While the EB-5, or Immigrant Investor Program, is one method for acquiring a visa, the E-2 Treaty Investors Program offers a practical, however occasionally overlooked, solution to the EB-5. The E-2 visa has a number of similarities to lawful permanent resident status in whens it come to its adaptability. As one example, E-2 visa holders may be self-employed (provided that that self-employment furthers the qualifying venture.) In addition, E-2 nonimmigrants could choose to continue to be in the Unites States for an indefinite time frame, and the nonimmigrant need not keep contact with his or her home country.
One constraint on securing an E-2 visa relates to the nonimmigrant’s country of origin. To become qualified to apply for an E-2 visa, a nonimmigrant must definitely be a national of a country with whom the United States signed a Freedom, Commerce and Navigation (FCN) Treaty. The United States joined these treaties with the objective of fostering economical interplay between the signatory nations.
Generally, establishing a man or woman’s nationality is simple, however not always. The authorities in the foreign country determine the nationality status of the nonimmigrant investor. In uncertain cases, it is important to assess diligently the laws of the treaty partner. If the nonimmigrant investor was born in a nation that is a treaty partner of the United States, they may not necessarily get an E-2 visa. Should that country’s laws only follow the doctrine of jus soli, then the nonimmigrant will qualify, but if the country exclusively observes the doctrine of jus sanguinis, then that nonimmigrant will only qualify if one or both of his or her parents were also citizens of that country.
Sometimes, E-2 applicants may have multiple national status. For those individuals, eligibility will depend on what country they hold themselves out as a national. For example, if an applicant possesses dual citizenship of both Spain and Portugal, but holds himself out as a Spanish national, he would qualify, as a result of Spain’s treaty status with the United States. Nonetheless, if he holds himself out as a national of Portugal, he would be ineligible, as Portugal is not a treaty partner. Here in this scenario, the applicant must be documented and admitted into the United States as a Spanish national. As it relates to E-2 eligibility, individuals holding dual nationality with a U.S. treaty partner and the United States are not deemed nationals of the foreign country.
To determine the nationality of a commercial enterprise, one must look to the nationality of the business’s owners. The country of incorporation of a business has no bearing on the business’s nationality as it relates to E-2 visas. For businesses that have an equal number of owners from each of two different countries, the business is deemed to have the nationality of both countries. If a business is at least 50 % owned by individuals who are nationals of FCN treaty partners, then it is eligible.
Another important eligibility element is that the source of a business’s investment capital has no bearing on the determination of nationality. If a business is 50 % owned by a Spanish national, then the business is considered to have Spanish nationality, even if 100 % of its investment capital comes from Portuguese sources. If a business is owned by eligible nationals, but their ownership percentage is less than 50 percent, then that business is ineligible. In some cases, the business’s ownership structure can be restructured to make it eligible.
In the case of trusts, U.S. authorities look to the national status of the trust’s beneficiaries, not the trustees, when determining the nationality.
Where to Get Help Qualifying for the E-2 Trader Treaty Visa
This article provides general educational legal information on the benefits of and qualifications for the E-2 Trader Treaty Visa. To determine whether the E-2 Visa is appropriate for you and your family, consult with a qualified immigration lawyer.
Our law firm focuses our legal practice on immigration law and, specifically, we guide foreign nationals who wish to live, work, and invest in the United States through the E-2 Trader Treaty Visa application process. Your next step is to contact our immigration attorneys at 513-793-6555 or Thomasjr@geygan.com.