The Cost of Waiting Too Long to Check Whether the U.S. Move Actually Works

The Cost of Waiting Too Long to Check Whether the U.S. Move Actually Works

29 Jun The Cost of Waiting Too Long to Check Whether the U.S. Move Actually Works

Posted at 08:00h in Investor by

The board approved the U.S. move three months ago. The deal is progressing.

Leadership has asked when the employee can start work in the U.S. The executive who is going to run the U.S. operation has already started telling family members about the transfer, and is asking when they can give notice on their flat.

Amidst all this, you realize, there is a certain item on your to-do list that has not been moved forward in six weeks: “Sort out the visa piece”. Is that step going to present a problem?

At a glance: UK and Irish investors should test the U.S. immigration plan before the deal structure, relocation date, or investment route is finalised. Waiting too long can affect E-2 or L-1A eligibility, delay when the executive can legally work in the U.S., increase restructuring costs, and, for regional center EB-5 investors, risk missing the 30 September 2026 grandfathering protection. For most investors, the safest time to involve a U.S. immigration lawyer is before closing, not after.

The following article explains what actually happens when UK and Irish investors delay testing the immigration side of a U.S. move: what it costs, which decisions become irreversible, and how to tell whether your current timeline is realistic or a mere polite fiction.

The four things people assume that usually turn out not to be true

1.  “The visa will sort itself out once the deal is done.”

  • The assumption: immigration is an administrative step, like opening a U.S. bank account or setting up payroll. It can wait until after closing.
  • The reality: structural decisions made during the deal, such as entity type ownership splits, board composition, and holding-company structure directly determine which visa routes are available. By the time the deal closes, some routes may already have been disqualified by the structure the commercial lawyers have put in place.

2.  “We’re investing real money, so the visa will follow.”

  • The assumption: if the capital commitment is substantial, immigration will be straightforward.
  • The reality: for the E-2, investment size is not the decisive factor. What matters is the treaty-country nationality of the acquiring entity (specifically, that the U.S. enterprise is owned at least 50% by nationals of a treaty country), the investor’s operational control, whether the enterprise is genuinely active and more than marginal, and whether the capital is irrevocably committed and at risk. For the EB-5, the investment must be at risk, the funds must be lawfully sourced with full documentation, and the enterprise must create, or in limited troubled-business circumstances preserve, at least 10 full-time jobs for qualifying U.S. workers. Capital commitment alone qualifies for nothing.

3. “London processing takes a few weeks.”

  • The assumption: once the paperwork is ready, is that the U.S. Embassy in London will process the application quickly.
  • The reality: UK nationals applying for an E-2 through the U.S. Embassy in London should plan around the London E-visa unit’s current review period, which is approximately 90 working days. That is the review period after a complete application package is submitted. It does not include the time needed to prepare the filing, address any follow-up request, attend any required interview, or complete any additional processing. In an individual L-1A case, the petition is adjudicated by USCIS first. EB-5 is measured in months and years, not weeks.

4. “We can always use the Gold Card if we need to move fast.”

  • The assumption: the recently introduced Gold Card offers an expedited route for high-net-worth individuals, and that might be a fallback.
  • The reality: the Gold Card is an Executive Order programme signed on 19 September 2025 and launched publicly in December 2025. The programme directs applicants through existing EB-1 and EB-2 immigrant visa numbers based on a $1 million payment by an individual or $2 million for a corporate sponsor, plus a $15,000 non-refundable processing fee per person. Whether the payment can lawfully substitute for the merit-based standards Congress wrote for EB-1 and EB-2 is the live question: a federal lawsuit filed in February 2026 by the American Association of University Professors and others alleges that it cannot. The programme is not authorised by Congress, has produced very few verified approvals to date, and exists under active legal challenge. It is not a fallback. It is a separate, conditional, politically contested route that should be discussed with a lawyer who is tracking the litigation, not assumed as a plan.

