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What does it mean to be a U.S. person so that U.S. economic sanctions apply to you personally or to your company? It is very confusing, the various terms used by US immigration, OFAC (Office of Foreign Asset Control) and the IRS (the tax authority of the U.S.). You may be aware of the definition of a U.S. worker for immigration purposes, or, say, the nationality of a company for E-2 visa purposes. However, beware, OFAC uses terms with totally different meanings when applying US economic sanctions.
You may mistakenly believe that because you are not a U.S. citizen or permanent resident, that U.S. economic sanctions do not apply to you. Guess what? If you are physically present in the U.S., regardless of your immigration status, OFAC’s rules and regulations regarding economic sanctions apply to you. Even if you have only been in the U.S. for one day, and you just came on a B-1 visitor for business visa, US economic sanctions rules apply to you. Even if you are an asylum applicant who currently has no work permit and no social security number, U.S. economic sanctions rules apply to you.
OFAC’s definition is of course completely different from that of the U.S. Department of Labor when discussing PERM labor certification. In the context of a labor certification application, only U.S. citizens, lawful permanent residents, conditional residents and asylees and refugees (those already granted asylee or refugee status, NOT applicants) are considered U.S. workers.
A U.S. person for U.S. economic sanctions purposes can also be a business. Again, the view from the immigration side is totally different from that on the economic sanctions side. Suppose you have a corporation here in the U.S., and more than 50% of it is owned by Pakistani citizens, it is considered to have the nationality of Pakistan for E-2 treaty investor purposes. Or, for example, a company in the U.S. which is 100% owned by its Canadian parent company would be considered to have Canadian nationality for purposes of immigration and applying for an E-2 treaty investor visa. However, because both of these companies were incorporated here in the U.S., they are still considered U.S. persons and must comply with U.S. economic sanctions rules. All entities within the U.S. are considered U.S. persons under OFAC’s rules. Indeed, all branches abroad of U.S. incorporated entities are also considered U.S. persons. Depending on the program, foreign subsidiaries owned or controlled by a U.S. company may also have to comply.
Additionally, U.S. economic sanctions rules apply to U.S. citizens and permanent residents no matter where in the world they are. So, for example, a U.S. citizen who has been living in France for ten years and has not even come to the U.S. for a visit, would still be subject to U.S. sanctions rules. The application of economic sanctions can get even more complicated, because some rules apply to non-U.S. persons as well.
Thus, the point is, that you cannot make assumptions that because you know a definition in one area of the law, that the same definition applies in other areas. As we can see, the meanings can be completely different.
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