An often overlooked but vital element of the statute requires the applicant to have already invested monies into the enterprise or be in the active process of investing into the enterprise when the application for E2 status is made.

“[E2] solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital”

In other words, it is insufficient to merely have formed the intent to purchase or start a business. Under the wording of the statute it appears to be a fundamental pre-requisite that the applicants have committed themselves in some material way almost to the point of no return. According to the State Department: -

“[The] alien must be close to the start of actual business operations, not simply in the stage of signing contracts (which may be broken) or scouting for suitable locations and property. Mere intent to invest, or possession of uncommitted funds in a bank account or even prospective investment arrangements entailing no present commitment, will not suffice. “

As you can see this is a very hard threshold to satisfy and in truth the consular officer reviewing your case may take a less strict approach, but this should not be relied upon.

The State Department concluded that any contracts entered into by the applicant could be made conditional upon the issuance of the applicant’s visa provided that any assets used for the purchase of the business were held in escrow for release on the visa condition being met.

Some applicants may not be buying a going concern but rather they will be starting a business and building that up from scratch. Here, the applicant will be required to demonstrate that they have committed themselves as far as possible to satisfy the ‘actively in the process of investment’ requirement.

Commentary: As you can imagine most people find this requirement goes against every grain of common sense; to be required to commit so much time, money and energy into a venture that could come to naught if the visa application is denied is very hard to come to terms with.

The only rationale I can consider as to why the statute was drafted in this way was perhaps to ensure that only the most serious or committed applicants would apply and that having been granted the visa for that purpose the likelihood of the applicant not following through would be very slim.

The only advice that any attorney can reasonably give is for their client to go as far as they can, making sure that all contracts are conditional and that the funding monies should be held in escrow where possible.

E2 Visa - Buying A Business