What “waiting” actually costs: the four currencies

1. The cost paid in time

  • Consular processing windows do not compress. Once the deal requires the managing director to be in the U.S. by a given date, the immigration timeline either fits or it does not. If the E-2 requires approximately 90 working days at the London E-visa unit, and the MD is needed in New York in 10 weeks, the timeline does not match, and no amount of urgency escalates it meaningfully.
  • Source-of-funds documentation takes longer than investors expect, particularly where funds originate in PE or VC structures, involve multiple jurisdictions, are held in trust, or derive from pre-existing corporate gains. Building the evidentiary file is itself weeks of work before the application is even drafted.
  • A Request for Evidence (RFE) from USCIS, or a consular return for additional documentation, adds months, not weeks. In a deal context where the MD’s start date is contractually or commercially committed, those months are operationally expensive.

2. The cost paid in money

  • Post-closing restructuring to fix an immigration problem is the most expensive immigration work there is. Undoing an ownership split to meet the E-2 50% treaty-nationality threshold, for example, involves corporate counsel, tax counsel, and sometimes regulatory approval, on on top of the immigration fees.
  • Filing the wrong route first and then re-filing the right one is roughly twice the legal spend, plus the government filing fees, plus the lost time.
  • Premium processing is available for some USCIS petitions (L-1A, for example) for an additional fee, but it accelerates only the USCIS adjudication, not the consular step that follows. It is a useful tool, not a rescue plan.
  • Emergency appointments at the U.S. Embassy are granted sparingly and only for documented exceptional circumstances. “The deal is closing” is not ordinarily sufficient.

3. The cost paid in the deal itself

  • The managing director cannot legally work in the U.S. on the date the deal requires. Operations stall. The transition plan the board signed off on no longer holds.
  • The investment thesis depended on a particular person being in a particular role in a particular jurisdiction by a particular date. If the visa does not come through, the thesis does not either.
  • In competitive M&A contexts, a delay that pushes integration into the next quarter can affect earn-outs, employee retention, and partner confidence.
  • There is reputational cost to the investor inside their own organization; “We assumed this would be fine” is a sentence no investor wants to say to their board.

4. The cost paid in forfeited protection (the EB-5 grandfathering deadline)

  • The EB-5 Regional Center Program is authorised through 30 September 2027. The separate grandfathering protection under the EB-5 Reform and Integrity Act of 2022 applies to qualifying petitions filed on or before 30 September 2026. For regional center investors, that usually means filing Form I-526E by that date. Filing after 30 September 2026 may still be possible before the programme’s 2027 sunset, but those later filings do not carry the same statutory protection if Congress fails to reauthorise the programme.
  • The distinction matters. An investor who files a Form I-526E petition on or before 30 September 2026 is protected by the grandfathering provision. Their petition must continue to be adjudicated under the rules in place at filing, even if the programme lapses, is not reauthorised, or is restructured afterwards.
  • An investor who files after 30 September 2026, but before 30 September 2027, can still file, but is not grandfathered. If the programme is not reauthorised in 2027, their petition is exposed.
  • For UK and Irish investors considering EB-5 as part of a long-term residency plan, the 30 September 2026 deadline is a form of insurance. Missing it by a week is the difference between a protected petition and an exposed one. This is genuine urgency, not manufactured pressure.

How to tell whether your current timeline is realistic

A short self-check: five questions to ask yourself this week:

  1. By what date does the executive actually need to be working in the U.S.? Not the aspiration. The operational deadline. Write it down.
  2. Who owns the acquiring entity? If it is a fund, a holding company, or has multiple shareholders, can you state what percentage is held by nationals of a single treaty country (UK, Ireland)? If not, the E-2 treaty-nationality test may be a live question.
  3. What is the corporate relationship between the UK or Irish entity and the U.S. entity going to be after the deal closes? For L-1A, a qualifying parent-subsidiary, branch, or affiliate relationship is essential. For acquisitions, post-closing structure matters.
  4. Does the managing director have a documented history of managerial or executive employment with the foreign entity for at least one continuous year within the three years preceding the proposed transfer? L-1A requires this, and in an acquisition context, it is often overlooked.
  5. Is the goal a temporary business presence, or U.S. permanent residency? For the executive? For the investor? For the family members? The answer changes which route is right. If the answer is “both, eventually”, the plan needs to support both from the start.

