Who Can Apply for an E-2 Visa? The Treaty Nationality Requirement

Before anyone looks at your business plan or your bank statements, one question must be answered: do you hold the right nationality? The E-2 exists only because of treaties between the United States and specific countries. If your country has no qualifying treaty, no amount of investment will make you eligible.

This article looks at nationality alone: whose nationality counts, how it applies to the business, and the special cases that trip people up.

The basic rule

To be a principal E-2 investor, you must be a national of a treaty country. The State Department keeps the official list of these countries, and the list includes:

countries with treaties of friendship, commerce and navigation;
countries with bilateral investment treaties; and
countries that Congress has added by special legislation.

The list changes over time. Recent additions include:

Israel (E-2 visas available since May 1, 2019);
New Zealand (since June 10, 2019); and
Portugal (since March 15, 2024).

A few countries have limited or phased-out E-2 eligibility. Bolivia and Ecuador, for example, now qualify only for investments made before specific cutoff dates.

Your nationality is what counts, not where you live. A German citizen living in Singapore qualifies as a German national. A Singapore permanent resident who holds Indian citizenship does not qualify through Singapore.

The business must have your nationality too

The E-2 looks at two nationalities: yours and the business’s. Under State Department guidance, a business’s nationality is the nationality of its owners. In practice:

At least 50% of the U.S. business must be owned by nationals of your treaty country.
Where the company was incorporated does not matter. A Delaware corporation owned by French nationals is a “French” business for E-2 purposes.
Layers of ownership are traced. If a holding company owns the U.S. business, consular officers look through each layer to find the individuals behind it.
Publicly traded companies are treated differently. A company traded only on its home country’s stock exchange is generally presumed to have that country’s nationality.

Owners who may not count

Not every owner with a treaty passport helps you reach 50%:

U.S. green card holders (lawful permanent residents). State Department guidance says shares they own cannot be counted toward the business’s nationality, even if they are treaty nationals. A treaty national who is also an LPR also cannot bring in E-2 employees.
U.S. citizens. Shares held by U.S. citizens do not make a business a treaty-country business. If a co-owner is a dual U.S.–treaty national, get advice before counting that stake.

This matters when a U.S.-resident relative or partner takes an ownership stake. The 50% treaty-national threshold can be lost without anyone noticing.

Dual nationals

If you hold two citizenships and at least one is a treaty country, you may apply on the treaty nationality. For example, a Brazilian–Italian dual national can apply as an Italian.

A business generally has only one qualifying nationality. Once you choose “Italian,” the business and all of its E-2 employees are treated as Italian for E-2 purposes.

There is one notable exception. If a business is owned and controlled equally (50/50) by nationals of two different treaty countries, E-2 employees of either nationality may qualify to work for it.

Stateless persons

A stateless person cannot be a principal E-2 investor, even if they live permanently in a treaty country. This occasionally affects holders of travel documents that are not full passports under U.S. law. A forthcoming article in this series discusses an example from Taiwan.

Newly acquired citizenship

Some investors obtain a second citizenship specifically to become E-2 eligible. Common routes include ancestry-based citizenship in an EU country, or citizenship-by-investment in a treaty country such as Grenada.

As a rule, nationality is determined by the law of the country that grants it, and a genuine, legally recognized nationality can support an E-2. But the E-2 is discretionary. Expect a consular officer to look closely at a very recent naturalization, especially where the applicant has little connection to the new country.

Employees must match the business’s nationality

An E-2 business can bring in key employees in E-2 status. Every one of them must hold the same treaty nationality as the business, in addition to filling an executive, supervisory, or essential-skills role. A Japanese-owned E-2 company cannot sponsor a Korean employee in E-2 status, even though Korea is also a treaty country.

Family members are the exception

Your spouse and unmarried children under 21 do not need to share your nationality. They qualify as E-2 dependents through their relationship to you. Their own nationality affects only:

how long their visas are valid; and
which reciprocity fee applies to them.

(A forthcoming article in this series covers family members in detail.)

A quick self-check

Before going further, confirm each point:

Is my country on the State Department’s current treaty list for E-2 specifically? Some countries are listed for E-1 only.
Will nationals of my country (not counting U.S. citizens or green card holders) own at least 50% of the business?
If I am a dual national, which nationality will the business use, and do my co-owners and future employees share it?
Does my passport meet U.S. requirements for proving that nationality?

If the answer to any of these is unclear, resolve it first. Everything else in an E-2 case is built on nationality.

Attorney’s perspective

Nationality looks simple, but a single green card holder or U.S. citizen among the owners can break the 50% threshold. I review the ownership structure before the company is formed, so the problem doesn’t surface at the interview.

For advice about your own situation, call +1 718-218-5805 or schedule a consultation. We meet clients in Flushing and Manhattan, in English or Chinese.

References

U.S. Department of State, Treaty Countries: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html
9 FAM 402.9-4(B), Nationality: https://fam.state.gov/fam/09FAM/09FAM040209.html
22 C.F.R. § 41.51: https://www.ecfr.gov/current/title-22/section-41.51

Series overview

This article is for general information only and is not legal advice. Reading it does not create an attorney-client relationship. For advice about your situation, please contact us.

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