Is There a U.S. Work Visa for Your Employee? That Depends on Five Things Most Companies Have Not Checked

5 Things That Determine Your Employee’s U.S. Visa Options

13 Jul Is There a U.S. Work Visa for Your Employee? That Depends on Five Things Most Companies Have Not Checked

Posted at 08:00h in Business Visas, Corporate Employer by

A name has been put forward to fill a U.S. role for your company. There has been board approval of the employee and HR has been busy assembling content about the different types of visas.

As CEO, you’re under pressure from all sides: the employee, the family members, HR.

The family members are understandably anxious to be given an approximate timeline so they can begin making plans for the move.

Meanwhile, it has become increasingly obvious that obtaining a visa is quite the complex process, involving a myriad of potential legal pitfalls.

You are obviously going to need help, but before spending money on legal consultations, you would like a quick way to tell whether a visa route is even possible in your specific situation.

At a glance: Before a company can know whether an employee qualifies for a U.S. work visa, five facts must be checked: their nationality, the actual U.S. role, the relationship between the overseas and U.S. entities, the employee’s employment history, and the realistic start date based on the visa route.

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

“Navigating the complexities of the U.S. visa and immigration system is far from simple. But If you can give me those five facts, I will be able to tell you the visa route to pursue. In fact, that is precisely what a first conversation is meant to accomplish.”

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

The 5 facts that count. Until these have been checked, no visa category can be useful:

Fact 1: The employee’s nationality (and any dual nationality)

Remember, nationality must be the very first fact to establish. For UK and Irish companies, nationality either opens or closes the E-1 and E-2 visa routes, shaping the consular processing experience for everything else.

  • The E-1 Treaty Trader visa and E-2 Treaty Investor visa are available only to nationals of treaty countries. The UK and Ireland both qualify, but under different instruments, with Ireland’s based on the 1992 Protocol to the 1950 Ireland-US Treaty of Friendship, Commerce and Navigation, while the UK’s basis is the 1815 UK-U.S. Convention of Commerce and Navigation.
  • For E-visa purposes, U.S. consular practice requires that the UK national hold UK nationality at birth or by naturalisation and British nationals must be residing on the British Isles when they apply for an E visa.
  • An Irish national who is also a UK national has a strategic choice of which treaty under which to apply. Where company ownership is concentrated in Irish hands, the 1992 Bilateral Investment Treaty often produces a cleaner route.
  • L-1 and H-1B do not depend on the employee’s nationality. The L-1 turns on the corporate relationship and the employee’s history with the group; the H-1B turns on the role and the cap. Nationality may still affect whether an E visa route is available and where the consular process is handled, such as through the London E Visa Unit, the U.S. Embassy in Dublin, or another U.S. consular post.
  • If the employee holds Irish or British nationality, the E-1 and E-2 treaty routes may be open; for any other nationality, the considerations are L-1, H-1B, and O-1.

Fact 2: The actual job they will do in the U.S.

Remember, it’s important to separate the job title used at the company from the duties U.S. immigration law cares about. Do not assume that, because a person is senior, they will qualify for L-1A or H-1B.

  • Each U.S. work visa category is defined by what the person will do, not by their seniority or pay grade. Persons with the same title may still not qualify under the same category, depending on the actual duties of the U.S. role.
  • The L-1A (Executive or Managerial) role must involve genuine executive function, or the management of professionals or of an essential function. “Senior” is not the same as “executive” or “managerial” in U.S. immigration terms.
  • The L-1B (Specialised Knowledge) role requires special or advanced knowledge of the company’s products, services, processes, equipment, and procedures that are genuinely specialised within the industry. (The standard is even higher than it sounds.)
  • The H-1B (Specialty Occupation) role must require theoretical and practical application of a body of highly specialised knowledge attained through a U.S. bachelor’s degree or its equivalent, in a specialty directly related to the duties.
  • The O-1 (Extraordinary Ability) is the category for individuals with sustained acclaim in their field. This is based on the person’s achievements so a CEO should not assume this category applies as the standard is very high.

Make note of what the employee will actually be doing in the U.S.: the day-to-day duties, the reporting line, and the qualifications required for the role.

Fact 3: The corporate relationship between the UK or Irish entity and the U.S. entity

Remember, for the two visa routes UK and Irish companies most often consider, the L-1 and the E-2, the answer turns on the corporate structure, not on the employee.