What a realistic conversation with a U.S. immigration lawyer sounds like:

  • A good adviser will tell you, in the first conversation, which route fits your deal structure, and which does not. They will not hedge every answer.
  • They will give you a realistic timeline based on the specific consular post, the specific visa category, and the realistic preparation time given your source-of-funds complexity.
  • They will tell you if your current assumptions about timing, structure, and eligibility are wrong. Cleanly. Without theatre.
  • They will tell you when waiting is fine. Sometimes it actually is. Knowing that can prove valuable.

The EB-5 deadline: why 30 September 2026 is not a marketing device

(The EB-5 deadline is routinely misrepresented in marketing content.).

  • The EB-5 Regional Center Program is currently authorised through 30 September 2027 under the EB-5 Reform and Integrity Act of 2022.
  • The Act also contains a separate grandfathering provision that expires one year earlier on 30 September 2026. Petitions filed on or before that date must continue to be adjudicated under the rules in place at filing, regardless of what happens to the programme afterwards.
  • Petitions filed after 30 September 2026 but before 30 September 2027 are still legally permissible, but they are not grandfathered. If Congress does not reauthorise the programme before it expires in 2027, those petitions are exposed.
  • For UK and Irish investors, there is currently no EB-5 country-of-birth backlog in the Visa Bulletin. That makes visa availability more favourable than for investors born in countries with EB-5 backlogs. It does not make the overall EB-5 timeline short or guaranteed. The timeline still depends on the project type, I-526E processing, source-of-funds complexity, consular processing, and any additional USCIS or consular requests.
  • I-526E petitions under post-RIA adjudication are currently approved at rates above 90%, with aggregate denial rates running at approximately 3% across all categories. That is not a guarantee, but it is a strong signal about programme administration since the Reform and Integrity Act took effect.
  • For an investor who has been considering EB-5 for 12 months without committing, 30 September 2026 is the date by which procrastination starts costing real protection.
Janice Flynn, a U.S. visa and nationality lawyer in the UK and Ireland

“After decades of working in the field of immigration law, I see my role, not as handing down solutions, but as providing, to UK and Irish business leaders, the clear, honest, and actionable information needed in applying for U.S. visas.”

Janice Flynn, a U.S. visa and nationality lawyer in the UK and Ireland

What good timing actually looks like:

  • The immigration lawyer is briefed while the deal structure is still being negotiated. This happens before, not after, the term sheet is signed, and certainly not after closing.
  • The viable visa routes are identified in writing after the first consultation, with honest probability assessments and named structural dependencies.
  • Source-of-funds documentation is scoped and started early, not after the application is drafted, but in parallel with the commercial due diligence. The deal timeline and the immigration timeline are reconciled before the operational plan is committed to leadership, to partners, or to the executive’s family.
  • Structural changes (ownership splits, entity type, board composition) that affect visa eligibility are flagged and addressed before closing.
  • If EB-5 is part of the long-term plan, the grandfathering deadline is built into the filing schedule from the outset.
  • All parties involved move through the process feeling informed, not reactive.

What to do next

The cost of waiting on the immigration side of a U.S. move is not theoretical.

It is paid in time, money, and deal integrity. For EB-5, the cost is manifested in terms of the expiration of statutory protection. The right moment to test whether your move actually works is before the deal structure is locked in, before the executive’s relocation date is promised, and before the grandfathering deadline passes. For most UK and Irish investors, the right moment is earlier than they think.

 

This post is for informational purposes only and is not intended as legal advice. If you require further assistance or advice relating to the above, please contact janice@flynnhodkinson.com.

Book an initial meeting with Janice Flynn
Frequently Asked Questions

1. When should we speak to a U.S. immigration lawyer about a U.S. expansion or acquisition?

You should speak to a U.S. immigration lawyer before the deal structure is finalised. Ownership, control, entity structure, and the relationship between the UK or Irish company and the U.S. entity can all affect which visa routes are available. It is much easier to test those issues before closing than to fix them afterwards.

2. Can we wait until the deal is done before dealing with the visa?

Sometimes, but it is risky. If the visa route depends on ownership structure, treaty nationality, corporate control, or a qualifying relationship between entities, waiting until after closing may mean the structure has already created an immigration problem. Immigration should be checked while the commercial terms are still flexible.

