E-2 visa: how to prove your investment is at risk

An E-2 visa needs more than money in the bank. Your capital must be irrevocably committed to the business and subject to partial or total loss if the business fails. That is the test in the Code of Federal Regulations (8 CFR), at 8 CFR 214.2(e)(12). Mere intent to invest, or uncommitted funds sitting in a bank account, will not suffice. That is the State Department’s own wording in the Foreign Affairs Manual (FAM), at 9 FAM 402.9-6(B)(e). Escrow can work, because funds held in escrow for release when the visa is issued still count as a solid commitment. There is no set dollar minimum for an E-2 investment. This guide explains the at risk test, how escrow works, and how officers trace the source of your funds (current to October 2026).

Key takeaways

• Your capital must be irrevocably committed and subject to loss. If the money can come back to you untouched when the business fails, it is not an investment for E-2 purposes.
• Money sitting in a bank account does not count. Signing contracts or scouting locations does not count either. You must have entered into an agreement and committed funds.
• Escrow counts when the purchase is conditioned on the visa and the funds are held in escrow for release once the condition is met.
• Loans secured by the business itself never count, even if some personal assets are also pledged. Loans secured by your own personal assets, or unsecured personal loans, may count.
• There is no set dollar minimum. The officer judges your investment against the total cost of the business, not against a fixed number.

What does at risk mean for an E-2 investment?

The regulation defines an investment as the treaty investor placing capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit. Three parts of that definition do the work. First, you must be in possession of and have control over the capital invested or being invested. Second, the capital must be subject to partial or total loss if investment fortunes reverse. Third, the capital must be your unsecured personal business capital or capital secured by personal assets, and it must be irrevocably committed to the enterprise. You carry the burden of proving that commitment (8 CFR 214.2(e)(12)).

In short: if the business fails, you must be able to lose the money.

The Foreign Affairs Manual adds the practical line officers use. To be in the process of investing, the funds or assets must be committed to the investment, and the commitment must be real and irrevocable. You must have entered into an agreement and committed funds, and you must be close to the start of actual business operations (9 FAM 402.9-6(B)(d) and (e)).

What Does Not Count as an E-2 Visa Investment?

• Mere intent to invest, or possession of uncommitted funds in a bank account, or prospective investment arrangements that carry no present commitment. The Manual says this will not suffice (9 FAM 402.9-6(B)(e)).
• Simply being at the stage of signing contracts, which may be broken, or scouting for suitable locations and property. That is not yet an investment.
• Funds that are not subject to partial or total loss if business fortunes reverse. If the money is safe no matter what happens to the business, it is not an investment in the sense the law means (9 FAM 402.9-6(B)(c)).
• Loans or mortgages secured by the assets of the enterprise. These cannot count, because there is no element of risk, and this holds even if some personal assets are also used as collateral.
• Non profit activity. The investment must be for profit, so a non profit organization is excluded (9 FAM 402.9-6(C)).
• Lease and rent payments beyond one month at a time. Lease payments count only in an amount limited to the funds devoted to that item in any one month. The market value of leased equipment does not count, and neither does the annual rental cost unless it has been paid in advance (9 FAM 402.9-6(B)(f)).

Can you use escrow for an E-2 investment?

Escrow is the tool most franchise buyers use to solve the timing problem. You want to commit the money before the visa is issued, but you do not want to lose it if the visa is refused. The Manual answers this directly. The purchase of a business that is conditioned upon the issuance of the E-2 visa may still qualify as an irrevocable investment. Despite the condition, the purchase would constitute a solid commitment if the assets to be used are held in escrow for release or transfer once the condition is met (9 FAM 402.9-6(B)(d)).

The regulation says the same in its own words. You may use any legal mechanism available, such as placing invested funds in escrow pending admission in, or approval of, E classification, that would not only irrevocably commit funds to the enterprise, but might also extend personal liability protection to you if the application is denied (8 CFR 214.2(e)(12)). Note the careful wording. The regulation says escrow might extend personal liability protection if the application is denied. It does not promise that escrowed funds are automatically returned on a denial. Do not plan around a return promise the official sources do not make.

In short: escrow can lock your money into the deal while the visa is decided.

For escrow to count, the escrow must be tied to the visa outcome as the release condition, and you must have entered into a binding agreement and committed the funds. The commitment must be real and irrevocable. The official sources do not name a required type of escrow holder, so do not treat any one holder type as a rule.

How do officers trace the source of your funds?

The officer will ask where the money came from, and you must show possession and control of the invested capital. The Manual lists the sources it accepts: capital assets or funds from savings, gifts, inheritance, contest winnings, loans collateralized by your own personal assets, or other legitimate sources. The source need not be outside the United States. The source must not be the result of illicit activities (9 FAM 402.9-6(B)(b)). Note that inheriting a business itself does not count as an investment.

