Understanding the E-2 Visa Nationality Requirement

The E-2 visa category offers a unique pathway for nationals of treaty countries to invest in the United States, fostering economic growth and creating employment opportunities. This nonimmigrant classification not only allows the primary investor to reside in the U.S. but also permits certain employees of the investor or the qualifying organization to obtain this classification. Understanding the intricate nationality requirement of the E-2 visa is crucial for applicants wishing to navigate this process successfully.

The Nationality Requirement

At the core of the E-2 visa eligibility criteria is the nationality requirement. This stipulation mandates that both individual investors and businesses must possess the nationality of a treaty country. For businesses, this means that the nationality is determined by the individual owners of the business. This requirement underscores the treaty-based nature of the E-2 visa, ensuring that the economic exchanges facilitated by this visa are between the U.S. and its treaty partners.

Key Considerations for E-2 Visa Applicants

1. Nationality Criterion: Both individual applicants and businesses are required to hold the nationality of the treaty country. For businesses, nationality is determined by the nationality of the individual owners.
2. Incorporation vs. Nationality: The country of incorporation is irrelevant to the nationality requirement for E visa purposes. For instance, consider a Canadian company investing in the startup of a U.S. subsidiary. The fact that the investor is a company incorporated in Canada, a treaty country, isn’t sufficient to satisfy the E-2 nationality requirement. It must still be demonstrated that the Canadian parent company possesses the nationality of the treaty country, which is determined by examining the nationality of the individual owners of that business.
3. Ownership Rule: When the investor is an organization, nationals of a treaty country must ultimately own at least 50 percent of that business. In corporate structures, the nationality of the stock owners must be considered. If one business owns another, the ownership of each business structure must be reviewed to demonstrate that the ultimate parent organization possesses the requisite 50 percent nationality of the treaty country. If the E-2 visa applicant is the investor coming solely to develop and direct the U.S. company, then the applicant must demonstrate that they control or will control the enterprise. Normally, such control is evidenced by at least 50 percent ownership by the applicant, but it can also be established through possession of operational control (via a managerial position or another corporate mechanism) or by other means.  
4. Dual Nationality: Except in cases where an enterprise is equally owned and controlled (50/50) by nationals of two treaty countries, a business seeking E visa status must have only one qualifying nationality. In situations involving dual national owners, a decision must be made regarding which nationality will be utilized. Both the owner and all E visa employees of the company are required to possess the nationality of the chosen E visa qualifying country and identify as nationals of that country for all E visa-related purposes involving the company, irrespective of any additional nationalities they may hold. However, when a company is equally owned and controlled by nationals from two different treaty countries, employees of either nationality are eligible to obtain E visas to work for that company.
5. Status of U.S. Lawful Permanent Residents (LPR): An investor who is a national of a treaty country but holds U.S. Lawful Permanent Resident (LPR) status is ineligible to sponsor employees under INA 101(a)(15)(E). Additionally, stock shares owned by U.S. LPRs are not factored into the determination of the business’s nationality.

The E-2 visa’s nationality requirement is a testament to the detailed and nuanced nature of immigration law, emphasizing the need for thorough understanding and careful preparation in the application process. For investors and businesses aiming to leverage this opportunity, it is essential to grasp these requirements fully and prepare a compelling case that meets the stringent criteria set forth by the U.S. government. With the right approach and expert guidance, navigating the complexities of the E-2 visa can lead to successful investment ventures in the United States, benefiting both the investors and the broader U.S. economy. Contact Berardi Immigration Law for assistance.