The E-1 (Treaty Trader) and E-2 (Treaty Investor) visas are among the most useful options for multinational companies that need to send key employees to the United States. To qualify, a company has to meet several requirements. The most basic one is showing that the U.S. business has the right nationality.
For a privately owned company, this is usually simple. For publicly traded companies and financial institutions, it can be much harder. This article covers:
- how the U.S. government decides a company’s nationality for E visas,
- how public companies can prove they qualify even though their shareholders change every day,
- a recent change in how the U.S. Embassy and Consulates in Japan are applying these rules, and
- what to watch for in industries with a lot of foreign investment.
The basic rule: at least 50% ownership
To qualify for an E visa, the U.S. business must have the nationality of a country that has a qualifying treaty of commerce and navigation with the United States. Japan is one example.
The U.S. decides a company’s nationality by looking at who ultimately owns it. At least 50% of the U.S. business must be owned by nationals of the treaty country. For a Japanese company, that means at least 50% Japanese ownership.
For a private company, proving this is easy. You provide:
- a capitalization table,
- stock certificates, and
- passports of the individuals who ultimately own the company.
It gets harder when the parent company is publicly traded and millions of its shares change hands every minute.
The problem: public company ownership changes constantly
For a public company, it is nearly impossible to know the nationality of every shareholder on any given day. For example, foreign ownership of a company listed on the Tokyo Stock Exchange (TSE) could rise above 50% on Tuesday and fall back to 40% by Thursday, just from normal institutional trading.
E visa rules require at least 50% treaty-country ownership, so these daily swings make proof difficult. If a consular officer asked for exact proof of who owns the company’s public shares on the day of the visa application, most public companies could not provide it.
The solution: the government looks at where the stock is listed
The U.S. Department of State’s Foreign Affairs Manual (FAM) offers a practical way around this. Under 9 FAM 402.9-4(B), a publicly traded company is presumed to have the nationality of the country where its stock is listed and traded, either only there or mainly there.
So if a company is listed on the Tokyo Stock Exchange, the U.S. government will generally treat it as a Japanese company, no matter how its shareholder base shifts from day to day. The company does not have to identify individual shareholders. It can use its public filings, annual reports, and confirmation of its stock exchange listing instead.
A recent shift: consulates in Japan are asking for more proof
Recently, we have seen the U.S. Embassy and Consulates in Japan look past this presumption. At the E visa company registration stage, they have asked companies to prove their actual Japanese ownership, even when the company is publicly traded in Japan.
We believe this approach is unfair, especially when most of a company’s shares are publicly traded (for example, 80% or more). Here is why:
- Ownership of public shares changes by the minute. Investors buy and sell throughout every trading day.
- The rules are all-or-nothing. Once Japanese nationals own less than a majority, the company is no longer considered Japanese for E visa purposes.
- The result would be arbitrary. If eligibility depended on a snapshot of shareholders at a single moment, a company could be Japanese in the morning and not Japanese by the afternoon. No company could plan around that, and no consular officer could fairly decide a case on that basis.
That instability is exactly why the stock exchange presumption exists. Setting it aside for a company whose shares are mostly publicly traded in Japan defeats its purpose.
Even so, companies should be ready for this request. Before registration, it helps to gather the shareholder information the company already publishes, such as the shareholder breakdown in its annual securities report (yūka shōken hōkokusho), along with proof of its listing. Immigration counsel can then present that evidence with a clear argument for applying the presumption.
Example: a U.S. subsidiary of a Japanese public company
Suppose a large Japanese company, listed on the Tokyo Stock Exchange, sets up a U.S. subsidiary to carry out trade or investment.
To help fund the business and reward local management, the Japanese parent keeps 70–80% of the U.S. company’s shares. The other 20–30% is held by U.S. citizens or nationals of other countries, such as local executives or minority business partners.
The U.S. subsidiary qualifies for E visas because:
- The Japanese parent owns at least 50% of the U.S. company. Its 70–80% stake clears the requirement.
- The Japanese parent is presumed to be Japanese because its stock trades on a Japanese exchange.
When applying for E visas for the U.S. company’s employees, the strategy focuses on two things:
- proving the chain of ownership (the parent’s 70–80% stake), and
- showing that the parent is listed on a stock exchange in Japan.
Normally there is no need to trace the parent company’s individual shareholders. Given recent consular practice in Japan, though, companies should also be ready to show Japanese ownership if they are asked.
Special issues for financial companies
The stock exchange presumption is powerful, but it has limits. Under the FAM, it applies unless there is evidence to the contrary. This matters most for financial companies and other industries that attract heavy foreign direct investment.
Banks, fintech firms, and asset managers often draw large investments from global institutions. Public disclosures can show that foreign (non-Japanese) institutional investors or sovereign wealth funds together hold more than 50% of the Japanese-listed parent. In Japan, these are large shareholding reports, the local equivalent of SEC Schedules 13D and 13G. If that happens, a U.S. consular officer may question whether the company should still be treated as Japanese.
Steps companies with heavy foreign investment should take
- Keep track of major shareholder reports. Companies that rely on E visas should watch these filings on an ongoing basis. If foreign ownership gets close to 50%, contact immigration counsel right away.
- Prepare ownership evidence before you register. Because consulates in Japan are now asking for more than proof of listing, gather published shareholder data before filing so you are not caught off guard.
- Look at voting vs. non-voting shares. E visa nationality depends on ownership and control. If the company has more than one class of stock, keeping at least 50% of the voting shares with treaty nationals (or the treaty-listed parent) can sometimes preserve E visa eligibility, even if overall ownership shifts.
- Have a backup visa plan. A buyout, merger, or heavy foreign institutional investment can cost a company its E visa nationality. If that happens, it should move quickly to other visa options, such as the L-1 (Intracompany Transferee) or H-1B (Specialty Occupation). These visas do not depend on the company’s nationality.
The bottom line
Getting and keeping E visa status as a public or financial company takes careful planning and a clear understanding of what U.S. consulates expect to see. The stock exchange presumption is still the right starting point. With consulates in Japan now asking for more, though, companies should also prepare ownership evidence ahead of time and keep a close eye on major shareholder disclosures. Doing both helps keep your key employees moving to the United States without interruption.