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What is the new E-1 and E-2 domicile requirement that applies to applicants with treaty country citizenship through investment?

By October 30, 2023E-1 Visa
Investment

Starting in late 2022, the U.S. government made it much more difficult to secure an E-1 or E-2 visa by receiving citizenship by investment into a treaty country. In this post, we consider this new “domicile requirement,” what it means, and how it impacts those who are pursuing treaty country nationality through investment.

What is the treaty nationality requirement and how did it apply to those who received treaty country citizenship through investment?

One of the fundamental requirements for an E-1 or E-2 visa is that the applicant must be a national of an E-1 or E-2 treaty country (see our earlier post on this topic here). While there are dozens of treaty countries spanning the world (see the list of E-1 and E-2 treaty countries maintained by the U.S. Department of State here), a number of countries are not treaty countries. These include China, India, Brazil, and South Africa, among others.

In the past, those who were not nationals of a treaty country could nonetheless pursue an E-1 or E-2 visa by first securing citizenship in a country that is a treaty country. Grenada and certain other treaty countries introduced “citizenship by investment” programs that made the process of applying for citizenship relatively fast and straightforward. In the case of Grenada, it was not even necessary to reside in the country before receiving citizenship. With a new Grenada passport, the applicant was able to satisfy the E-1 and E-2 nationality requirement, and to therefore pursue an E-1 or E-2 visa.

How does the new law change the nationality requirement as it applies to those who receive treaty country citizenship through investment?

In December of 2022, President Biden signed into law new restrictions on how these citizenship by investment programs can be used toward an E-1 or E-2 visa application. Specifically, the new law, called H.R. 7776 or the James M. Inhofe National Defense Authorization Act (NDAA), adds language to the Immigration and Nationality Act requiring that an E-1 or E-2 visa applicant who acquired treaty country nationality through financial investment must have “been domiciled” in the treaty country for a “continuous period of not less than 3 years at any point before applying” for the visa.

As a result, an E-1 or E-2 applicant can no longer acquire citizenship in a treaty country through financial investment and apply for an E-1 or E-2 visa immediately upon receiving a passport from the treaty country. Now, they must actually be domiciled in that country for a continuous period of not less than three years before applying for the visa.

What does it mean to “be domiciled”?

To understand what it means to “be domiciled” somewhere, it is helpful to consider another context in which domicile is relevant: that of E-1 and E-2 applicants from the United Kingdom.

As explained here, nationals of the United Kingdom face a requirement that is unique among E-1 and E-2 visa applications: they must prove that they are domiciled in the United Kingdom. While nationals of other treaty countries need only show that they have a valid passport from the treaty country – they do not need to have lived in or even have visited the treaty country – applicants from the United Kingdom must additionally show that the United Kingdom is, in fact, their home.

Applicants from the UK have generally done this by providing documentation from the UK such as pay stubs, proof of home ownership or a lease, documents showing that their children are enrolled in school in the UK, UK bank account information, a UK driver’s permit, and any other documentation showing their ties to the UK.

Applying the domicile requirement to citizenship by investment countries

With the passage of the NDAA in December 2022, this domicile requirement now applies to those applying for an E-1 or E-2 visa who received their citizenship through financial investment. This means that an E-1 or E-2 applicant who received their treaty country nationality through financial investment must actually live in the treaty country for at least three continuous years before applying for the E-1 or E-2 visa. With their E-1 or E-2 application, they must be prepared to provide proof that they did, in fact, live in the treaty country – including, for example, documents that they own or lease a home there, that they worked there, that they enrolled their children in school there, and that they opened a bank account there.

If the applicant traveled outside the treaty country for an extended time during that three-year continuous period, they should be prepared to explain, with proof, how that departure did not terminate their domicile in the treaty country. However, based on the language of the new law, it seems that once the continuous three-year period of domicile is complete, the applicant does not need to remain domiciled in the treaty country. In other words, once they have been domiciled in the treaty country for three continuous years, they appear to be able to move to another country and apply for the E-1 or E-2 visa even though they are not currently domiciled in the treaty country.

Conclusion

The new “domicile requirement” is clearly a significant additional requirement for those seeking an E-1 or E-2 visa through citizenship by investment. However, fortunately, the door to an E-1 or E-2 visa through this route does remain open. For now, those who are nationals of China, India, Brazil, or another country that does not have an E-1 or E-2 treaty with the United States can still pursue an E-1 or E-2 visa through citizenship by investment, just with more time, and more effort.

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