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MERCIER · E-2 FIELD GUIDE

Does the loan still count toward the investment after the collateral swap?

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THE DIRECT ANSWER

It depends on what secures the new facility and on personal liability. Funds borrowed against the investor's own assets can form part of a qualifying E-2 investment; amounts secured only by the assets of the United States enterprise generally are not treated as the investor's capital at risk. Read the executed security documents before assuming either result.

Recalculate the qualifying total before filing

Rebuild the investment schedule in two columns: amounts already irrevocably committed to the enterprise, and amounts whose treatment depends on the new security package. If the borrowed portion drops out, decide whether additional personal funds, a different lender, or a smaller opening scope keeps the plan credible. Substantiality is judged against the cost of this particular business, so a change in either number matters. Ask counsel to confirm the analysis on the final documents.

Treaty nationality, at least 50% relevant national enterprise ownership, development and direction, and substantial lawful at-risk capital remain required, with no fixed universal minimum. The enterprise generally needs at least 50% treaty-country ownership, but meeting that nationality threshold does not by itself establish the applicant’s ability to develop and direct it. The E-2 enterprise must have treaty nationality, and the principal investor must possess the treaty-country nationality relied upon; Canadian residence or incorporation cannot substitute for citizenship.