Is it possible for a dual citizen to change their immigration status using a passport issued by a country other than the passport they used when they initially arrived and were admitted to the United States?

Example: Gabriel is a citizen of both Brazil and Italy.  He wants to apply for an E-2 Nonimmigrant Investment Visa.  The E-2 visa is not available to citizens of Brazil but is available to citizens of Italy.  He entered the USA using his Brazilian passport.  Unfortunately, Gabriel cannot change his status from B-1 to E-2 using his Italian passport after entering the U.S. on his Brazilian passport. The reason is that the U.S. immigration authorities consider the passport used for entry as the controlling document for determining eligibility for immigration benefits and status changes. In this case, since Gabriel entered the U.S. on his Brazilian passport, he would be subject to the limitations and restrictions associated with Brazilian citizens, including the fact that Brazil is not an E-2 treaty country. Therefore, he would not be able to utilize his Italian citizenship to apply for an E-2 visa while in the U.S. on his current B-1 status.  He would have to leave the United States and return on his Italian Passport to change his status within the USA.

During a visit to the U.S., a nonimmigrant is restricted to holding only one nationality.

• According to immigration laws in the United States, when a nonimmigrant enters the country, they are considered to have a single nationality for the duration of their visit. This means that even if a person holds dual citizenship, their nationality remains unchanged until they depart from the U.S. For instance, if an individual enters the U.S. using a Brazilian passport, they are regarded as a Brazilian national throughout their stay, regardless of their Italian citizenship.

Matter of Ognibene

The leading case on this topic is Matter of Ognibene, decided in 1983 by the United States Board of Immigration Appeals (BIA) which directly addresses the treatment of individuals with dual nationalities when temporarily visiting the United States. In this case, Ognibene, a 48-year-old who held Canadian and Italian citizenship, entered the U.S. using his Canadian passport. Despite also possessing Italian citizenship, Ognibene attempted to change his status to that of an E-2 treaty investor using his Italian passport, as only Italy was an E-2 treaty country at the time. However, the government denied his request.

The court concluded that for an individual to enter the U.S., they must have satisfactorily claimed or established their alien nationality or citizenship at the time of application and admission. In Ognibene's case, as he applied for admission and was admitted to the U.S. as a citizen of Canada, the court held that his continued presence in the country was strictly governed by his Canadian nationality.

Conclusion 

One cannot change their status to a different type of visa using a passport other than the one they entered the United States on.  The only exception to this general rule relates to people applying for Temporary Protected Status which will be discussed in a different blog article.  Consequently, individuals with dual citizenship must exercise caution and ensure they enter the U.S. using the passport they intend to use to apply for any immigrant or nonimmigrant status. Otherwise, they may need to depart the U.S. and reenter using their preferred passport.

Get in touch with us online, or by calling (214) 919-5250 to schedule a consultation to discuss your immigration visa needs.