20 Apr You Need to Move a Key Employee to the U.S.
Here Is How to Find Out Whether It Is Actually Possible.
Your business needs to relocate an employee to fill a position in the company’s U.S. location. The pressure is building quickly, because a client matter is at stake, and the U.S. office needs support.
Your employee wants to know what this means for their role in the company, as well as the timing anticipated for the move, which involves family members as well.
And right now, you cannot offer definitive answers. Is there actually a visa route that works for this person, within your timeline, given the structure your business has and the planned project launches?
While a natural assumption might be that the next step is to begin gathering documents and assigning staff to inquire about visa categories. You realize the challenge is more fundamental. Do the facts of this specific case fit any viable U.S. immigration route? And even if they do, a crucial question remains: Is the timeline needed for that route realistic, given the urgency of your business needs?
As a leader, you are acutely aware that “false starts” add unnecessary stress to an already stressful situation. You have already searched, finding government guidance written for American employers, not UK businesses. You’ve perused law firm websites listing U.S. visa categories. But those failed to make clear to you which, if any, fits the situation at hand.
The following article sets out the questions that determine whether a U.S. work visa is realistic for your specific employee and situation: why none of those questions can be answered from a website, what each consideration means in practice for a UK or Irish business, and what the right first step looks like once you have worked through those considerations.
At a glance: Can my employee get a U.S. work visa?
To find out whether a U.S. work visa is realistic for your employee, start with five questions: what they will do in the U.S., how long they need to be there, what U.S. business structure is in place, whether nationality affects the route, and which options fit your timeline. The right answer depends on the facts, not just the visa category.
Each answer changes which visa categories are available and how strong the case is. None of them can be reliably assessed from a checklist or a government website.
What U.S. Visa Routes Might be Available?
6 Reasons This Question is Harder to Answer Than It Looks:
U.S. immigration law is discretionary. The outcome depends on the specific facts of the case, not just on the category.
- There is no universal “employee transfer visa.” The right route depends on multiple factors that cannot be assessed from a website.
As just one example, the L-1 route requires a qualifying relationship between the overseas business and the U.S. entity, such as a parent, branch, affiliate, or subsidiary, and the employee must usually have completed one continuous year of qualifying employment abroad within the previous three years.
- Certain visa categories are tied to the nationality of the employee.
E-1 and E-2 eligibility depends heavily on nationality. The U.S. enterprise must have the nationality of a treaty country, usually through at least 50% qualifying ownership or if the company is publicly traded on its country’s stock exchange, and an employee applicant generally must share that treaty nationality. That is why the analysis can differ for UK nationals, Irish nationals, and third-country employees
- Urgency of the situation will play a role. Would a delay nullify the reason for the transfer?
Processing times vary widely. Some categories, such as cap-subject H-1B, are tied to annual registration and filing cycles, while others, including L-1 and E visas, are not. How urgent is the need for the employee?
- The type of activities the employee will perform in the U.S. will be a factor.
The permitted activities and duration of stay are different across visa categories. A person attending meetings is treated differently from one providing services.
- Visa information available online is almost entirely written for U.S. employers, not UK or Irish businesses.
The type of visa you must obtain is defined by U.S. immigration law.
- Applying for the wrong visa category may create complications for future applications.
Applying under the wrong category can create complications later. Depending on the route, USCIS may deny the petition or application, and if consular processing is required, a consular officer may still refuse the visa.
A realistic first step: a need-to-know professional assessment of the facts
The purpose of an initial meeting with a U.S. visa and nationality lawyer in London is not to confirm that what you hope to accomplish is possible, it’s to give you a realistic view of what is and what is not possible.
At Flynn Hodkinson, the initial meeting covers:
- the facts of your case
- the visa options available given those facts
- the realistic outcome
- the strategy
- the procedures
- the timing
- the costs
Janice Flynn cautions: Not every case can proceed. Sometimes the honest answer is that obtaining a visa is unlikely to happen at this time. That advice may be hard to hear, but it’s more valuable than spending months and money on a case that cannot succeed.
You deserve to leave the consultation with 3 things:
- a clear assessment
- a defined route (if one exists)
- the ability to make an informed decision
“My role is not to formulate a solution or decide on a course of action. It is to give you an honest realistic picture of the situation, before a problem becomes a crisis.”
A Note to HR And People Teams Managing Employee Transfers Internally
You’ve been tasked with managing the process of moving an employee to the U.S., acting on behalf of both leadership and of the employee and family members. While the CEO may be the formal decision-maker in this process, you’re left fielding questions from multiple directions:
- The employee wants to know what will happen to family members, housing, schooling, healthcare, transportation, the timing of it all.
- Leadership wants to know about timelines, costs, liabilities.
- You are feeling under pressure to understand a complex legal process, one you’ve never needed to navigate before.
Resist the pressure to provide answers before you have expert input. Vague reassurances create bigger problems later. A consultation with a U.S. visa and nationality lawyer will prepare you to:
- brief your CEO clearly
- manage your employee’s expectations honestly
- keep the internal process CALM
Is A U.S. Work Visa A Possibility for Your Company’s Employee?
