Describe it as unassigned and explain the required consent. A seller’s existing contract is not automatically an enforceable right of the buyer.
Assess the enterprise after the proposed closing
Identify which assets and rights transfer unconditionally and which depend on another party. Explain the effect on revenue, staffing and operations if consent remains outstanding. The E-2 analysis needs the real enterprise and commitment, alongside treaty nationality and the investor’s ability to develop and direct it. Do not silently use the most favorable commercial scenario as established fact.
List each asset, cancellation right, payment trigger, and risk of loss in an obligation schedule. Hypothetical example: a mobile hearing-test service buyer owns equipment but licence transfer remains pending. The agreement, regulator correspondence, and fallback plan show the enterprise that actually exists. Test nationality, ownership, funding, and operating authority before assuming future revenue. E-2 capital must be committed beyond easy recall and exposed to commercial loss; the investor must develop and direct a real non-marginal enterprise. Do not treat an optimistic business explanation, a later-created letter, or a family arrangement as proof of a missing eligibility fact.