IN THIS GUIDE · Explain the actual control and release conditions on investment funds
Start with the E-2 eligibility and application overview
Follow the transaction beyond the bank transfer
Hypothetical example: funds move to an account associated with a purchase but remain freely withdrawable. Explain the actual legal obligations and access. The account’s label and currency do not alone establish investment at risk or sufficient commitment.
Read genuine escrow conditions
Properly structured visa-contingent purchase escrow can be relevant. Distinguish that arrangement from a mere intention to buy or unrestricted reserved funds. Do not assume all conditional transactions qualify or that every acquisition must close unconditionally before review.
Apply the whole enterprise test
The principal needs qualifying treaty nationality and development and direction, with generally at least 50% relevant treaty-national enterprise ownership. Capital must be lawful, substantial and at risk in a real nonmarginal enterprise. There is no universal fixed minimum.
Explain financing and operating capacity
Identify source and path and any security for borrowed funds. Enterprise-secured debt is not qualifying investment capital; personally secured or unsecured loans need their own assessment. Explain actual cost and capacity beyond minimal living for the investor and family or significant economic contribution. The enterprise-asset exclusion also applies when the loan has mixed enterprise and personal collateral.
Explain enterprise nationality and nonmarginality precisely
The enterprise generally must be at least 50% owned by nationals of the relevant treaty country; the applicant’s passport alone does not establish enterprise nationality. Nonmarginality includes capacity to provide more than a minimal living for the investor and family, with the alternative of a significant economic contribution. Apply those conditions to the real operating proposal rather than importing EB-5’s capital amounts or ten-job rule into E-2. Projected future capacity should generally be attainable within five years of normal business activity. Development and direction may be shown by at least 50% ownership or operational control through a managerial position or another corporate device. The applicant must intend to depart when E status ends.
Ownership at fifty percent still has to produce control
Owning the company does not by itself permit the investor to perform work in the United States; the E-2 role is to develop and direct the enterprise, and lawful status governs what any person may do. The usual approach is an escrow that releases to the seller on visa issuance and returns to the buyer if the visa is refused; this is accepted as irrevocable commitment when the only condition is the visa. Substantiality compares what the investor has committed with the total cost of establishing this franchise territory, and a lower-cost business needs a higher proportion. Proceeds from the equipment auction should therefore move into the transaction, into purchased assets, or into an escrow whose release conditions are outside the buyers' control. Non-marginality may be established through the applicable income-capacity or significant-economic-contribution basis; the reviewer needs support for the proposed enterprise rather than a categorical claim that one customer is always enough or never enough. If a U.S. partner will hold a share, the treaty-nationality ownership must still reach at least fifty percent. E-2 requires that the capital be irrevocably committed and genuinely at risk, and that the enterprise be more than marginal, so a plan leaving the business unable to operate answers neither point well.
Sources reviewed 2026-09-07. This guide covers a preparation focus; it is not an individual eligibility assessment.