IN THIS GUIDE · Understand a seller’s retained rights before relying on the purchase percentage
Start with the E-2 eligibility and application overview
Read retained rights in the whole agreement
In a hypothetical acquisition, the buyer owns most shares but needs the seller’s consent for hiring, pricing and major contracts until later payments are made. Identify which restrictions protect payment and which affect operational control. E-2 requires the applicant’s qualifying treaty nationality and at least 50% enterprise ownership by nationals of the relevant treaty country. Then establish the applicant’s actual development-and-direction authority; nationality ownership and control are related but distinct assessments.
Separate money committed from future payment promises
Trace the lawful origin and complete path of the funds, including financing and its security. Capital must be at risk and substantially committed relative to the actual cost of the business; there is no universal E-2 minimum. Funds secured against the enterprise’s assets need different treatment from qualifying personal financing. Qualifying investment-in-process and escrow arrangements may be available under their actual conditions, so neither an instalment label nor an unfinished closing decides the issue automatically.
Test the operation beyond the purchase agreement
The enterprise must be real and nonmarginal. Show present or future capacity to provide more than a minimal living for the investor and family, or the applicable significant economic contribution; projected future capacity generally should be realizable within five years of normal activity. E-2 does not require EB-5’s ten qualifying jobs. Use the actual seller accounts, proposed changes and available operating funds instead of assuming a purchase price proves business viability.
Coordinate the transaction with temporary status
The investor must intend to depart when E status ends. Canadian citizenship generally requires an E visa for this route; Canadian residence alone establishes neither treaty nationality nor a visa exemption. Resolve control and release conditions before relying on them in a filing, and reassess material changes. A signed acquisition document does not authorize the investor to begin US work before obtaining the applicable permission.
Confirm the investment is substantial and irrevocably committed
The investment must be substantial in relation to the total cost of purchasing or establishing the enterprise, judged proportionally rather than against a fixed figure. The enterprise must be a real, active and operating commercial undertaking, not a paper organization or a passive holding, and it must not be marginal. Distribution agreements often arrive with escrow terms, refundable deposits, minimum purchase commitments and revocation clauses. A reviewer asks who borrowed, who is liable, what secured the borrowing, and which charges belonged to the enterprise rather than the household. Treaty nationals must hold at least fifty percent of it, shown by the share register and the subscription documents, not by an intention to restructure later. Marginality asks whether the business will produce more than a minimal living for the investors, which an existing payroll of employees and a history of profit ordinarily answers. An employee of a treaty investor may qualify where the employee holds the same treaty nationality as the enterprise's owners and is coming to fill an executive or supervisory role, or to perform duties requiring skills essential to the enterprise's operations. For E-2, the funds must be committed irrevocably and exposed to commercial risk; an amount that remains freely recoverable normally does not perform the same function.
Sources reviewed 2026-09-08. This guide covers a preparation focus; it is not an individual eligibility assessment.