Your UK Tech Company is Opening a U.S. Office. Who Should Go First, and on What Visa?

The board has said yes. Office viewings in Boston or Austin are booked.

When the question “So, who’s going?” comes up, three names go on the whiteboard: the COO who has been with you six years, the head of engineering (who joined nine months ago), and a co-founder whose passport is not British.

The general assumption appears to be that there will be a visa for whomever you choose, and that the matter can be sorted out once the lease is signed. You have an uneasy feeling that there’s a lot more to it than that.

Choose a U.S. visa lawyer by checking three things before you discuss price: 1. They are admitted and in good standing in a U.S. jurisdiction and can explain how they will formally represent you in your matter. If the case includes a USCIS filing, that will normally include Form G-28. 2. They will tell you which routes they have ruled out and why. 3. Scope, fees and outside costs are set out in writing.

Most of the UK companies Janice advises on a first US office arrive with the same question, “which visa?”, and leave with a better one: “who goes first?”

Why “Which visa?” is the wrong first question

Who should go first?

Start with the work the U.S. operation needs during its first months, then assess who can lawfully perform it. A manager may be the right first mover, but some businesses need a qualifying specialist first. Each employee requires an individual eligibility assessment, and the company may use different visa categories for different people. 

CEOs who handle this well treat the U.S. launch like a product launch, mapping dependencies before dates. 

1. The first mover’s job: hire, sign, set up, report back. 

• The first L-1A transferee must have managerial or executive authority over the new operation.

• The right first mover is not always the most senior person or founder.

2. Three tests to run before calling anyone:

Tenure. Has the person worked for the UK company, or an affiliate abroad, for one continuous year in three years before filing?

Nationality and ownership. Is the person a UK national, and is the company at least 50% owned by UK nationals?

Role. Will this person be a) managing people b) managing a function in the U.S. c) be doing hands-on work?

The L-1 new office visa, and what the one-year clock really means

For L-1 purposes, a “new office” is an organisation that has been doing business in the United States through a qualifying parent, branch, affiliate or subsidiary for less than one year. The initial new-office petition can be approved for no more than one year.

1.  The requirements: 

• A qualifying relationship between the UK company and the U.S. entity (parent, branch, subsidiary, or affiliate), with both continuing to do business for the whole of the employee’s stay.
• The employee must generally have completed at least one continuous year of qualifying full-time employment outside the United States within the three years before the petition is filed. Employment with a qualifying parent, branch, subsidiary or affiliate may count. For an L-1A new-office petition, that year must have been in a managerial or executive capacity. For L-1B, the qualifying overseas employment may have been managerial, executive or specialized knowledge, but the proposed U.S. role must require specialized knowledge.
• Sufficient physical premises secured in the U.S. before filing.
• For L-1A, evidence the office will support a managerial or executive role within one year: the business plan, the size of the US investment, and the UK company’s ability to pay the employee and start trading.
• For L-1B, being a skilled engineer is not enough by itself. The evidence must explain the employee’s qualifying knowledge of the organisation’s products or services, or advanced knowledge of its processes and procedures, and why the U.S. assignment requires that knowledge.

2. Process:

• USCIS petition on Form I-129 with the L Supplement. Premium processing is available for eligible L-1 petitions. It requires USCIS to take an adjudicative action within 15 business days, which may be an approval, denial, Request for Evidence or Notice of Intent to Deny. It does not guarantee approval or include embassy appointment and visa-issuance time.
• The gap: New office approval is for up to one year. The extension asks whether the office has grown enough to support the role (the second wave and the first local hires are evidence in the first person’s case).
• Under USCIS guidance issued on 5 August 2026, officers may deny a petition that lacks required initial evidence without first issuing a Request for Evidence or Notice of Intent to Deny. Employers should submit a complete, well-supported petition rather than assume they will receive an opportunity to supply missing evidence later.
• Blanket L is not available to a new office; it requires an established U.S. presence and size thresholds.
• Look ahead: L-1A allows up to seven years in total, L-1B five. Some multinational managers or executives may later qualify for lawful permanent residence through EB-1C. The U.S. employer must have been doing business for at least one year, and the case must independently satisfy the qualifying corporate relationship, overseas employment and managerial or executive role requirements. L-1A approval does not automatically establish EB-1C eligibility.

The E-2 visa, and the ownership test tech companies too often miss 

1. Facts to know:

• The UK is an E-2 treaty country under the Convention of Commerce and Navigation of 1815.
• British nationality alone does not complete the UK treaty analysis. The treaty also contains a residence-and-domicile requirement. A British applicant living outside the territory covered by the treaty therefore needs a separate assessment before relying on the UK E-2 visa.
• For an E-2 case relying on UK treaty nationality, at least 50% of the U.S. enterprise must have qualifying UK ownership, assessed through the relevant ownership chain. UK incorporation alone does not establish treaty nationality. Shares held by U.S. lawful permanent residents do not count towards the qualifying treaty-national ownership.
• The U.S. enterprise must be a real commercial business supported by a substantial investment that is committed and at risk. It must also meet the separate requirement that it is not marginal. An E-2 employee must share the enterprise’s qualifying treaty nationality and perform executive or supervisory duties, or have special qualifications essential to its efficient operation. The employee does not necessarily need to make the investment personally.
• The employee must have UK nationality, fulfil either an executive or supervisory role, or possess skills essential to the business’s efficient operation.