Many factors will come into play, including the nationality of the employee, the type of activities the employee will be performing, and the commitment by the U.S. employer. Acting early is what offers your business the most options. The process is not always straightforward, but it is manageable with the right advice.
1. Can my employee get a U.S. work visa?
Possibly, but there is no single answer that applies to every case. The right route depends on the employee’s planned U.S. activities, the length of the assignment, your existing U.S. business structure, the nationality of the employee and sometimes the business, and the timing. There is no universal answer that applies to every situation. The right first step is a consultation with a U.S. immigration lawyer who can assess the actual facts before any decisions are made.
2. What is the difference between the L-1, H-1B, E-1/E-2, and B-1 routes? Which is right for a UK business?
They solve different business problems. The L-1 route is for intracompany transfers to a related U.S. office and generally requires at least one continuous year of qualifying employment abroad within the previous three years. The H-1B route is for specialty-occupation roles petitioned by a U.S. employer and, for new cap-subject cases, timing can be affected by the H-1B cap process. E-1 and E-2 are treaty-based routes for qualifying traders, investors, and certain employees, with nationality rules that matter for both the enterprise and the employee. B-1 is not a work visa at all; it is for limited business-visitor activity such as meetings, consultations, conferences, and contract negotiations. If a person who could otherwise travel to the US under an ESTA, applies for a B-1 visa and is denied, then they will likely be blocked from entering the US as a new ESTA application is required after a visa application is denied at a US consular post.
3. Does my employee need a U.S. employer to sponsor the case?
Not always. For H-1B, a U.S. employer normally files the petition. For L-1, the transfer must involve a qualifying relationship with a U.S. company or office. For E-1/E-2 employee cases, the analysis focuses on the treaty enterprise, its nationality, and whether the employee shares the nationality of the principal employer. A B-1 business visitor may enter for limited business purposes, but that does not authorize ordinary U.S. employment.
4. How long does a U.S. work visa take to process?
Processing times vary significantly depending on the visa category, the consulate involved, and whether premium processing is available. The L-1 involves a two-step process: a USCIS petition followed by a consular visa application. Premium processing is available for the USCIS stage and guarantees a response within 15 business days. The H-1B is subject to an annual cap lottery with a single registration window each March; if a case is not selected, the next opportunity is twelve months away. E-1 and E-2 applications are made directly to the US Embassy or Consulate and do not require a prior USCIS petition, which can reduce overall timelines. We advise clients to begin the legal assessment as early as possible, before internal commitments are made.
5. Can my employee travel to the U.S. for meetings while the work visa is being assessed or prepared?
Sometimes, yes. A business visitor may travel for activities such as meetings, consultations, conferences, and contract negotiations under a B Visitor visa or visa-free under the Visa Waiver Program with an ESTA. But the ESTA and a B-1 visit are not appropriate for regular productive work or ordinary employment in the United States. If the planned activity crosses that line, the business should use the correct work-authorized route instead.
6. Does our UK business need a U.S. employer to sponsor the visa, or can we do it ourselves?
It depends on the visa category. For the L-1, the US entity within your existing corporate group (a US parent, subsidiary, or affiliate) usually acts as the petitioner and files with USCIS. For the E-1 and E-2, the UK or Irish business itself is the sponsoring entity, and no separate US petition filing is required; applications are made directly to the US Embassy or Consulate. For the H-1B, a US employer must file the petition as the formal sponsor and take on defined legal obligations. This is the only route among the three that requires involvement from a US company. Understanding which entity in your structure can petition, and under which category, is one of the most important early questions in any corporate visa assessment.
7. What happens if a U.S. visa application is refused?
A refusal does not necessarily end the matter, but it changes it. Refusals are recorded and can affect the employee’s record for future applications but it depends on why the visa application was denied. For example, an applicant may be denied a visa due to a prior criminal caution of conviction so it is important to know if the applicant has a prior criminal issue to anticipate any issues when applying for the visa. Re-filing without properly addressing the reason for the original refusal creates further risk and may compound the problem. For visa categories that require a USCIS petition (such as the L-1 and H-1B) a denial can be appealed or a motion to reconsider filed, but the grounds for doing so are limited. We recommend specialist legal advice before any re-application or appeal. The most effective protection against refusal is a thorough legal assessment of the facts before the initial application is filed.
8. Can the employee’s spouse and children come too?
In many cases, yes. Spouses and children under 21 can generally apply as dependents in categories such as L-2, H-4, E-dependent status, and O-3, depending on the principal visa. Work rights differ by category: E and L spouses are generally employment-authorized incident to status, while only certain H-4 spouses may apply for employment authorization.
9. How much does a U.S. work visa cost?
The total cost depends on the visa category and the complexity of the case, and includes legal fees, US government filing fees, and outside costs such as translation, document certification, biometrics, and consular application fees.
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