Treaty Country Lists and What Happens When a Treaty Ends

The treaty categories are not general investor routes. They exist only between the United States and particular countries, because they were created by agreements between two governments rather than by a rule of general application. Everything else about these classifications follows from that fact: who may use them, which businesses qualify, and why an otherwise perfect case collapses on the wrong passport.

How a country comes to be on the list

The statutory language speaks of an alien entitled to enter under a treaty of commerce and navigation between the United States and the foreign state of which the person is a national. That was the original mechanism: a bilateral friendship, commerce and navigation treaty, negotiated for reasons that usually had nothing to do with immigration, carrying a clause about the entry of traders and investors.

Two further routes have been added since. Bilateral investment treaties and the investment chapters of trade agreements can supply the necessary undertaking, which is why some countries qualify for the investor category without any old-style commerce treaty. And Congress has occasionally designated a country as a treaty country by statute, without any treaty at all. The Department of State compiles the results into a single list showing, country by country, which category is available.

Nationality of the person

The applicant must be a national of the treaty country. Nationality is determined by the law of that country, and immigration authorities take it as they find it. Residence, domicile, tax status and business presence are all irrelevant to this question, however substantial they are.

Dual nationals may generally elect which nationality to rely on, provided the country chosen is a treaty country for the category being sought. The election is not free of consequence, because the whole case is then built on that nationality: the enterprise's ownership must line up with it, and employees brought in under the same enterprise must share it. A few treaties carry their own conditions on who may benefit, so the terms of the particular agreement govern where they say something the general rule does not.

Nationality of the business

A business has a nationality for this purpose, and it is not the place of incorporation. The enterprise qualifies where nationals of the treaty country own at least fifty percent of it and hold the corresponding control. A company formed in the United States, operating only in the United States, is a treaty enterprise if the ownership test is met; a company formed in the treaty country and owned by third-country nationals is not.

Ownership is traced upward through intermediate entities until individuals are reached, and only nationals of the treaty country count toward the fifty percent. Two problems recur. Shares held by a person who has become a permanent resident no longer count toward the treaty nationality, so a founder's own green card can disqualify the company employing the rest of the team. And ownership held through trusts or nominees has to be evidenced rather than asserted.

When a treaty ends or is suspended

Treaties can be terminated on the notice the treaty specifies, suspended in whole or in part, or superseded by a later agreement that does not carry the same clause. Statutory designations can be repealed. The country then stops being a treaty country for the affected category, and the Department of State amends the list.

The effect is clear at the front end. New visa applications in the affected category are no longer available, and applications pending at a post cannot be approved. A change of status filed inside the country in reliance on the classification is likewise unavailable, on the routes described in changing status into and out of the treaty categories.

Holders who are already here

What happens to people already holding the status is much less clear, and it is worth saying plainly that neither the statute nor the regulations answer it directly. Practice has generally been to let issued visas and existing admissions run their course, on the view that a person admitted lawfully keeps the period of admission granted, while stopping new issuance and new extensions once the treaty is gone. That is practice rather than an entitlement, and it has been applied differently in different episodes.

What is left when the category closes

An enterprise that loses access to the category still has options, and they are ordinary ones. Employees who qualify may move to other nonimmigrant classifications; the tests for those are unrelated to any treaty. Where the business supports it, an employment-based immigrant petition removes the dependence on nationality altogether, though it introduces the queue and the requirement of holding a lawful status while the petition is pending.

Timing decides most of these cases. A holder whose admission has years left has time to plan; one whose extension is due within months does not. The current period of admission, when it expires and whether it can be extended is therefore the first thing to establish, using the rules in the admission period, extensions and automatic revalidation. Staff brought in on the specialized bases described in the executive, supervisory and essential skills categories are usually the hardest to place elsewhere.

Where an enterprise employs several people whose status all rests on the same treaty, the whole group stands or falls together, and moving them one at a time wastes the time nobody has. That is complicated enough that a treaty country eligibility counsel should map every case in the company at once, so the order of filings reflects who is most exposed.