Cross-Border U.S. Acquisitions: The Late Immigration Risk

The deal has cleared board approval, with a time pinpointed for the employee to be on the ground in New York City, ready to work.

When someone on the Monday call asked, “What’s the plan for getting the executive into the U.S.?” The only honest answer you can give is “We’re looking into it.”  

Questions are coming from all sides: the key executive, the family members, the board, HR employees…

The deal clock is running, yet you have the niggling sense that something important is being left unresolved. The immigration piece has no clear owner, and nobody has told you whether the assumed schedule is going to work. 

You’re expected to respond with details about a system you’ve never needed to touch up until now. What information you’ve pulled up online seems complex and inconsistent, seeming to address only U.S. employers and employees.

Cross-border U.S. acquisitions become risky when immigration is left until late because visa eligibility can depend on decisions made during deal structuring, including ownership, nationality, the relationship between the U.S. and foreign entities, the executive’s employment history, and timing. If those issues are not reviewed early, the deal structure may limit the E-2 or L-1 options available when the executive needs to relocate.

The Dangerous Assumption: “We’ll Sort the Visa After Closing”

The real “villain” in the scenario is the assumption that the immigration piece is end-stage paperwork, something to be “sorted out” after the deal closes, along with details such as signage and payroll.

In a cross-border executive transfer, the immigration answers must be discovered upstream, as part of the deal structure itself. Too often, the one variable with the longest lead time is often left until last.

Meanwhile, the immigration piece too often ends up as an “ownerless question” in any multi-party deal. (Who needs to take the lead on this? Is it U.S. counsel? UK or Irish counsel? Tax advisers? The corporate team?)

The Visa Risk Starts with the Deal Structure, Not the Forms

Most acquirers assume the visa route is a process problem (fill in forms, then just wait), when in fact it is a structure problem (the forms work only if the underlying decisions support them).

The frame that anchors the eligibility of the key person:

1. How is ownership of the new entity held?
2. Which entity will be the employer?
3. How do the entities relate to each other?
4. When does the new entity become official?

Note: The amount invested is rarely the thing that catches out acquirers.

The four upstream decisions: 

1. Who owns the entity and their nationality

• The E-2 Treaty Investor route depends on the U.S. enterprise possessing treaty-country nationality, which generally means at least 50% ownership by nationals of the treaty country (Ireland or the UK), traced through to the ultimate individual owners.
• The governing principle is that E-2 nationality follows ownership; it is not determined by where the company is incorporated. A U.S.-incorporated target does not carry treaty nationality on its own; the people who own it do.
• Some acquisition traps-specific traps include deals routed through a holding company, a fund with mixed-nationality investors, or one that brings in a minority co-investor. Even when a deal is commercially sound, any of these things can dilute treaty-country ownership to below 50%, taking E-2 off the table.
• The investment must be substantial, irrevocably committed and genuinely at risk, and be placed in a real and active enterprise that is not marginal. Broadly, it must have the present or future capacity to generate more than enough income to provide a minimal living for the investor and family or have the capacity to make a significant economic contribution.
• For a principal E-2 investor, the applicant must come to the United States to develop and direct the enterprise. An E-2 employee must have the same treaty nationality as the qualifying employer and must perform principally executive or supervisory duties or possess special qualifications that make the employee’s services essential to the efficient operation of the enterprise.
• There is no fixed dollar or pound minimum; the standard is proportional: ‘substantial’ relative to the total cost of the enterprise.

2. How the entities relate and the key person’s history

• The L-1 intra-company transferee route is the common alternative when the acquirer wants to move an existing executive or specialist rather than qualify as an investor-director: L-1A for executives and managers, L-1B for specialised knowledge.
• Two conditions, both timing-sensitive in an acquisition:

1. A qualifying relationship (parent, subsidiary affiliate or branch) must exist between the foreign entity and the U.S. entity.The acquisition can create this, but the structure has to establish the common ownership or control, and it has to be documented in a way the authorities accept.
2. The person being transferred must have been employed by the qualifying organisation abroad for one continuous year within the three years immediately preceding the petition or transfer.

