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Question:

Can shares owned by a treaty country government be included when trying to meet the required 50% minimum ownership rule?

Answer by Angelo Paparelli:

This is a great question. I haven't encountered this fact pattern before. I know there is an old I & N precedent decision that says a country may be an owner of an L-1 foreign entity that is part of a qualifying organization.

The E visa CIS regulations require, in the case of "an enterprise or organization", that "ownership must be traced as best as is practicable to the individuals who are ultimately its owners". Here is what I suggest you research to get a more definitive answer:

• The particular treaty text (FCN treaty or Bilateral Investment treaty) to determine whether the treaty country could be deemed an intended beneficiary under the treaty;
• The constitution of the foreign state, to see if the rights of the people (who are of course individuals)are reserved in a way that ownership by a government enterprise is deemed ownership by the people of that country;
• The FAM, which may by negative implication offer guidance, i.e., since LPRs and persons on other-than-E nonimmigrant visas are NOT considered treaty nationals.