E-2 Employee Nationality Requirement

An employee cannot qualify under the E-2 employee rules merely because the employee personally holds citizenship of some treaty country.

An E-2 employee must share the same treaty-country nationality as the qualifying E employer. The employee cannot qualify merely by holding citizenship of any country that has an E-2 treaty with the United States. The relevant nationality is the one on which the employer's E qualification is based. The filing should therefore establish both sides of the relationship: the employee's nationality and the treaty nationality attributed to the individual employer or enterprise. A mismatch is a threshold classification defect and cannot be cured by strong executive, supervisory, or essential employee credentials.

Where the employer is a corporation, LLC, partnership, or other organization, the ownership chain may need to be traced to establish the nationality attributed to the enterprise.

When the employer is a corporation, LLC, partnership, or other organization, its E nationality is generally determined through qualifying ownership. Current FAM guidance requires at least 50 percent treaty-country ownership, and the ownership chain may need to be traced through parent or holding companies. The employee's nationality must align with that qualifying enterprise nationality. The record should identify current owners, percentages, intermediary entities, and the ultimate individuals whose nationality supports the E classification. A brand name, place of incorporation, or location of operations does not by itself determine E treaty nationality.

The employee then must possess that same treaty-country nationality.

When the employer is an individual, the employer must possess the qualifying treaty nationality and the employee must possess that same nationality. Current FAM guidance also addresses the employer's E status when the individual employer resides in the United States. The filing should identify the legal employer accurately and document citizenship with a passport or other reliable nationality evidence. If the business operates under a trade name or sole proprietorship, the record should avoid creating the impression that the business has a separate corporate nationality when the qualifying employer is actually the individual owner.

The nationality used for the employee application should be consistent with the nationality on which the qualifying enterprise relies.

Multiple citizenships can require careful planning because the employee application must rely on a nationality that matches the qualifying E employer. A dual national may potentially possess the needed treaty nationality, but the filing should use the relevant nationality consistently across the visa application, passport presented for issuance, employer evidence, and supporting explanations. The existence of another citizenship does not by itself defeat E eligibility. The important point is that the employee actually possesses the treaty nationality on which the case relies and that the employer independently qualifies under the same treaty-country nationality.

Passports, stock or membership records, ownership registers, operating agreements, corporate records, and ownership charts can establish the connection.

Nationality evidence should document both the employee and the employer rather than assume one proves the other. For the employee, a passport is ordinarily central. For an organizational employer, stock ledgers, membership records, capitalization tables, operating or shareholder agreements, corporate registers, ownership charts, and passport copies of qualifying owners may be relevant. Where ownership is indirect, evidence should permit the adjudicator to follow the chain to the ultimate qualifying owners. The percentages and nationalities should be consistent across corporate records, prior E filings, tax documents where relevant, and the current application.

Dilution, transfers, mergers, or admission of new investors can alter the treaty nationality of the employer and should be reviewed before closing.

Ownership changes can alter the treaty nationality of the employer and therefore affect E-2 employee eligibility. Dilution, stock or membership transfers, new investors, mergers, acquisitions, conversions, and reorganizations should be reviewed before closing when E employees depend on the company's existing nationality. A company that falls below the qualifying treaty ownership threshold may no longer support the same E employee classification. Updated cap tables and governing documents should be maintained, and a material restructuring should also be reviewed for any separate substantive-change filing consequences under the E regulations.