How can an EB-5 new commercial enterprise include E-2 investors?

E-2 investors do not count as U.S. workers, but they can absolutely be included if the investors have the requisite treaty nationality. E-2 and EB-5 can co-exist, but it must be done by an attorney who understands both and knows that they are very different. E-2 doe not have a minimum investment other than it must be substantial in relation to that type of business. Also, E-2s do not have a minimum number of jobs, but they do like to see U.S. job creation.

A direct EB-5 business may include E-2 investors. There are no minimums set for job creation and investment amount requirements for E-2 as long as E-2 investors independently qualify for their E-2 visa or status based on E-2 visa requirements.

A direct EB-5 project can have E-2 investors and EB-5 investors. There is no minimum investment requirement for E-2 investors. However, the E-2 investment must be substantial and proportional to establishing a business in the U.S. of the type chosen. The E-2 category does not have a new job creation requirement.

There is a distinction between the E-2 non-immigrant visa classification qualifications and the qualifications for an EB-5 immigrant visa. An E-2 first is based upon a treaty provision between the United States and the country of citizenship of the applicant. Under the provisions of the treaty, the applicant must make a "substantial" investment; thus, there is no minimum dollar amount required. Whether an investment is substantial depends upon the nature of the business, but normally it must be at least $150,000 or more to be viewed as a serious investment. An E-2 investor who qualifies could, by increasing the investment amount in a new enterprise that will hire at least 10 new U.S. workers, use that investment also to qualify under the EB-5 program for an immigrant visa. However, the E-2 investor must own a majority of the enterprise while an EB-5 investor does not need to own a majority or any particular amount.

It is not a violation of law to include E-2 investors in an EB-5 direct investment. Unlike an EB-5 investment, there is neither a minimum capital investment nor a minimum new jobs creation requirement in an E-2 non-immigrant visa program.

Yes it is possible. There are no minimum job creation requirement or minimum capital investment requirement for E-2; however, USCIS requires that the investment be "substantive" and that there is a plan for revenue and jobs for U.S. residents/citizens, so you must show a solid business plan to justify all of these elements along with the required supporting documents.

The question is not clear, but if E-2 investor invested enough money and created enough jobs, then it can also qualify for EB-5.

The EB-5 NCE certainly can include E-2 investors. There is no minimum investment amount or job creation requirement for E-2, but there are requirements that: the E-2 investment must be substantial, i.e. high proportionality to the total project cost/investment; and that the investment not be marginal. A marginal enterprise does not have the present or future capacity to generate more than enough income to support the E-2 investor or create a positive economic impact (i.e. create and maintain at least some jobs). Keep in mind that almost all direct EB-5 investors, assuming they are citizens of countries with investment treaties with the United States, will qualify for E-2 treaty investor status if they own at least 50 percent of the commercial enterprise (or otherwise can show ability to direct and develop the enterprise). But not all E-2 investors will qualify for EB-5.