A deposit counts if it is irrevocably committed—held in escrow to be released on approval, or non-refundable—rather than freely returnable. Fully refundable deposits show intent but not risk. The consular fee and any USCIS filing fee are separate and follow the official schedules.
Committed money counts; recoverable money does not
The at-risk requirement is about commitment, and a deposit is the first place it is tested. A deposit the seller must return on request at any time shows interest in the business but leaves the money in the couple's control. A deposit held in escrow under an agreement that releases it to the seller when the E-2 is approved and returns it only if the application fails is the arrangement consular guidance accepts as sufficiently committed, because the couple cannot simply change their minds. A non-refundable deposit is plainly committed. Keep the escrow agreement and the escrow agent's confirmation in the file. On the fee side, an E-2 application made at a consulate carries the State Department's application fee, and a change of status filed inside the United States carries the USCIS Form I-129 fee from the fee schedule, Form G-1055; neither is refunded on refusal, and neither is part of the investment.
Hypothetical example: a Canadian sign-fabrication owner pays a seller deposit, legal fees and three months of rent before applying. The first review classifies each payment by its contractual purpose and asks whether it is committed to the enterprise or remains freely recoverable. The escrow instruction, lease and bank trail settle that question. Fees paid to advisers may be real business expenses but do not automatically demonstrate capital exposed to the commercial venture.