E-2 Treaty Nationality Requirements

E-2 classification is available only to nationals of countries that qualify through an applicable treaty or legislation providing treaty investor privileges. The current Department of State treaty table should therefore be checked at the beginning of every E-2 analysis.

The existence of an E-1 treaty does not automatically mean that the same country qualifies for E-2. The treaty table identifies the classification available for each country and the date the relevant provision entered into force.

Some entries also contain important country specific limitations. A country name appearing in the table should not be treated as the end of the analysis. The accompanying State Department footnotes can determine whether E-2 treatment applies to a new investment, only to an older covered investment, or subject to another special rule.

Review the E-2 treaty country framework

For an individual treaty investor, nationality is determined by the authorities of the foreign state whose nationality the applicant claims. The E-2 inquiry therefore focuses on citizenship or nationality under that country's law.

Living in a treaty country does not by itself create E-2 eligibility. Permanent residence, tax residence, domicile, a residence permit, business ownership, or long term physical presence in a treaty country is not a substitute for qualifying nationality.

Likewise, birthplace does not necessarily resolve the issue. The applicant should establish the nationality actually possessed at the time of the E-2 application through a valid passport and, where needed, additional citizenship evidence.

The nationality requirement applies independently from the investment requirement. A person can make a substantial investment in a qualifying U.S. business and still fail to qualify as an E-2 principal investor if the person does not possess an eligible treaty nationality.

A person who possesses more than one nationality may be able to use a qualifying treaty nationality for E-2 purposes. The ownership and company nationality analysis must then remain consistent with the nationality selected for the E enterprise.

The Foreign Affairs Manual generally requires dual national owners to choose which treaty nationality will be used for the business. The owner and E visa employees of that enterprise ordinarily must then rely on that same qualifying nationality for E visa purposes involving the company.

This issue becomes especially important when several owners possess different treaty nationalities. The fact that each owner independently comes from an E-2 country does not automatically allow the company to operate simultaneously under several unrelated treaty nationalities.

A special rule exists for an enterprise owned and controlled equally by nationals of two different treaty countries. That structure requires a separate analysis of the ownership, control, and employee nationality rules.

The State Department treaty table includes country specific footnotes that can materially change the answer. These limitations should be read together with the country listing rather than treating every listed E-2 country as identical.

For example, the current State Department table continues to restrict E-2 treatment for Bolivia to qualifying covered investments established or acquired before the applicable cutoff. Ecuador also remains subject to a grandfathering rule tied to qualifying investments in place before its treaty termination date.

The United Kingdom presents a different issue. The treaty provision applies to qualifying British territory and includes an additional inhabitancy requirement described in the State Department treaty table. Nationality of another Commonwealth country does not by itself establish eligibility under the United Kingdom treaty.

Other treaty entries can contain territorial, succession, or statutory notes. Country specific planning should therefore begin with the exact treaty entry that applies to the applicant.

An applicant relying on recently acquired citizenship should be prepared to establish that the nationality was lawfully obtained and actually possessed when the E-2 benefit is sought. The underlying nationality rules are determined by the country granting citizenship.

Immigration planning based on obtaining citizenship of an E-2 country should be distinguished from the E-2 investment itself. Acquiring a qualifying passport may address the treaty nationality element, but it does not establish business nationality, substantial investment, commercial risk, marginality, or the investor's ability to develop and direct the enterprise.

The business transaction should therefore not be treated as E-2 ready merely because the investor expects to acquire a second citizenship later.

The nationality requirement for the principal investor should not be confused with the rules for a derivative spouse or child.

Under the treaty investor regulation, the spouse and qualifying children of an E-2 principal may receive derivative E classification even when they do not possess the same nationality as the principal investor.

This distinction can matter in multinational families. The principal applicant must independently satisfy the treaty nationality requirement, while the derivative classification rests on the qualifying family relationship.

A straightforward case may require little more than a current passport and the ownership records of the U.S. enterprise. More complicated cases can require a deeper record.

The nationality described in the visa forms, legal submission, ownership chart, business documents, and supporting passports should be internally consistent. When the ownership chain is layered, the record should make clear how the qualifying treaty nationality reaches the U.S. enterprise.