E-2 Consular Authority
9 FAM 402.9: E Visa Consular Guidance
Use the Foreign Affairs Manual framework applied by consular officers adjudicating E-1 and E-2 visa applications.
Direct answer
What the governing framework requires
9 FAM 402.9 is the Department of State's principal published guidance for E visa adjudication. For E-2 treaty investors it addresses treaty nationality, investment, substantiality, possession and control of capital, real and active enterprise requirements, marginality, development and direction, qualifying employees, and intent to depart when E status terminates.
01 · FAM Role
The FAM guides consular officers
The Foreign Affairs Manual is not a substitute for the INA or regulations. It is nevertheless central to understanding how the Department of State instructs consular officers to adjudicate E visa applications.
02 · Investment
The FAM develops the investment concepts in detail
Its E-2 provisions address possession and control of funds, irrevocable commitment, commercial risk, substantiality, and the relationship between the investment and the enterprise.
03 · Enterprise
The business must be real and active
The FAM describes the enterprise as a real and active commercial or entrepreneurial undertaking rather than a paper organization or idle speculative investment.
04 · Marginality
The FAM provides the principal consular marginality framework
The analysis looks beyond whether the business can merely support the investor and family and considers present or future economic capacity under the published guidance.
05 · Employees
The FAM distinguishes executive, supervisory, and essential employees
Consular E-2 employee cases require a separate analysis of employer treaty nationality and the employee's proposed functions or special qualifications.
06 · Practical Use
Use the current FAM version in visa cases
Because FAM provisions can be revised, consular submissions should use the current published text rather than relying only on older summaries, prior filings, or archived interpretations.
Questions and answers
Frequently asked questions
What is 9 FAM 402.9?
Department of State guidance governing E visa adjudication.
Is the FAM a federal statute?
No.
Does it address E-2 substantial investment?
Yes.
Does it address marginality?
Yes.
Does it address E-2 employees?
Yes.
Should a consular filing use the current version of 9 FAM 402.9?
Yes.
Case-specific review
Apply the authority to the facts
A legal authority is useful only when it is matched to the correct classification, procedural posture, evidence, and current version of the law.
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