3. Does investing a large amount of money automatically make the visa easier?

No. For E-2, the amount invested matters, but it is not the only issue. The investment must be substantial, committed, at risk, and tied to a real operating business. The ownership and treaty nationality of the enterprise also matter. For EB-5, the source of funds, job creation, and correct filing route are central. Capital alone does not solve the immigration question.

4. How long does an E-2 visa take through the U.S. Embassy in London?

UK nationals applying for an E-2 through the U.S. Embassy in London should plan around the London E-visa unit’s current review period of approximately 90 working days after a complete application is submitted. That does not include preparation time, document collection, source-of-funds work, interview scheduling, follow-up requests, or any additional processing.

5. Can premium processing solve a tight U.S. start date?

Not usually. Premium processing may help with some USCIS petition stages, such as an individual L-1A petition, but it does not speed up the consular stage that follows. It also does not remove the need for a complete petition, a suitable visa category, or proper supporting evidence. It is useful, but it is not a rescue plan.

6. Can the managing director start working in the U.S. while the visa is pending?

Not unless they have the correct U.S. work-authorised status. A business visitor may be able to attend certain meetings or carry out limited permitted activities, but they cannot simply begin running the U.S. business or performing productive work in the U.S. before the correct visa or status is in place.

7. Does the L-1A work for every acquisition?

No. L-1A depends on the corporate relationship between the foreign entity and the U.S. entity, as well as the employee’s prior qualifying employment. In an acquisition context, the post-closing structure matters. The managing director must also have the required history of managerial or executive employment with the foreign entity.

8. What does the EB-5 deadline on 30 September 2026 mean?

For regional center EB-5 investors, 30 September 2026 is the grandfathering deadline under the EB-5 Reform and Integrity Act of 2022. A qualifying petition filed on or before that date may keep statutory protection even if the programme later lapses or changes. Filing after that date may still be possible before the programme’s 2027 sunset, but it does not carry the same protection.

9. Is the Gold Card a reliable fallback if we need to move quickly?

No. The Gold Card is not a simple fallback for an investor or executive move. It is an Executive Order programme tied to existing EB-1 and EB-2 immigrant visa categories, and it remains legally and politically uncertain. It should be discussed with a lawyer who is tracking the programme and litigation, not assumed as a practical plan.

10. What information should we have ready before speaking to a U.S. immigration lawyer?

You should be ready to explain the proposed U.S. move, the ownership structure, who will own and control the U.S. entity, when the executive needs to be in the U.S., what role they will perform, where the investment funds are coming from, and whether the goal is temporary U.S. business presence, permanent residency, or both. The clearer those facts are, the faster the lawyer can test whether the plan actually works.

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April 15, 2014

Recently the headlines reported that Nigella Lawson was not allowed to board a flight to the US in Heathrow this...

April 5, 2014

The US government shut down that took affect last night will not affect the processing of visa applications at the...

October 1, 2013

July 1, 2013

June 8, 2013

Today is the first anniversary of the opening of the Law Office of Janice A. Flynn. It’s been a really...

February 1, 2013

Individuals issued US immigrant visas on or after February 1, 2013 must pay an additional $165 immigrant fee to theUS...

December 14, 2012

Jonathan Strassberg is a UK-based US commercial lawyer who advises small and medium sized businesses on businesses issues related to...

November 6, 2012

How Do I Minimize My Risk When Buying a US Business When Applying for an E-2 Treaty Investor Visa? The E-2...

September 14, 2012

The Electronic System for Travel Authorization or, “ESTA” is a fairly new system implemented in 2009 for those who wish...

August 27, 2012

Maybe you’ve been working hard all your life and you want a change. Or you may have visited the US...

August 13, 2012

In this economy more than ever companies have to keep business moving as quickly as possible. For multinational companies this...

May 8, 2012

1. There isn’t a one-size fits all US visa. Get good advice on which is the best US visa for...

April 25, 2012

E-2 visa category can be used for a whole spectrum of sizes and types of businesses from small mom and...

April 24, 2012

Its April which, in addition to April Fools Day and April Showers there is what fellow immigration lawyers call the...

April 10, 2012

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