2. Gaps to avoid:

• The cap table. Ownership is traced to the nationality of the individuals behind it. A funding round can remove the enterprise’s qualifying UK treaty nationality. Whether another treaty nationality could support an E-2 case requires a separate assessment. Look at the cap table before the visa plan, not after.
• The passport. An employee who does not hold the enterprise’s qualifying treaty nationality generally cannot obtain an E-2 employee visa through that enterprise. Check all nationalities held; possession of another country’s passport does not rule out dual British nationality.
• The new joiner. E-2 has no one-year tenure rule, so a UK national hired recently may still have a visa when L-1 is closed.
• An applicant applying directly for an E-2 visa from abroad generally does not need a prior USCIS petition approval. The application is submitted to the appropriate U.S. embassy or consulate under that post’s procedures. Form DS-160 is required; E-2 executive, managerial and essential employees also require Form DS-156E. Follow the post’s current supporting-document instructions.
• Person is admitted for up to two years at a time, renewable while the business qualifies, with no fixed overall limit. Visa validity for UK nationals is set by the reciprocity schedule. E-2 applicants must intend to depart the United States when their E-2 status ends.

Before anyone moves. What you can and cannot do on an ESTA

1. Most first trips happen under the Visa Waiver Program with an ESTA. What you can and cannot do

Permitted:

• meetings with business contacts
• negotiating contracts
• site visits
• conferences
• seeking investment.

Not permitted:

• running the office
• doing the hands-on work
• being paid by the U.S. business.

Business visitors may undertake permitted activities such as meetings and contract negotiations. They cannot use a visitor admission to run the U.S. operation or perform its ordinary productive work. Keeping someone on UK payroll, or leaving them unpaid, does not by itself make the activity permissible. U.S.-source salary for services is generally prohibited, although reimbursement of reasonable incidental travel and living expenses may be permitted.

2. The officer at the border decides.

• A pattern of long, frequent visits can look like working without status, and that can follow the person into their later visa interview.
• Each ESTA visit is up to 90 days, with no extension and no change of status inside the U.S.
• Where the visa is applied for: since 6 September 2025, applicants generally apply in their country of nationality or residence. Nonimmigrant visa applicants should generally apply in their country of nationality or residence, subject to designated-post arrangements and exceptions. A British citizen living in Lisbon may therefore have a basis to apply in Portugal or the United Kingdom, depending on the category and post procedures. Confirm the appropriate location before building the timetable.

The people decision inside the visa decision

• L-2 and E-2 spouses are authorised to work incident to status, evidenced by an I-94 record annotated L-2S or E-2S. O-1 spouses (O-3) cannot work.
• Children can study but not work, and lose dependent status at 21.
• A one-year first approval shapes family decisions: lease length, school places, when to sell or let the UK home.
• Most applicants, including family members, should expect an in-person interview at the embassy.
• The CEO’s credibility: the most common avoidable embarrassment is announcing who is going before the visa is confirmed. Confirm first, announce second.

Note: U.S. payroll and UK national insurance under the UK-U.S. social security agreement are questions for the company’s tax adviser.

“Can’t we just use H-1B, or hire Americans?”

“We’ll use H-1B.”

For a new employee subject to the annual H-1B cap, the registration and selection process can make timing uncertain. Cap-exempt cases and some workers previously counted against the cap require a different analysis. Assess the particular employee and employer before relying on H-1B for the launch.

“We’ll hire locally instead.”

This often proves right for most roles. Local recruitment can help the U.S. operation support a qualifying managerial or executive position. However, the extension depends on the actual business, the employee’s duties and the supporting evidence. A function manager must primarily manage an essential function rather than personally perform its day-to-day work.

“It’s too early to call a lawyer; we haven’t incorporated yet.”

The structure chosen now (subsidiary or branch, who owns what) decides L-1 and E-2 eligibility. It is easier to set up right than to restructure.

“Our founder should go first.”

In some cases. If the founder is not a UK national and has not been employed by the UK company for a continuous year, the options narrow to L-1 timing or O-1A.

A founder’s nationality, employment history, ownership position and proposed U.S. work all need assessment. L-1 and O-1A may be relevant, but they are not an exhaustive list. An E-2 analysis may also be possible under another qualifying treaty nationality. and ownership structure.

Before the consultation, gather the ownership chart, each proposed transferee’s nationality and overseas employment history, their intended U.S. duties, the launch timetable and the first-year staffing budget. Include family requirements and any planned funding round. These details help identify which assumptions need to change before commitments are made.

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.