## Facts

- Anthony J. Nice entered the United States on a B-1 visitor visa and sought to change status to E-2 treaty investor under 8 U.S.C. § 1101(a)(15)(E)(ii).
- Nice claimed he invested $25,000 in a U.S. car wash.
- The investment was supported primarily by a $25,000 check drawn on a foreign bank, signed by Nice’s wife, and used by Nice to fund the business.
- Immigration officials identified irregularities related to the check, including missing proof identifying the principal who allegedly granted the power of attorney under which Mrs. Nice signed.
- The agency concluded Nice failed to prove the funds were his own risk capital and that the record suggested the investment was actually made by his father-in-law.
- Nice argued the agency could not require proof of the ultimate source of funds except to rule out sham investments and that proof of possession and control should suffice.

## Issues

1. Whether the immigration agency may require an E-2 treaty investor applicant to prove he personally is the source and owner of the invested capital (i.e., that it is his own risk capital).
2. Whether the agency may deny E-2 classification when the applicant fails to substantiate that the invested funds are his own.

## Decision

- The Ninth Circuit affirmed the district court’s judgment upholding the agency’s denial of E-2 classification.
- The court held the statute requires the applicant to show “he has invested” substantial capital, permitting inquiry into whether the applicant himself is the true investor.
- The court upheld the agency’s determination that Nice did not meet his burden to prove the $25,000 constituted his own risk capital given the documented irregularities and the alternative inference that a relative funded the investment.
- The court rejected arguments that legislative history or agency guidance limited the government’s ability to require proof of source and ownership.

## Legal Principles

- Under 8 U.S.C. § 1101(a)(15)(E)(ii), an E-2 applicant must establish that he personally has invested a substantial amount of capital in the U.S. enterprise.
- The government may require evidence of the source, ownership, and risk allocation of invested funds to confirm the applicant’s personal investment.
- Demonstrating mere possession or control of funds does not necessarily satisfy the requirement that the applicant “has invested” his own risk capital.
- Legislative history and nonbinding guidance cannot narrow a clear statutory requirement that the applicant be the actual investor.

## Conclusion

The court upheld denial of E-2 treaty investor status because the applicant failed to prove that the investment funds were his own risk capital, and it confirmed the government’s authority to demand proof that the applicant personally is the true source and owner of the invested capital.


Nice v. Turnage, 752 F.2d 431 (9th Cir. 1985)