• The acquisition trap: The executive you want in New York on Day One may not yet have the qualifying employment history with the right entity, or the corporate relationship may not yet be documented. That means the route that looked obvious may not be available on the timeline assumed when the deal was designed.
• The ‘new office’ point: Where the US entity is newly formed for the deal, or has been trading for less than a year, the L-1 new office rules apply: the initial petition is typically approved for one year only, with extension requiring evidence that the office is doing business and can support an executive or managerial role. Where the acquirer is buying an established, trading U.S. business, that is usually not a new office case, though the position can be less clear where the qualifying corporate relationship itself is newly created. 

3. The people already working at the target (immigration due diligence)

• The business being acquired may already employ people whose right to work depends on their immigration status (for example, H-1B, L-1, O-1, or E-2 holders). Whether the deal is a stock purchase or an asset purchase affects whether existing petitions carry over and whether amended filings or successor-in-interest treatment are needed.
• The effect of an acquisition on existing immigration cases depends on the visa classification and the transaction structure. Some H-1B cases, for example, may continue under statutory successor rules where the required conditions are met, while changes in ownership or control can have different consequences for L-1 and other petition-based classifications. That makes the target workforce’s immigration status a case-by-case due-diligence issue rather than something that should be assumed to carry over automatically.
• One diligence item that is routinely missed: If nobody checks, the acquirer can inherit, at closing, a workforce whose ability to work is disrupted. This can be a people problem and a value problem discovered at the worst possible moment in time.

4. Timing and the consular calendar

• For an applicant seeking an E-2 visa through consular processing in the UK or Ireland, the visa application is handled through the U.S. Embassy rather than through a USCIS petition and adjudication first.
• UK nationals apply through the London E-visa unit. As of August 2026, the U.S. Embassy in London states that the initial review time for an E-visa case is more than 90 working days, before the later stages of the process. That timing can change and should be checked against the Embassy’s current guidance when a deal timetable is being set.
• The source-of-funds and at-risk capital point: E-2 requires the investment to be irrevocably committed and genuinely at risk, with a clean, documented funding trail. In a PE or fund context, that trail can be complex; assembling it late compresses an already-tight window.
• The relocation date should drive backward-planning from the consular calendar (this works only if immigration is in the room while the timeline is being set).

The Ireland and UK dimension

• The UK and Ireland are both E-2 treaty counties, but under different instruments. UK nationals qualify under the 1815 Convention of Commerce and Navigation. Irish nationals qualify under the 1950 Treaty of Friendship, Commerce and Navigation between Ireland and the United States, as supplemented by the Protocol signed 24 June 1992 (in force 18 November 1992).
• For UK applicants, nationality alone is not the whole test. The 1815 Convention applies to UK nationals who also meet the treaty’s ‘inhabitant’ requirement, meaning they reside actually and permanently, and are domiciled, in the territory covered by the treaty.
• Irish nationals are fully eligible for both E-1 and E-2; Ireland has had E-1 availability since the 1950 Treaty and is notexcluded from E-1 eligibility.
• Dual nationals (common among senior executives) must consider which nationality to apply under, because the treaty basis, and sometimes the practical filing path, differs depending on that choice.
• This is exactly the kind of analysis a UK or Ireland-focused U.S. visa and nationality lawyer does at the structuring stage (and precisely what a U.S.-based generalist or corporate deal lawyer is not positioned to spot).

What ‘good’ looks like

When immigration is treated as a deal workstream rather than as an afterthought, the picture changes dramatically.

The visa route is assessed early against the actual ownership and nationality. The corporate relationship is documented to support the transfer. The consular lead time is built into the relocation plan. The deal team knows in writing, before capital is committed whether the plan, they are assuming works.

With a clear plan, you will have the confidence to tell the board a realistic date; you will be able to stop carrying that worry that the immigration piece might unravel your deal.

 The best time to ask the immigration question is while the structure is still being decided. A short conversation early is far cheaper than a deal restructuring late.

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.