A purchase agreement can make or break an E-2 Investor Visa case. If it is drafted without E-2 standards in mind, it may signal that the investment is not yet real, not sufficiently committed, or not properly structured.
This article explains how to prepare a purchase agreement that supports an E-2 visa USA application, with practical drafting tips, common pitfalls, and deal structures that immigration officers tend to understand.
Why the Purchase Agreement Matters for an E-2 Visa
An E-2 visa case typically rises or falls on whether the investor has made an “active” investment that is “at risk” in a real operating enterprise. When the E-2 strategy involves buying an existing business, the purchase agreement becomes the central document that shows what they are buying, what they are paying, and whether they are truly committed.
Adjudicators look for clarity on key questions. Is the business real and operating. Is the investor acquiring enough control. Is the money irrevocably committed, subject only to a visa-related condition. Is the structure consistent with the investor’s claimed role as an owner and executive.
The agreement also needs to match the broader E-2 filing record. If the purchase agreement says one thing and the business plan, wire receipts, escrow instructions, or corporate documents say another, the case can invite doubts.
For reference, the legal framework is described by USCIS policy guidance on E-2 treaty investors and by Department of State guidance in the Foreign Affairs Manual section on E visas. A purchase agreement should be drafted so it supports the requirements described there, without overstating what the deal does.
Core E-2 Standards the Purchase Agreement Must Support
A strong agreement is not “immigration language.” It is a normal, enforceable business contract that happens to align with E-2 requirements. In practice, that means the agreement should help demonstrate the following core points.
They Are Buying a Real, Operating Enterprise
The agreement should clearly identify the business being purchased. That includes the legal entity name, state of formation, and what assets or equity interests are being transferred. If the business has a storefront, equipment, employees, or ongoing client contracts, the agreement should make the transaction concrete and verifiable.
If it is an asset purchase, it should specify which assets are included, such as equipment lists, intellectual property, leases, customer lists, phone numbers, websites, inventory, and goodwill. If it is a stock or membership interest purchase, it should identify what percentage is being purchased and what rights come with it.
They Will Have Control
The E-2 investor must generally show they will direct and develop the enterprise. Purchase agreements should avoid ambiguity on control. In many cases, control is shown through majority ownership, but there are other structures that can work, such as 50 50 ownership with clear negative control rights.
The agreement should state the percentage acquired and include provisions that match corporate governance documents. If they claim they will own 100 percent, the contract should not quietly allow the seller to retain veto rights that undermine control. If the seller is staying as a minority owner, the agreement should clarify roles, voting rights, and decision-making authority.
The Investment Is At Risk and Irrevocably Committed
This is where E-2 cases often run into trouble. The purchase agreement must reflect that funds are actually committed to the deal, not merely promised someday. Common E-2 compliant structures include a deposit and an escrow arrangement where the funds will be released upon visa approval, or where the buyer loses the funds if they walk away for reasons other than the visa condition.
USCIS and consular officers often want to see that the investor has taken meaningful financial steps. A purchase agreement that is purely contingent and involves no financial commitment can signal that the investment is speculative.
The Business Is Not Marginal
The purchase agreement is not a business plan, but it can still support the non-marginality narrative by describing an operating enterprise with real revenue, employees, or infrastructure. If the agreement includes ongoing employment obligations, transfer of staff, or operational handoff requirements, it can help show the business is more than a vehicle for self-employment.
Choosing the Right Deal Structure: Asset Purchase vs Equity Purchase
The purchase agreement should reflect a structure that fits the business reality and the E-2 strategy. There is no single correct approach, but the drafting needs to be internally consistent.
Asset Purchase Agreements
An asset purchase can be simpler when the buyer wants to avoid unknown liabilities. It can also be clearer for E-2 purposes if the investor is effectively purchasing an operating platform and starting fresh with a new entity. Still, the agreement must show the buyer is acquiring what makes the enterprise functional.
Key drafting points include the list of assets, the assignment of lease, transfer of licenses when possible, treatment of employees, and non-compete or non-solicitation terms. The contract should avoid describing the transaction as merely purchasing “equipment” if the E-2 plan is to run a full operating business.
Stock or Membership Interest Purchase Agreements
Equity purchases can be clean for E-2 when the investor is buying into an existing company that already holds contracts, licenses, staff, and a lease. The agreement should clearly show the investor’s percentage of ownership and the governance rights after closing.
It should also address what happens to existing bank accounts, liabilities, and tax filings. If the investor is stepping into a functioning operation, adjudicators often expect to see that the business continues seamlessly.
