIA) has clarified what these terms mean through binding decisions.

Core Requirements for the E-2 Visa

According to the U.S. Citizenship and Immigration Services (USCIS), the E-2 classification allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business.

The Department of State expands on these requirements in its Foreign Affairs Manual (9 FAM 402.9), which provides guidance to U.S. consular officers when adjudicating E-2 visas.

To qualify, an applicant must prove the following:

1. Nationality – The investor must hold citizenship in a country that maintains a qualifying treaty of commerce and navigation with the United States.
2. Substantial investment – The investment must be significant in proportion to the cost of establishing or purchasing the business. There is no fixed dollar amount, but the investment must be sufficient to make the enterprise operational and successful.
3. Real and operating enterprise – The business cannot be speculative or idle. It must produce goods or services and generate income.
4. Active direction or development – The investor must come to the U.S. to direct and develop the business, not as a passive investor.
5. Marginality test – The business must have the present or future capacity to generate more than a minimal living income for the investor and their family.
6. Qualified employees – Employees under E-2 status must perform executive, supervisory, or essential skills duties for the enterprise.

Each of these points must be supported by evidence. Inconsistencies can lead to a visa denial, because consular officers apply these standards strictly and refer to established precedent when questions arise.

Why Adherence to E-2 Rules Is Critical

The E-2 visa is highly scrutinized because it depends on economic credibility rather than a fixed dollar threshold. Officers examine the investor’s intent, business plan, and structure. When terms such as substantial investment or control are open to interpretation, BIA provides clarity through its published decisions.

The BIA is the highest administrative body interpreting immigration law within the U.S. Department of Justice. Its precedent decisions are binding on immigration judges and Department of Homeland Security officers unless overturned by a federal court or the Attorney General. For E-2 applicants, understanding key rulings helps avoid costly mistakes that have already been decided in prior cases.

Two important cases, Matter of Walsh & Pollard (1988) and Matter of Ognibene (1983), illustrate how these principles have been interpreted and enforced.

Matter of Walsh & Pollard, 20 I&N Dec. 60 (BIA 1988)

Circumstances:
Two British citizens, Mr. Walsh and Mr. Pollard, were employed by a United Kingdom corporation engaged in the business of construction management. The employer had a wholly owned United States subsidiary engaged in the same business. The company sought to send Walsh and Pollard to the United States to work in senior positions managing projects and overseeing business operations on behalf of the parent corporation. They applied for admission as E-2 treaty-investor employees, arguing that the corporation had made a qualifying investment in its U.S. subsidiary.

The Immigration and Naturalization Service questioned whether the company’s investment met the substantial investment requirement and whether Walsh and Pollard’s duties were executive or essential. The case reached the Board of Immigration Appeals after an initial denial.

Legal Issues Before the Board:

1. How should substantial investment be measured for E-2 eligibility?
2. Do the employees qualify as executive or essential under the E-2 classification?

BIA’s Findings and Reasoning:

• The Board determined that the E-2 investment test is qualitative and proportional, not defined by a fixed dollar amount.
• A small investment can meet the standard if it represents a significant proportion of the cost of purchasing or establishing the enterprise, and if it is sufficient to make the business viable.
• The key consideration is whether the investment demonstrates a real financial commitment that ensures the enterprise’s success.
• The Board found the investment was sufficient to ensure the successful operation of the United States enterprise.
• The Board also ruled that Walsh and Pollard’s roles met the definition of executive or essential employees, as they directed operations and provided skills central to the company’s business model.

Decision (Holding):
BIA approved the appeal and held that:

1. An investment may be considered substantial even if the dollar amount is modest, as long as it is proportionate to the total cost of the enterprise and sufficient to make the business operational.
2. Employees who perform executive or essential functions for a treaty enterprise may qualify for E-2 classification when their work directly supports the investor’s ability to direct and develop the enterprise.

Implications for E-2 Applicants:

• The ruling remains the most influential BIA precedent defining how substantial investment is evaluated.
• It established that there is no fixed minimum investment for E-2 eligibility. Officers must instead assess whether the funds invested are adequate in relation to the enterprise’s total cost and objectives.
• The case affirmed that E-2 employees can qualify when their roles are essential to the success of the business, even if they are not the principal investors.
• For applicants, Walsh & Pollard emphasizes the importance of documenting proportionality, business viability, and operational control rather than focusing solely on the size of the investment.

Matter of Ognibene, 18 I&N Dec. 425 (Reg. Comm. 1983)

Circumstances:
The applicant, Mr. Ognibene, was a native of Italy and a citizen of both Italy and Canada. He was admitted to the United States on June 24, 1981, as a non-immigrant visitor for business (B-1) under his Canadian passport. After admission, he applied to change his non-immigrant status to that of a treaty investor (E-2) under section 101(a)(15)(E)(ii) of the Immigration and Nationality Act, claiming eligibility as an Italian national.

The Immigration and Naturalization Service denied the application, determining that because Ognibene had entered the United States as a Canadian national, he could not qualify for E-2 treaty investor classification based on his Italian nationality while remaining in the country. The case was then appealed to the Regional Commissioner, who issued the published decision.

Legal Issue:
Whether an individual who holds dual nationality and enters the United States under one nationality may change non-immigrant status to a treaty classification based on the other nationality without departing the United States.

Findings and Reasoning:

• For purposes of this application, the applicant must be considered to be a Canadian national, since that was the nationality under which he was admitted to the United States.
• A person may not change non-immigrant classification to one based on a different nationality from the nationality used at entry.
• Because the applicant was admitted as a Canadian visitor, he remained a Canadian national for immigration purposes during that authorized stay.
• If he wished to obtain E-2 classification as an Italian treaty investor, he would be required to depart the United States and apply for an E-2 visa abroad as an Italian national.
• The Regional Commissioner emphasized that treaty classification is tied to the nationality under which the individual was admitted and cannot be based on another nationality held concurrently.

Decision (Holding):
The application was denied. The Regional Commissioner held that an individual’s nationality for the purpose of non-immigrant classification is fixed at the time of admission to the United States. A dual national who enters under one nationality cannot change status to a treaty classification based on another nationality while remaining in the country.

Implications for E-2 Applicants:

• The decision establishes the principle of nationality consistency for treaty-based classifications such as E-1 and E-2.
• A dual national’s entry nationality, passport, and treaty eligibility must all correspond to the same country.
• If entry occurs under the non-treaty nationality, the only remedy is to depart and reapply under the correct nationality abroad.
• The case continues to guide adjudicators and applicants by clarifying that treaty investor or trader status derives solely from the nationality of admission.
• E-2 applicants should ensure that all records, including passport, visa, and ownership documents, align under one treaty-qualifying nationality before applying.

Sources:

1. USCIS. https://www.uscis.gov/working-in-the-united-states/temporary-workers/e-2-treaty-investors

2. U.S. Department of Justice. https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/3111.pdf

3. U.S. Department of Justice. https://www.justice.gov/sites/default/files/eoir/legacy/2012/08/14/2947.pdf