Dear clients and friends,
On Dec. 15, 2022, Congress passed the James M. Inhofe National Defense Authorization Act for Fiscal Year 2023 (the “2023 NDAA”), which contains two key changes to the eligibility for E visas: First, Portugal has now been designated as a treaty country. Thus, Portuguese passport holders are eligible to obtain E-1 and E-2 visas as Treaty Trader/Treaty Investors. Second, the 2023 NDAA inserted a limitation on the eligibility for an E visa by adding a new requirement that E visa applicants who have acquired citizenship of a treaty country via financial investment must have been “domiciled” in the treaty country for a “a continuous period of not less than three years at any point before applying” for the E visa. Notably, this new requirement does not apply to existing or previous E visa holders.
The purpose of this provision is to limit a pathway to U.S. residency that was previously open to individuals who applied for citizenship by investment programs in certain E visa treaty countries, primarily Grenada. In these scenarios, the individual from a non-E visa treaty country would obtain citizenship in Grenada via investments, and then use their newfound Grenadian citizenship to apply for an E visa. Thus, the value of the Grenadian passport to these individuals was the ability to obtain an E visa.
The term “domicile” is not found in the 2023 NDAA, and it is unclear how the U.S. Department of State will apply this requirement to E visa applicants. The word “domicile” under U.S. law pertaining to immigration has been subject to change and dispute over the years because the Immigration and Nationality Act (INA) does not generally define “domicile.” In other contexts, such as the use of “domicile” under INA 213A as interpreted by the State Department, “domicile” means the place where an individual has their principal residence with the intention to maintain that residence for the foreseeable future. This State Department interpretation is generally consistent with other areas of U.S. immigration law that defines “domicile”.
Yours,
Dewan & Associates PLLC.
New York Office
