E-Visa Eligibility: Determining a Company’s Nationality
Understanding the criteria for determining a company’s nationality is crucial for E-Visa applications. E-Visas, designed for treaty traders and investors, hinge on a company’s eligibility based on its nationality. This requirement is detailed in 9 FAM 402.9-4(B), which explains how nationality is determined and its significance in the E-Visa process.
Key Nationality Requirements for E-Visas
1. Individual and Business Nationality
For E-Visa eligibility, both individuals and businesses must possess the nationality of a treaty country. A company’s nationality is determined by the nationality of its individual owners.
2. The Irrelevance of the Country of Incorporation
Contrary to popular belief, the country where a company is incorporated does not determine its nationality for E-Visa purposes. However:
- Stock Exchange Rule: If a company is traded exclusively on a stock exchange in its country of incorporation, it is presumed to share the nationality of that country. Applicants must provide strong evidence to support this presumption.
- Multinational Corporations: For companies traded on multiple stock exchanges, it’s essential to demonstrate that the company retains the treaty country’s nationality. Complex ownership structures may require Departmental guidance.
3. The 50% Rule: A Core Requirement
The 50% Rule is central to E-Visa eligibility. Treaty country nationals must own at least 50% of the business. This rule applies at various levels:
- Employee Applicants: When the applicant is an employee, at least 50% of the business must be owned by treaty nationals.
- Operational Control: Investors seeking to develop and direct the business must demonstrate control through:
- Majority ownership (at least 50%).
- Other means of operational control, such as managerial authority, provided it reflects genuine control.
Mere managerial positions without authority over the business do not fulfill this requirement.
4. Dual Nationality and E-Visa Eligibility
Dual nationality introduces unique complexities. Applicants and businesses must choose one qualifying nationality for E-Visa purposes. Exceptions exist only when a business is equally owned (50/50) by nationals of two treaty countries, allowing employees of either nationality to qualify.
- In other scenarios, all E-Visa employees and the business must align with the chosen treaty country’s nationality, regardless of other national affiliations.
5. Limitations for U.S. Permanent Residents
Investors and traders with U.S. permanent residency (Green Card status) face specific restrictions:
- They cannot sponsor employees under the E-Visa category.
- Shares owned by U.S. permanent residents are excluded when determining a company’s nationality for E-Visa purposes.
Additional Considerations: Trusts and Nationality
While not officially documented, the Department of State has confirmed that the nationality of a trust is determined by the nationality of its beneficiaries, not the trustees. This nuance may affect certain applicants relying on trusts for ownership structures.
Conclusion
Understanding the nationality requirements for E-Visa applications, as outlined in 9 FAM 402.9-4(B), is essential for success. Understanding the 50% Rule, addressing dual nationality issues, and accounting for limitations related to U.S. permanent residency are crucial steps in meeting E-Visa eligibility criteria. By aligning with these guidelines, applicants can strengthen their case and improve their chances of securing an E-Visa.
Schedule a Consultation with an Immigration Lawyer
Citations
We Can Help!
You may have questions regarding the requirements for E-Visa status. We invite you to contact our team at Richards and Jurusik for detailed guidance and assistance. We aim to provide the most accurate and up-to-date information to make your immigration process smoother and less stressful. The immigration lawyers at Richards and Jurusik have decades of experience helping people to work and live in the United States. Read some of our hundreds of 5-star client reviews! Contact us today to assess your legal situation.
JEREMY L. RICHARDS is the founding partner of Richards and Jurusik and has dedicated his career to U.S. immigration law, with a specialized focus on assisting Canadian and Mexican citizens under the United States-Mexico-Canada Agreement (USMCA) to work and live in the United States. (Full Bio)
