E-2 Ownership and Treaty Nationality Evidence

Passports, nationality certificates, and other appropriate records can establish the citizenship of individual shareholders, members, or partners.

Treaty nationality begins with the nationality of the individuals who ultimately own the enterprise. Current 8 CFR 214.2(e) provides that an individual's treaty nationality is determined by the authorities of the foreign state of which the person is a national. Passport copies, nationality certificates, or other reliable citizenship records can document the owners. The filing should identify each relevant shareholder, member, or partner and avoid relying only on the country where a company was incorporated. Nationality for E purposes and place of corporate formation are different concepts, so the ownership record should make the individual treaty nationality analysis clear.

Stock ledgers, share certificates, membership registers, operating agreements, partnership agreements, capitalization tables, and official corporate records can establish ownership.

When the E-2 employer or enterprise is an organization rather than an individual, the ownership documents should establish the percentage held by qualifying treaty nationals. Under 8 CFR 214.2(e), an enterprise serving as the principal employer for an E employee must generally be at least 50 percent owned by qualifying persons of the treaty nationality. Stock ledgers, share certificates, membership registers, operating agreements, partnership agreements, capitalization tables, and corporate records can establish those percentages. The documents should reconcile with tax filings and transaction records and should identify both voting and economic interests when the governing structure makes those concepts materially different.

Where one entity owns another, the evidence should allow the adjudicator to determine the nationality of the ultimate owners relevant to treaty nationality.

Tiered ownership may require tracing through several entities until the individuals who ultimately own the enterprise can be identified. The regulation expressly directs that ownership of an organization be traced as best as practicable to its ultimate individual owners. A clear ownership chart can show each intermediate parent, ownership percentage, and the nationality of the ultimate owners. The supporting corporate records should permit the adjudicator to verify the chart rather than rely on an unsupported summary. Complex holding companies, trusts, partnerships, or cross border structures should be explained carefully where they affect whether the required treaty nationality is preserved through the ownership chain.

A principal investor normally establishes control through at least 50 percent ownership or another genuine mechanism giving the investor the ability to develop and direct the enterprise.

Treaty nationality of the enterprise and the principal investor's ability to develop and direct it are related but distinct requirements. Current 8 CFR 214.2(e) provides that a principal investor may establish develop and direct control through ownership of at least 50 percent of the enterprise, operational control through a managerial position or other corporate device, or other means. The filing should therefore document both ownership and genuine decision authority. Operating agreements, voting provisions, board rights, manager designations, shareholder agreements, and actual duties may be relevant, especially where the investor's percentage alone does not fully explain who controls major business decisions.

The FAM recognizes negative control where two equal partners each retain full management rights and responsibilities. Equal ownership among more than two partners does not create the same control analysis.

A two owner enterprise with equal ownership can present a different control analysis from a company divided among several minority owners. Department of State E guidance recognizes that equal partners may possess qualifying control where each has genuine management rights and the ability to prevent unilateral action by the other. The filing should document the actual governance arrangement rather than assume that every 50 percent interest establishes control. Operating agreements, voting provisions, deadlock rules, board composition, signing authority, and management responsibilities can show whether the investor genuinely participates in directing the enterprise and whether the claimed control exists in practice.

Transfers, new investors, dilution, redemptions, mergers, or reorganizations can affect treaty nationality and should be evaluated before the transaction closes.

Ownership evidence should be updated whenever shares or membership interests are transferred, new investors are admitted, interests are diluted or redeemed, or a merger or reorganization occurs. A change can affect treaty nationality even when the business operations remain the same, and it can separately affect the principal investor's ability to develop and direct the enterprise. Before closing a transaction, the company should calculate the post transaction percentages and review the new governance rights. Updated capitalization records, owner nationality evidence, operating agreements, and transaction documents should then present one consistent account of the ownership and control structure used for E-2 eligibility.