IN THIS GUIDE · A closing date conditional on third-party consent
Start with the E-2 eligibility and application overview
List the conditions that still control closing
For each condition—lease assignment, franchisor approval, permit, or supplier contract—identify the decision-maker, required records, and treatment of funds if consent is refused. In this hypothetical example, also compare deadlines: requiring one approval before another may block closing. Resolve conflicting obligations using the actual documents. Put each unresolved condition beside the person who can satisfy it and the date by which it matters. Then decide whether the business can make a binding expenditure before that condition is met, or whether the agreement needs a carefully drafted visa-contingent structure. Commercial caution and immigration evidence must be read from the same signed terms.
Test whether the capital is genuinely committed
Committed capital is not the same as a balance sitting in an account. Read what the escrow instructions actually say: which events release funds to the seller, which return them to the buyer, and whether the buyer keeps a unilateral right to walk away. A refundable deposit is neither automatically disqualifying nor automatically qualifying. The treatment depends on the specific revocation terms, and that review belongs with counsel reading the signed instrument. Trace the lawful source and path of each amount through bank, sale, loan, or gift records. The decision is not just whether a transfer cleared; it is whether the investor has surrendered control of funds in a way that creates real exposure if the enterprise fails. Do not describe a line of credit as money already invested.
Show the operating substance behind the consent
Consent risk should not crowd out the substance of the enterprise. Assemble what the business will actually do after closing: premises, equipment, staffing plan, the customer base being acquired, and the operating budget for the first months under new ownership. Non-marginality can rest on present income capacity beyond a minimal living for the family, or on documented future capacity or significant economic contribution. Prelaunch commitments can count when they are credible and binding. Use a costed operating plan to show why the amount is substantial for this enterprise and why it will not be marginal. The business must be real and operating, and the investor is required to develop and direct it. Forecasts should identify assumptions, customers, staffing, and the records that could later confirm or disprove them.
Choose the filing sequence deliberately
Decide the sequence with the reviewer rather than defaulting to waiting for closing. Some conditional structures support a filing backed by escrow evidence; others need more before the enterprise looks real and operating. Funding records can be supplemented after a first review, so an incomplete trail is a task rather than a verdict. Set what the consenting party must deliver, what the seller must produce, and what triggers a fresh assessment. Revisit the assessment if a condition changes, a refund right expands, or ownership shifts. Relevant treaty-country nationals generally must collectively hold no less than half of the enterprise, and the investor needs qualifying control. Hypothetical example: a mobile veterinary-imaging business has paid for a vehicle and scanning unit but can cancel its service contract without loss; the decision is whether the committed items and the still-revocable contract together support the proposed filing date.
Sources reviewed 2026-09-07. This guide covers a preparation focus; it is not an individual eligibility assessment.