## Facts

- Two British citizens, automotive design engineers (ages 59 and 25), sought admission to the United States on E-2 treaty-investor employee visas.
- They were employed by IAD Modern Design, Ltd., a British-owned corporation that contracted to supply experienced automotive design engineers to General Motors for vehicle redesign work.
- To operate in the United States, the treaty enterprise formed a Michigan corporation that leased office space, bought office equipment, hired U.S.-citizen workers, and maintained a bank account with about $15,000.
- Evidence indicated the Michigan operation was expected to generate substantial revenue and create jobs, supporting that the enterprise had genuine commercial activity rather than existing only to support a livelihood.
- The government charged the applicants as excludable for lacking valid immigrant visas, contending the investment was not “substantial” and that the applicants were not qualifying E-2 employees because they were not managers/supervisors and were not developing and directing the investment.
- A chief immigration judge found the applicants admissible as E-2 treaty-investor employees and terminated exclusion proceedings; the government appealed.

## Issues

1. Whether the treaty enterprise had invested, or was actively in the process of investing, a “substantial” amount of capital in a bona fide, non-marginal U.S. enterprise sufficient for E-2 treaty-investor status.
2. Whether non-managerial, non-supervisory but highly skilled engineers could qualify as E-2 treaty-investor employees because their specialized skills were essential to the enterprise’s efficient operation.

## Decision

- The Board dismissed the government’s appeal and affirmed termination of exclusion proceedings.
- The Board held the enterprise satisfied the E-2 “substantial investment” requirement based on the nature and viability of the business and its operational steps in the United States.
- The Board held the applicants qualified as E-2 employees despite lacking managerial or supervisory duties because they were highly trained, specially qualified, and essential to the efficient operation of the treaty enterprise.

## Legal Principles

- For E-2 treaty-investor classification, the investor must have invested or be actively investing a substantial amount of capital in a bona fide enterprise.
- “Substantial” does not require any fixed dollar amount; the investment is evaluated in relation to establishing a viable business of the type contemplated, and a new enterprise must not be marginal (i.e., existing solely to support a living).
- E-2 employee classification is not limited to executives, managers, or supervisors; employees with specialized skills may qualify when they are essential to the efficient operation of the treaty enterprise, even if they are not developing and directing the investment.

## Conclusion

The Board recognized that E-2 “substantial” investment is assessed by business viability rather than a set monetary threshold and that specialized, essential technical employees may qualify for E-2 status even without managerial or supervisory responsibilities.


In re Walsh & Pollard, 20 I. & N. Dec. 60 (B.I.A. 1988)