Can I apply for an E-1 visa if I have dual nationality? Which nationality should I use if I am a dual national?

By May 29, 2020October 21st, 2020E-1 Visa, Immigration
Image courtesy of Nguyen Hung Vu on Flickr (labeled for reuse) https://www.flickr.com/photos/vuhung/14565350736

E-1 visa is a great visa for treaty traders who engage in international trade between the U.S. and their home treaty country.

To qualify for an E-1 visa, you must be a citizen of a country that signed a qualifying treaty with the U.S. Please see the list of countries that qualify for an E-1 visa when you click here.

Some of our clients are nationals of two E-1 treaty countries and then the question that often arises is which nationality they should use when applying for an E-1 visa.

Applying at a Consulate

Example 1

You are a national of Canada and France. In this example, both countries have an E-1 qualifying treaty with the U.S.

Nationals of Canada can get an E-1 visa for 5 years, but nationals of France only get the E-1 visa for 25 months. In this case, it would be advisable to apply for the E-1 visa under your Canadian nationality so you get the E-1 visa for 5 years instead of 25 months. You can check the reciprocity schedule (for how long can your E-1 visa be issued) when you click here.

One other thing to keep in mind when deciding which nationality you should apply under for the E-1 visa is whether you want to bring any E-1 employees from your home country to the U.S. The E-1 employee(s) will have to have the same nationality you used to qualify for an E-1 visa.

In the example above: If you used your Canadian nationality to qualify for an E-1 visa, you would only be able to bring E-1 employees who are nationals of Canada. You could not bring any employees from France to the U.S. on E-1 employee visa. You could always bring employees on other types of visa such as H-1B, O-1, TN, etc.

Example 2

You are a national of Canada and Hungary. Hungary does not have a qualifying E-1 treaty with the U.S. In this case, you can still apply for an E-1 visa under your Canadian nationality.

Applying within the U.S. (Change of Status)

If you are already in the U.S. and you want to do for a Change of Status, then you may only apply under the nationality you used when you most recently entered the U.S.

Example 1

You are a national of Canada and France. You are currently in the U.S., and when you most recently entered the U.S., you entered with your French passport as a B-1 business visitor. You now want to file a change of status application and change your status to an E-1 status. You would only be able to apply for an E-1 visa under the French nationality, because you may only apply under the nationality you used when you most recently entered the U.S.

When you are applying for a change of status, you are granted an E-2 status for 2 years, regardless of which nationality you apply under. In the example above, it actually would not matter if you entered with your French/Canadian passport, as you would be granted an E-2 status for 2 years in either way. Please see our blog post explaining the difference between the E-1 visa/E-1 status when you click here.

Example 2

You are a national of Canada and Hungary. You are currently in the U.S., when you most recently entered the U.S., you entered with your French passport as a B-1 business visitor. You now want to file a change of status application and change your status to an E-1. In this scenario, you would not be able to change your status to an E-1. You may only apply under the nationality you used when you most recently entered the U.S. which in this case was Hungarian. Because Hungary does not have an E-1 treaty with the U.S., you would not be able to change your status. You would either have to apply for E-1 visa at a Consulate or you would have to leave the U.S. and re-enter with your Canadian passport.

Please see our blog post on whether you should apply for an E-1 visa at a Consulate or whether you should file a Change of status petition with USCIS when you click here.

Please see our blog post on whether you should apply for an E-1/E-2 visa when you click here.

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