Key Clauses That Help a Purchase Agreement Meet E-2 Standards
Clauses should be drafted to make the commitment real, measurable, and tied to a lawful visa strategy. The agreement does not need to read like an immigration memo. It should read like a business contract that makes sense commercially.
Clear Purchase Price and Payment Terms
The agreement should specify the total purchase price and how it will be paid. If there is a deposit, it should be stated clearly, including when it is due and whether it is refundable. If there is seller financing, it should be explained, including interest rate and payment schedule, but the investor should be careful not to rely too heavily on debt that is secured by the enterprise’s assets.
If the E-2 narrative is that they invested a specific amount, the payment terms should allow that amount to be traced through wires, escrow receipts, and bank statements. Vague language like “to be paid later” can weaken the record.
Escrow Provisions Designed for E-2
Escrow is a common tool in US immigration through investment strategies because it can show commitment while protecting the investor if the visa is denied. The escrow provisions should be precise. They should identify the escrow agent, the escrow account, what funds will be deposited, and when the funds will be released.
The most important point is the condition for release. Often, the release is tied to E-2 visa approval. If the visa is denied, the funds return to the investor. That can still be compliant if the investor has already committed the funds to escrow and the only contingency is visa approval.
The agreement should avoid broad “buyer discretion” contingencies that allow the investor to back out for almost any reason and still receive a refund. An overly flexible contingency can make the investment look like an option contract rather than a committed investment.
Visa Contingency Clause That Is Narrow and Specific
A visa contingency should be drafted carefully. The clause should typically specify that closing is conditioned on approval of the E-2 visa application for the buyer, and define what counts as approval. It should also address timing, such as how long the parties will wait for a decision, and what happens if the buyer receives a request for evidence or administrative processing.
A well-drafted clause can keep the deal commercially fair while still supporting an E-2 visa USA case. A poorly drafted clause can make the investment look non-committed.
Closing and Handoff Obligations
The agreement should describe the closing process, including transfer of possession, keys, accounts, vendor relationships, and training. If the seller will provide transition assistance, it should be written as a limited service arrangement, not as ongoing operational control by the seller.
If the seller remains involved, the contract should avoid language implying the investor is passive. The E-2 investor is expected to direct and develop the enterprise, so the handoff should reinforce the investor’s management role.
Representations and Warranties That Support Credibility
Standard representations and warranties help show that the deal is real and professionally structured. These include representations about financial statements, tax compliance, pending litigation, ownership of assets, and authority to sell.
While these are not “E-2 requirements,” they reduce the risk that the E-2 record looks informal or improvised. They also help the investor avoid buying a business with hidden problems that could later undermine the E-2 business plan.
Allocation of Assets and Inventory Valuation
In an asset purchase, allocation matters. The agreement can attach schedules that value inventory, equipment, and goodwill. This can help the E-2 file explain what the investor is paying for and why the price is commercially reasonable.
If the purchase price is far above market without explanation, it can raise questions. Clear schedules, a broker valuation, or a summary of how the price was negotiated can help the transaction look credible.
Non-Compete and Non-Solicitation Terms
A buyer purchasing goodwill often needs protections that the seller will not immediately compete. Reasonable non-compete and non-solicitation clauses can help show the buyer is purchasing a real enterprise and not just a shell.
Terms should be reasonable under the relevant state law. Overly aggressive restrictions can become a dispute risk and may not be enforceable.
Employment and Contractor Transfers
If the business has staff, the agreement should address whether employees will be offered continued employment and whether independent contractor relationships will be assigned or re-papered. This supports the idea of an operating enterprise with continuity.
For E-2, it also helps reinforce that the business can support jobs and growth, which ties into the broader narrative of a non-marginal enterprise.
How to Document the “At Risk” Investment Without Overpromising
E-2 filings often include the purchase agreement alongside evidence of wire transfers, escrow confirmations, bank statements, invoices, and lease commitments. The agreement should be written so it aligns with what the investor can actually document.
If the agreement says that $150,000 has been paid, then the file should contain proof that $150,000 left the investor’s account and reached the proper recipient or escrow. If it says a lease has been assigned, the file should include the landlord’s consent or the executed assignment if available.
It is often better for the agreement to be accurate and supported than ambitious and hard to prove. Overstatement can create credibility issues across the entire investment visa USA package.
Common Purchase Agreement Mistakes That Trigger E-2 Problems
Many E-2 cases are delayed or denied due to avoidable drafting issues. These are some of the most common.
- Too many contingencies that allow the buyer to back out for broad reasons while keeping the money safe. This can make the investment look not committed.
- No proof of payment mechanics, such as missing escrow instructions or unclear deposit deadlines.
