Congress Passes NDAA for FY2023; Portuguese Nationals Now Eligible for E-1 and E-2 Visas

Congress passed the James N. Inhofe National Defense Authorization Act for Fiscal Year 2023 (“NDAA”) on December 15, 2022. Of particular importance in the NDAA is Section 5901, which makes two important changes to eligibility for E visas:

• Portugal has been designated as a treaty country, which means that Portuguese passport holders are now eligible to obtain E-1 and E-2 visas as Treaty Traders and Treaty Investors.

• Individuals who have acquired citizenship through financial investment must have been domiciled in that country for “a continuous period of not less than three years at any point before applying for an E nonimmigrant visa.” This new domicile requirement does not apply to existing or previous E visa holders. It also does not apply to dual nationals who hold treaty country nationality through other pathways, including citizenship by descent.

The latter provision was likely included to limit a pathway to U.S. residency via investment programs. Prior to this provision, nationals of non-treaty countries were able to apply for citizenship via investment programs in E visa treaty countries, and then immediately use their new citizenship to apply for an E visa. The new provision prevents this by requiring E visa applicants who obtained their citizenship in the E treaty country via financial investment to demonstrate that they have resided in the E visa country for at least three years at the time of E visa application. Notably, Portugal has a popular “Golden Visa” allowing citizenship by investment. Grenada also advertises the pathway to E-1 and E-2 visas as a benefit of their citizenship by investment program.

These provisions took effect on December 23, 2022, when President Biden signed the act into law. If you are a Portuguese national interested in exploring your eligibility for an E-1 or E-2 visa, or if you have questions on whether the new NDAA provisions impact your current or future E visa eligibility, please contact a member of our Immigration and Nationality team for assistance with your case.