IN THIS GUIDE · Resolving disputed intellectual-property rights in an E-2 business purchase
Start with the E-2 eligibility and application overview
Identify the right the enterprise actually needs
Owning a business name, holding a software license and owning the underlying intellectual property are different arrangements. Describe the software’s function in the operation, the rights being transferred and any limitations. Commercial counsel should review the disputed rights; an immigration application cannot settle ownership between the seller and a third party.
Connect operational access to the investment case
If the enterprise cannot serve customers without the disputed system, a high purchase price does not resolve readiness. Examine lawful alternatives, replacement costs and how the uncertainty affects the business plan. E-2 requires substantial committed capital in a real commercial enterprise that the investor develops and directs, not simply ownership of a contested asset.
Keep the source of funds separate from the asset dispute
Document how purchase funds were lawfully obtained and transferred even while the commercial dispute is being resolved. Clear funding does not prove the seller has transferable software rights, and a valid license does not establish the investor’s source of money. Organize these as separate evidence questions so neither obscures the other.
Decide which commitments can follow clarification
Review proposed purchase conditions, licenses and interim access before committing to the transaction. Contract terms affect both commercial protection and whether capital is genuinely committed and at risk. Do not assume every refundable arrangement qualifies. Check treaty nationality, ownership and the enterprise’s non-marginal capacity alongside the rights issue rather than treating one successful negotiation as complete E-2 eligibility.
The purchase agreement’s disclosure schedules are where a dispute lives
Sale documents keep their problems in the schedules. An asset or share purchase agreement carries a disclosure schedule against each representation, and a seller who has warranted clean title to software will usually have qualified that warranty somewhere in those pages. Read the intellectual-property schedule, the litigation and claims schedule, and the list of material contracts together. A dispute absent from the representations but present in the litigation schedule tells you the seller knows about it and has chosen where to put it. Ask for the schedules in executed form, dated and initialled, rather than a summary prepared for buyers. Where a seller declines to disclose a schedule before signing, that refusal is information about the transaction, and it should shape the offer rather than be set aside as procedure.
Escrow, holdback and what commitment looks like on paper
Deal structures designed to protect a buyer can work against the investment requirement, so the two purposes need reconciling before signing. An escrow returning funds if the rights dispute is not resolved, a holdback released on a condition, or a price-adjustment mechanism each keeps money within the buyer’s reach. E-2 asks that capital be irrevocably committed and genuinely at risk, and money a contract will return on a stated event is harder to describe that way. The escrow agreement itself is the record to read: who instructs release, on what event, and whether any party may unilaterally recall the funds. Commercial protection and immigration characterisation pursue different objectives, and a structure serving one may quietly defeat the other. Raise both with counsel before the terms are fixed.
Sources reviewed 2026-09-07. This guide covers a preparation focus; it is not an individual eligibility assessment.