The E-2 “At-Risk” Rule: What Counts as a Real Investment

The E-2 visa lets a treaty investor enter the United States to develop and direct an enterprise they have invested in.

A key requirement is that the investment is “at risk” in the commercial sense under the governing regulation.

The capital must be subject to partial or total loss and must be irrevocably committed to business use through spending or binding, noncontingent obligations, not simply held in an account. See 8 C.F.R. § 214.2(e).

Many first-time E-2 cases are adjudicated at a U.S. consulate under Department of State guidance, while USCIS reviews E-2 visa requests filed inside the United States, such as extensions or changes of status.

In either setting, officers look for proof that the funds are under the investor’s control, have been placed into normal business activity, and support a real operating enterprise.

A strong record shows the lawful source and path of funds and includes contracts, invoices, and proof of payment tying the capital to operations.

Defining a Real Investment for E-2 Visa Purposes

A qualifying E-2 investment is one made in an active, operating commercial enterprise that the investor will develop and direct. Common qualifying uses of capital include lease deposits and build-out, equipment, inventory, licensing, insurance, professional fees, and other startup or operating costs that place money into the business. Idle funds, speculative holdings, or the purchase of an asset without operating activity generally do not meet this standard. 

Real estate can qualify when it is integral to active operations rather than passive ownership. The investment must also be substantial and proportionate to the enterprise. There is no fixed dollar minimum in the regulations. Instead, adjudicators compare what has been placed at risk against the total cost of purchasing or establishing the business, an approach commonly described as proportionality. 

See U.S. Department of State guidance discussing E-2 substantiality and proportionality (9 FAM 402.9) . Lower-cost businesses often require a higher percentage investment, while higher-cost businesses may be credible with a lower percentage if the amount remains substantial and sufficient for viability.

The enterprise must also not be marginal. A marginal enterprise is one that lacks the present or future capacity to generate more than minimal living for the investor and the investor’s family within a reasonable period. 8 C.F.R. § 214.2(e). The analysis focuses on credible projections and operational reality, not labels.

Examples of Acceptable Investments for E-2 Visa

Acceptable investments depend on industry norms and the specific business plan. A restaurant case may show a signed lease, build-out commitments, equipment purchases, permits, and paid deposits that move the business toward opening. A retail or service business may document equipment, initial inventory, vendor contracts, and operating expenses tied to launch. The consistent theme is that funds are spent or locked into enforceable obligations connected to operations.

Franchise investments are common because they often include documented startup steps, such as a paid franchise fee and required purchases. For acquisitions of existing businesses, escrow can be workable where the purchase agreement is binding and the funds are released upon visa issuance, with a clear provision for return if the visa is refused. In each scenario, the goal is to show real commitment, control of funds, and exposure to commercial risk.

The Importance of Demonstrating “At-Risk” Investment

The at-risk showing often determines whether the application appears to be a real business venture or a tentative plan. Officers expect to see spending and enforceable commitments tied to operations, supported by contracts, invoices, and proof of payment. Funds that remain fully controllable and easily reversible typically weaken the case.

Applicants should also avoid structures that make the investment appear protected. Financing is not per se disqualifying, but the details matter. Loans secured solely by the assets of the E-2 enterprise are often treated skeptically because they can undercut whether the investor’s own capital is truly exposed to loss. 

By contrast, loans secured by the investor’s personal assets, with personal liability, are more consistent with an at-risk showing because the investor remains exposed if the business fails. See 8 C.F.R. § 214.2(e).

Factors Considered in Determining a Real Investment

Officers evaluate the totality of the circumstances. Substantiality is commonly assessed through proportionality, comparing the amount invested to the cost of purchasing or starting the business. A higher percentage can help for lower-cost enterprises, but a percentage alone does not guarantee approval.

Adjudicators also consider whether the funds are truly at risk, whether the investor controls the capital and the enterprise, and whether the business is operating or close to operating. For startups, they focus on a credible plan, reasonable timelines, and realistic projections. Non-marginality ties these points together, so projections should show capacity to move beyond a small self-supporting arrangement.

Common Pitfalls to Avoid in E-2 Visa Investment

A frequent pitfall is underfunding the business relative to the stated plan. If the budget does not match realistic startup and operating needs, officers may doubt the substantiality and viability. Another common problem is weak documentation. Officers expect a clear source-of-funds narrative, a traceable path of funds into the enterprise, and records that match the claimed expenses.

Unexplained transfers, cash-heavy payments without support, missing invoices, mismatched receipts, or refundable arrangements can create doubts or delays. Consistency between the business plan, the funding trail, and the documentary evidence is critical.

Seeking Professional Guidance for E-2 Visa Investments

Because E-2 cases are document-heavy and fact-specific, professional guidance can help investors present the case clearly. Immigration counsel can assist with structuring the investment so the funds are at risk and organizing evidence so the officer can review it efficiently, especially when the case involves escrow, financing, or complex source-of-funds histories.

Business-side support can also strengthen projections and assumptions when the case depends on showing the enterprise will not be marginal.

The Impact of the E-2 “At-Risk” Rule on Visa Approval

The at-risk rule often shapes the outcome because it signals whether the investor has made a real commitment to an operating enterprise. When the record shows spent funds and binding obligations, the application tends to appear more credible and can support later renewals by showing the business was launched as planned.

The at-risk analysis also connects directly to the non-marginal requirement. While job creation can help as evidence, the core question remains whether the enterprise has the capacity to generate more than minimal living for the investor and family within a reasonable period and operate as a genuine commercial business.

Frequently Asked Questions

Is there a minimum investment amount required for an E-2 visa?

No. The E-2 regulations do not set a fixed minimum dollar amount. Instead, the investment must be substantial in proportion to the total cost of purchasing or establishing the specific enterprise, taking into account the nature of the business.

Do E-2 investment funds have to be spent before filing the application?

There is no absolute rule requiring all funds to be spent before filing. However, applications are generally stronger when funds have been spent or are subject to binding, noncontingent obligations that show the capital is irrevocably committed and at risk.

Can escrow arrangements be used for an E-2 investment?

Yes, escrow arrangements can be acceptable if the purchase agreement is binding and the funds are released upon visa approval, with a clear provision for return if the visa is refused. The structure must still show real commitment and exposure to commercial risk.

Are loans allowed as part of an E-2 investment?

Loans are not automatically disqualifying, but the structure matters. Personal loans secured by the investor’s own assets and carrying personal liability are generally easier to support than loans secured only by the assets of the E-2 enterprise.

What does it mean for an E-2 business to be “not marginal”?

A business is considered marginal if it lacks the present or future capacity to generate more than minimal living for the investor and the investor’s family within a reasonable period. Credible projections, operational plans, and evidence of growth potential are central to this analysis.

Can an E-2 visa be renewed if the business is still operating?

Yes. E-2 status and visas can generally be renewed as long as the enterprise continues to meet the E-2 requirements, including being real, operating, and not marginal, and the investment remains at risk.

This article is general information, not legal advice. Local rules govern.