The Manual gives the officer wide room here. It says the officer may request whatever documentation is needed to properly assess the source of the funds. It does not give an itemized checklist of documents. So do not treat any one document, such as six months of bank statements or a property sale deed, as an official requirement. Bring the papers that prove your own trail, and expect the officer to ask for more if the trail has gaps. Loans follow the same risk rule as above. Only loans secured solely by your personal assets, or unsecured personal loans, count. Debt secured by the business never counts, even with personal collateral mixed in.

In short: show where every dollar came from, step by step.

Money spent on equipment and inventory on hand counts. Goods and equipment transferred to the United States, such as factory machinery shipped to start or enlarge a plant, may count, but you must show they will be or are being used in an ongoing commercial enterprise, and for investment and not personal purposes (9 FAM 402.9-6(B)(g)). Rights to intangible or intellectual property may count to the extent their value can reasonably be determined, by market value, by current contracts, or by expert opinion if no market value exists (9 FAM 402.9-6(B)(h)).

What is a substantial E-2 investment?

A substantial amount of capital is an amount that is substantial in relationship to the total cost of buying an established enterprise or creating the one under consideration, sufficient to ensure your financial commitment to running it, and of a magnitude to support the likelihood that you will successfully develop and direct it. That is the three part test in 9 FAM 402.9-6(D)(b) and 8 CFR 214.2(e)(14).

In short: the cheaper the business, the bigger the share of its cost you must put in.

The Manual states it plainly. No set dollar figure constitutes a minimum amount of investment to be considered substantial for E-2 visa purposes. The proportionality test works as an inverted sliding scale. The lower the cost of the business, the higher a percentage of investment is required. A highly expensive business would require a lower percentage of qualifying investment. There are no bright line percentages (9 FAM 402.9-6(D)(c)).

The Manual gives two illustrative examples only. An investment of 100 percent of a $100,000 startup cost would normally qualify. An investment of $10 million in a $100 million business may be considered substantial, based on the sheer magnitude of the investment itself. Treat both numbers as examples, not thresholds. The widely repeated idea that $100,000 is the expected E-2 investment is practitioner convention, not an official figure. No official source states it.

What is a marginal enterprise?

A marginal enterprise is one that does not have the present or future capacity to generate enough income to provide more than a minimal living for you and your family. An enterprise that cannot do that now, but has a present or future capacity to make a significant economic contribution, is not a marginal enterprise. The projected future capacity should generally be realizable within five years from the date you commence normal business activity (9 FAM 402.9-6(E) and 8 CFR 214.2(e)(15)). Your business plan should show that path, with numbers the officer can follow.

In short: the business must earn more than just enough to live on, now or within five years.

The 9 FAM 402.9 Checklist: Nine Tests for E-2 Visa Approval

Under 9 FAM 402.9-6(A)(a), the officer must determine nine things when deciding an E-2 application. The at risk test is only the third one, so a file that proves the money can still fail on the other eight.

1. The requisite treaty exists.
2. You or your business hold the nationality of the treaty country.
3. You have invested or are actively in the process of investing.
4. The enterprise is a real and operating commercial enterprise.
5. Your investment is substantial.
6. The enterprise is more than a marginal one solely for earning a living.
7. You are in a position to develop and direct the enterprise.
8. If you are an employee, you are headed to an executive or supervisory position, or you hold skills essential to the firm’s operations.
9. You intend to depart the United States when your E-2 status ends.

Mistakes you should not make to avoid a E-2 Visa Refusal?

• Leaving the money in the bank and calling it an investment. Uncommitted funds do not count, no matter how large the balance.
• Counting a loan secured by the business. Enterprise secured debt never counts, even if you also pledged personal assets.
• Counting the full lease value. Only one month of lease payments at a time counts, unless the rent has been paid in advance.
• Treating $100,000 as the required amount. It is an example in the Manual, not a threshold. The officer measures your investment against the total cost of your business.
• Assuming escrow guarantees a refund if the visa is refused. The regulation says only that escrow might extend personal liability protection. Build your escrow terms with that in mind.
• Leaving gaps in the money trail. The officer may request whatever documentation is needed to assess the source of your funds, so keep every link in the chain.

Frequently asked questions about proving your E-2 investment is at risk

Official sources

• USCIS, E-2 Treaty Investors, capital at risk, substantial investment, marginal enterprise, stay and family rules, checked October 2026.
• U.S. Department of State, Foreign Affairs Manual, 9 FAM 402.9, Treaty Traders, Investors, and Specialty Occupations, E Visas, current version CT:VISA-2190, February 17, 2026, checked October 2026.
• 8 CFR 214.2(e), Treaty traders and investors, the investment, substantial, and marginal enterprise tests, read on the Cornell LII eCFR text, checked October 2026.

Start with the free check that tests whether your plan fits the E-2 rules before you commit to a brand: E-2 visa eligibility check. Read the full franchise route next: E-2 franchise visa.

Amir Ismail, RCIC #R412319, is the founder of Amir Ismail & Associates, which helps investors plan their E-2 applications.