This is pretty close to the E2 Treaty Investor visa, which exists already. I have held one of them. Our investment was bringing over a company founded in the UK. The interesting thing was that the majority of the actual investment came from US investors. Then our accountant valued the company, based on the work we had done since the investment, to be significantly higher than what the investment was. This was submitted in the paperwork, and was accepted.

So my one data point says: a good US immigration lawyer and an accountant who understands how to value software companies does do the trick.

The E2 Treaty Investor:

Nationals of qualifying Treaty countries who have made a significant investment in the United States may qualify for E2 Treaty Investor status. Like the E1 visa, there is no set minimum level of investment which may qualify for E2 status, but the lower the investment the less likely one is to qualify. Again, the level of investment must be sufficient to justify the treaty national (or his/her employees) presence in the United States. The investment must be in an operating business – i.e. simply buying property or stocks and bonds does not qualify. Also, a substantial part of the investment must have been made before applying for E2 status.

Source: http://www.workpermit.com/us/investor_e1_e2.htm