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PONTIAC · E-2 FIELD GUIDE

Does a Pontiac buyer holding 60% of a U.S. drilling company satisfy the E-2 requirement to develop and direct it?

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THE DIRECT ANSWER

Usually, but not automatically. Fifty percent or more creates a presumption of control, which the shareholders' agreement can rebut if the minority partner holds vetoes over ordinary decisions or if unanimity is required. The officer reads the agreement, not only the share register.

A majority is a presumption that the agreement can defeat

The Foreign Affairs Manual explains that an investor who owns at least half of an enterprise is ordinarily considered to be in a position to develop and direct it, and that an investor with less than half may still qualify through operational control by other means. The converse also applies: a majority holder whose authority is constrained by contract may not be in that position. Provisions that concern consular officers include requirements for unanimous consent on operating decisions, a minority veto over hiring or spending within normal ranges, a deadlock mechanism that hands control to the minority, or a management agreement placing operations with someone else.

Ordinary minority protections — consent to selling the company, issuing new shares or changing the business fundamentally — do not defeat control. The 60% buyer should have the agreement drafted so that day-to-day direction, personnel decisions and ordinary capital spending are his, and should be prepared to explain any reserved matters. If the partner insists on broader vetoes, the structure may need to change before the application rather than after.