Dual Nationals and Matter of Ognibene

Posted on Sep 16, 2015

Over the 20 plus years that I have been an Immigration Lawyer, I have noticed an increase in the number of foreign nationals that are dual nationals and have Passports from more than one country.

At the simplest level, it presents the question of which Passport will be used upon entry to the U.S. For instance, one of the Passports may be from a country that participates in the Visa Waiver (ESTA) program, thus allowing the holder to travel to the U.S. without a visa for 90 days or less. In other cases, the holder of the Passport may have an actual visa in one Passport (the country of their principal residence), but not in the other, so they use this Passport upon entry into the U.S. From a practical standpoint, the Passport holder may not have a choice as to which Passport is used and presented at the time they request entry into the U.S. because one will entitle the holder to entry and the other will not. This can, however, have very important legal consequences and may affect their future U.S. immigration options.

One area where this issue comes up is in the context of a foreign national entrepreneur who is interested in applying for an E visa. What frequently happens is that the entrepreneur enters the U.S. in a nonimmigrant status (such as B1/B2 or as an F-1 student) and, during the course of their stay, decides to set up a business and apply for an E visa by filing an I-129 Application for a Change of Status. Of course, this assumes that the entrepreneur is a national of an E visa treaty country. For dual national entrepreneurs, what is not so obvious is that the entrepreneur can only claim E visa eligibility if he or she last entered the U.S. using the passport from the E visa treaty country.

This rule was established and set forth by the Board of Immigration Appeals in a case called Matter of Ognibene, 18 I&N Dec. 425 (BIA 1983) where the Board held that

“[I]n the case of a dual national alien nonimmigrant, the nationality claimed or established by him at the time of his entry into the United States must be regarded, for the purposes of Section 214 of the Act, as his sole or operative nationality for the duration of his temporary stay in the United States.”

In this case, the E visa applicant, Mr. Ognibene, was a dual national of Italy (an E visa treaty country at that time) and Canada (now an E visa treaty country, but not at that time … in 1983). As fate would have it, Mr. Ognibene entered and was admitted as a temporary nonimmigrant with his Canadian Passport. When he later attempted to apply for and change his status to E-2, claiming through his Italian nationality, the Immigration Service denied his application on the ground that he could only claim Canadian nationality during that particular stay in the U.S. and was not permitted to pick another nationality that was more convenient or which established eligibility for other immigration benefits. This rule was ultimately upheld by the Court and the rule (which at least bears his namesake … Matter of Ognibene) was clearly established as the law of the case.

This somewhat obscure rule has important implications for a dual national entrepreneur who is considering applying for E status. First, the entrepreneur needs to plan ahead and understand how entering the U.S. with the non-treaty Passport could impact their U.S. immigration options once they enter and are admitted into the U.S. Often, it seems that entrepreneurs do not necessarily plan to enter the U.S. and then change to E status, but rather, they encounter opportunities and a change of circumstances once they are in the U.S. and they decide to apply for E visa status.

The second practical implication is that such an entrepreneur (who was admitted to the U.S. using the non-treaty Passport) will have no choice but to depart the U.S. and either apply for the E-visa abroad or to re-enter the U.S. using the E visa treaty country Passport and then apply for a change of status. In this latter case, so as to avoid issues of pre-conceived intent (ie. that it is generally not advisable to enter under one visa category with the pre-conceived intention to apply for a change of status or adjustment of status once in the U.S.) it would be more appropriate and advisable for the entrepreneur to apply for the E visa abroad. In either event, the entrepreneur needs to reconsider their strategy and the timing of their application, as well as the timing of their investment in the U.S. enterprise.

Another context in which dual nationality can impact future applications for U.S. immigration benefits is in the context of applications for Temporary Protected Status (TPS). TPS is a temporary immigration status granted to nationals of a foreign country who are present in the U.S. and are unable or unwilling to return home due to conditions or circumstances that prevent them from returning home safely. Since, however, applicants for TPS are always required to have been present in the U.S. before the country is designated for TPS, this is not something that can be anticipated or planned for in advance and the foreign national will either be eligible or ineligible for TPS depending upon which Passport they used to obtain admission into the U.S. Either way, this is a rule that is worth keeping in mind for all dual national applicants who are applying for TPS.

If you have questions about this article, call South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111.

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