- Unclear ownership and control, especially when buying less than 100 percent or when the seller retains unusual rights.
- Misalignment with corporate documents, such as an agreement stating 80 percent ownership while the operating agreement shows something different.
- Buying a non-operating shell without clear operational assets, leases, staff, or contracts. This is risky unless paired with substantial startup execution steps.
- Price that looks unrealistic without an explanation, which can cause scrutiny of whether the transaction is genuine.
Special Situations: Partial Buy-Ins, Earnouts, and Seller Financing
Not every deal is a clean 100 percent purchase. Many investors acquire a portion, negotiate earnouts, or use seller financing. These can work, but the agreement must be drafted so E-2 requirements are still supported.
Partial Ownership Purchases
If they are buying less than a majority, the agreement should pair with governance documents showing how they will direct and develop the business. Control can be shown through specific voting rights, management appointment authority, or other mechanisms. The contract should not suggest they are a passive partner.
Earnouts
Earnouts based on future performance can be fine commercially, but E-2 cases need a clear committed investment now. If the purchase price is heavily backloaded, the agreement should still show meaningful funds committed at or before closing, and the business plan should explain how the company will operate immediately.
Seller Financing
Seller financing is common in small business purchases. Still, E-2 officers often focus on how much of the purchase is funded by the investor’s own capital that is at risk. If a large portion is financed, the agreement should clearly state what the investor has already paid, what is personally liable, and whether the loan is secured by the investor’s assets or by the enterprise. Overreliance on secured debt can weaken the “at risk” story.
Aligning the Purchase Agreement With the Rest of the E-2 Case
A purchase agreement is just one piece of an E-2 filing. It should match the rest of the evidence packet so the narrative is clean and consistent.
Key documents that should align include the business plan, corporate formation documents, stock certificates or membership interest schedules, bank statements and wire confirmations, escrow instructions, commercial lease documents, and any transition services agreements.
It also helps if the business plan describes the transaction in the same terms as the agreement. If the plan says the investor purchased assets but the agreement is an equity deal, that inconsistency can create unnecessary questions.
Practical Drafting Tips That Strengthen E-2 Readiness
These practical steps often make the difference between an agreement that merely transfers a business and one that supports US investment immigration goals.
- Use defined terms consistently for buyer, seller, business, assets, and closing date.
- Attach schedules for key assets, inventory counts, equipment lists, and assigned contracts when possible.
- State the deposit and escrow steps plainly, including exact dollar amounts and deadlines.
- Keep the visa contingency narrow and avoid adding unrelated “outs” that make the deal look optional.
- Address operational continuity with training, transition support, and transfer of vendor relationships.
- Confirm who controls the company after closing in language that matches the operating agreement or bylaws.
Questions the Investor Should Ask Before Signing
Before signing, they should pressure-test the agreement using E-2-specific questions. These questions often reveal issues early enough to fix them.
- Does the agreement show that the investor’s funds are committed and at risk, with evidence they can document.
- Is the only major contingency related to the E-2 visa, and is it written narrowly.
- Does the agreement clearly show control and align with the corporate governance documents.
- Does it describe a business that is operating or clearly capable of immediate operation after closing.
- Will the agreement make sense to a reviewer who has never met the parties and has only the paper record.
When to Involve an Immigration Lawyer and a Business Attorney
An E-2 purchase agreement sits at the intersection of immigration and transactional law. A business attorney typically focuses on liability, price, and risk allocation. An immigration attorney focuses on how the terms will be interpreted under E-2 visa requirements. When both perspectives are aligned, the investor reduces the chance of signing a deal that is safe commercially but weak for E-2, or strong for E-2 but risky as a business purchase.
It is also wise to coordinate with an escrow agent and, when appropriate, a qualified accountant. Tax allocation and closing mechanics may affect how clearly the investment can be documented.
Helpful, Trustworthy References for E-2 Rules
For readers who want to cross-check the standards discussed above, these official sources are useful starting points.
- USCIS Policy Manual, E-2 Treaty Investors
- U.S. Department of State Foreign Affairs Manual, E Visa Guidance
- U.S. Small Business Administration, business buying and planning guidance
A purchase agreement that meets E-2 standards is not about adding immigration buzzwords. It is about creating a clear, enforceable transaction that shows real commitment, real control, and a real business. What part of the deal feels least certain right now, the money trail, the control terms, or the closing timeline, and how could the agreement be adjusted so the paper record answers that question immediately.
Please Note: This blog is intended solely for informational purposes and should not be regarded as legal advice. As always, it is advisable to consult with an experienced immigration attorney for personalized guidance based on your specific circumstances.