What is the nationality requirement for an E Visa? - Resources Blog - US Immigration FAQs - Richards and Jurusik Immigration Law - Buffalo NY

Understanding the criteria for determining a company’s nationality is essential for E-Visa applications. This is based on the premise that a company’s nationality directly influences its eligibility for an E-Visa designed for traders and investors from treaty countries. Qualifying nationality for E-Visa purposes is explained in 9 FAM 402.9-4(B). We explain this requirement here.

Nationality Requirements for E Visa Eligibility

  • Individual and Business Nationality: For individual traders and businesses, possessing the nationality of a treaty country is paramount. A company’s nationality is determined explicitly by the nationality of its owners, highlighting the importance of personal ownership in the E-Visa process.
  • The Irrelevance of Country of Incorporation: Contrary to what might be assumed, the country where a company is incorporated does not affect its nationality for E-Visa purposes. However, for companies traded solely on a stock exchange in their country of incorporation, there’s a presumption that the company’s nationality matches the exchange’s location. Yet, applicants are advised to provide robust evidence supporting this presumption. In the scenario of multinational corporations trading in multiple countries, it’s crucial to demonstrate that the company maintains the treaty country’s nationality, sometimes necessitating Departmental guidance.

The 50% Rule: A Closer Look

This rule is a cornerstone of E-Visa eligibility, mandating that nationals of the treaty country must own at least 50% of the business. This requirement extends to different layers of ownership and operational control:

  • For Employee Applicants: When the investor is an organization applying on behalf of an employee, 50% ownership by treaty nationals is essential.
  • Operational Control: When the applicant is the investor seeking to develop and direct the enterprise, demonstrating control over the business is necessary. This control can be shown through majority ownership or other means of operational command, although mere managerial positions without actual control do not suffice.

Dual Nationality and Its Implications

Dual nationality introduces complexities in choosing the qualifying nationality for E-Visa purposes. A single nationality must be selected except in rare cases of equal ownership by nationals from two treaty countries. This choice affects both the owner and the E Visa employees, who must all align with the chosen treaty country’s nationality, regardless of any other national affiliations they might hold.

The Impact of U.S. Permanent Residency

There are specific limitations for traders and investors holding U.S. permanent residency (Green Card status). Such individuals cannot sponsor employees under the E Visa category, and shares owned by U.S. permanent residents are excluded from the nationality determination of the business.

Conclusion

Understanding the detailed guidelines from 9 FAM 402.9-4(B) in the E Visa application process ensures adherence to the requirements. By carefully navigating the intricacies of company nationality, including the 50% Rule and the handling of dual nationalities and U.S. permanent residency, applicants can better position themselves for a successful E-Visa journey.

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