Nationality
The E-1 and E-2 Treaty Visas are available only to “nationals” of countries that have signed individual treaties of friendship, commerce and navigation with the United States. This page looks into the finer points of this requirement.
Why nationality?
Throughout this website, we have called the E-1 and E-2 visas “Treaty Visas” for a very good reason. They only exist in U.S. immigration law because the United States has entered into individual treaties with over 80 countries in the world, under which it (as well as the other party) is obligated to permit the entry of “traders” and “investors” who are nationals of the other treaty party. The following language is from the treaty between the U.S. and the Republic of Korea:
1. Nationals of either Party shall be permitted to enter the territories of the other Party and to remain therein: (a) for the purpose of carrying on trade between the territories of the two Parties and engaging in related commercial activities; (b) for the purpose of developing and directing the operations of an enterprise in which they have invested, or in which they are actively in the process of investing, a substantial amount of capital; and (c) for other purposes subject to the laws relating to the entry and sojourn of aliens.
The various categories that must meet the nationality requirement
While the above-quoted treaty only refers to “nationals,” without saying much more, the legislation and regulations of the United States look at the nationality of four different kinds of entities:
–the entity or business which is the “treaty trader” or “treaty investor;”
— the owner or owners of the “treaty trader” or “treaty investor;”
–the manager or director of the “treaty trader” or “treaty investor;”
–key employees of the “treaty trader” or “treaty investor.”
You may be questioning already why we are distinguishing between the entity that is the “treaty trader” or “treaty investor,” on the one hand, and its owner or owners on the other. They can certainly be the same thing. In English, we call a personally owned business a “sole proprietorship” when there is only one owner, or a “partnership” when there is more than one . However, we are allowing for the possibility that you are bringing a business from your home country to the United States and that this business is a corporation or similar entity.
This is usually the case for a treaty trader already engaged in international trade with the U.S. People don’t often engage in international trade as individuals. (But they might, if they are, say, a small service company.)
On the other hand, while statistically treaty investors are usually individuals, there may be cases in which a foreign corporation is the entity making the investment.
Either way, if the entity involved in the “trading” or “investing” is not an individual but rather some kind of a corporate entity, then the nationality test must be applied to it as well.
All four categories must have the same nationality
Visas are distributed to individuals, not corporations, so in this case, think of the E-1 or E-2 visa being issued either to the owner(s), or director/manager(s), or key employee(s) of the treaty trader or investor.
All of these categories must have the same nationality as the treaty trader or investor itself. To give an example:
Thailand, Mexico and France all have the relevant treaty with the United States. In this example the treaty trade or investor is a national of Mexico: the manager is French; and a key employee is Thai. The French manager and the Thai employee may not be issued a visa.
because they do not possess the nationality of the Mexican treaty trader or investor.
Please do not assume that every owner, manager and key employee must possess the same nationality as the treaty trader or investor. Only those who wish to receive the E-1 or E-2 visa.
Rule for determining the nationality of individuals
Generally, there isn’t any difference between nationality and citizenship. The great majority of most people are citizens of only one country. This is the same country that issues them their passports.
There are two complicating circumstances: dual citizenship, and a recent change of citizenship. If either of these apply to you, please speak with us.
NOTE: In early 2023, legislation was added to deter individuals who have recently changed their nationalities to that of a treaty country. If have you have acquired the nationality of a treaty country for the first time within the last several years, you might wish to speak with knowledgeable attorneys before proceeding.
Rules for determining the nationality of treaty trader or investor that is a corporate (juridical) entity
Let us say that the treaty trader or treaty investor is a corporation or similar entity that under the laws of its country has a distinct juridical personality — it and its owner(s) (shareholde(r)) are two different legal entities.
The rules determining its nationality are more complex and probably require professional analysis. But the following are some guidelines:
1. The place of its incorporation is irrelevant.
2. If it is a publicly traded company whose shares are traded on a single stock exchange, its nationality is that of the country in which the exchange is located.
3. Otherwise, the nationality of its owners (shareholders) becomes the prime determinant of its nationality.
a. The simplest kind of corporate ownership structure is that of a ‘closely-held” corporation whose stock is held by one or a few individuals. We would look at the nationality of the majority of those shareholders to determine the nationality of the company.
b. Determining the nationality of a more complex corporate structure –for example, of companies that own, are owned by, or are under common ownership of another company or companies,– requires a professional analysis.
Spouses and minor children
Note that the E-1 and E-2 visas are also routinely granted to the spouses and minor children of any of the above categories of owner, director or key employee. However, they are not required to meet any nationality test.
The SIGNET Law Firm
We are dedicated to helping foreign business invest and operate in the United States successfully. As part of our services, we specialize in helping our clients procure the E-1 and E-2 visas, which enable them to live in the U.S. while they manage and operate their businesses.
Thank you.
We hope you have found this information useful. If you would like to speak with us, we are available.