It is relevant but should be assessed with the actual control and decision rights. The treaty nationality, investment and enterprise requirements must also be met.
Read an actual disagreement scenario
Ask who would decide a disputed budget or management appointment under the agreement. Identify retained seller or lender rights. Bring the clauses to review rather than assuming a familiar ownership percentage answers every question. The commercial parties should confirm the arrangement that will actually take effect.
Nonmarginality concerns capacity beyond a minimal living for the investor and family or significant economic contribution; projected capacity should generally be realized within five years of normal business activity. What causes difficulty is a structure where somebody else in fact runs the business, whether a hired general manager with full authority and an absentee owner, or an arrangement so heavily managed by the franchisor that the buyer supplies capital and little else. The capital must be irrevocably committed and at risk in the U.S. enterprise, so intercompany arrangements that leave funds recoverable, or that route money as a fee rather than a commitment, have not met it however substantial the group's overall resources.