  • The L-1 rule: The L-1 Intracompany Transferee visa requires a qualifying relationship between the UK or Irish employer and the U.S. employer. The U.S. entity must be the parent, subsidiary, affiliate or branch of the UK or Irish entity, with common ownership and common control. “We have a U.S. office” is not the same as “We have a qualifying relationship.”
  • Concrete examples: A UK founder who personally owns 100% of both the UK and U.S. entities usually does have a qualifying relationship; a UK company whose U.S. affiliate is owned by a different group of shareholders may not. Common control is determined by a factual test, not by declaration.
  • For E-2, the U.S. enterprise must have treaty-country nationality. In practical terms, that usually means at least 50% ownership by nationals of the same treaty country. The employee also generally needs to share that treaty nationality with the enterprise. So, an Irish employee is not enough by itself. The ownership structure still has to support an Irish E-2 route.
  • For Irish founders and Irish-owned companies acquiring a U.S. business, the ownership test under the 1992 Ireland-U.S. Bilateral Investment Treaty is what determines E-2 eligibility.

Word to the wise: These questions need to be answered by CEOs at the very start of the process, not after the deal closes. Before you build a visa plan around L-1 or E-2, write down who owns each entity in the group, in what percentages, and of what nationality. The ownership chart is what determines the eligibility chart.

Fact 4: The employee’s full-time employment

Remember, the single most common reason L-1 applications fail is that CEOs assume “long-serving employee” is enough.

  • To qualify for an L-1 visa, the employee generally must have been employed abroad, full-time, by a qualifying organisation in the group for at least one continuous year within the three years immediately preceding the L-1 petition or admission.
  1. Continuous, full-time employment with a qualifying entity counts; contractor relationships generally do not. Employment by a sister entity that is not in a qualifying relationship does not count. Recent hires from outside the group do not qualify, no matter how senior.
  2. If the company acquired the employee through a recent acquisition, or if the employee transferred from one group entity to another, the one-year clock may not have started (or may have reset); this must be checked before committing to a visa route.
  • For H-1B, the employee must hold a U.S. bachelor’s degree or the equivalent, in a specific specialty directly related to the role. (Equivalence is a documented evaluation, not an assumption.)

Word to the wise: Pull the employee’s HR file before the consultation, noting the date of joining the group, of any transfer between group entities, and of any leave of absence. These three things and the employee’s highest qualification (including the educational institution) decide more than the route name.

Fact 5: The realistic U.S. start date, given visa-category timing in 2026

Remember, a U.S. start date is realistic only when the visa-category timeline can hit that date. Failure to set a start date before the route is confirmed is the single most common reason transfers “slip”.

  • L-1 petitions are filed with USCIS. Premium processing is available, which provides USCIS adjudication within 15 business days. After USCIS approval, the employee will still need a consular interview at the London E-Visa Unit, the Dublin consulate, or another consulate. The petition is only the first half of the process, not the whole of it.
  • For applicants outside the U.S., E-1 and E-2 visas are generally processed through the relevant U.S. consular post, such as the London E Visa Unit or the U.S. Embassy in Dublin. USCIS is not the next step in a standard consular E visa application. USCIS becomes relevant where the company is seeking E classification through a change or extension of status inside the United States.
  • H-1B visas are subject to an annual cap of 85,000 (65,000 regular plus 20,000 for holders of U.S. master’s degrees). Cap-subject petitions enter an annual registration window in March. If selected, that application can be filed for an employment start date of 1 October at the earliest. Take note: This annually-bounded process is the source of much miscommunication and misunderstanding.
  • The $100,000 H-1B payment requirement was introduced by Presidential Proclamation on 19 September 2025 for certain new H-1B petitions filed at or after 12:01 a.m. Eastern Time on 21 September 2025. As of 16 June 2026, the requirement is subject to active federal litigation, including conflicting district-court rulings and a temporary stay affecting enforcement. Employers should check the current position before relying on any H-1B cost estimate.

Word to the wise: The proclamation is subject to ongoing federal court challenges. Remember, the figure is a one-time supplemental payment and does not represent the total cost of an H-1B visa.

Always keep in mind: The right question is never “How fast can we get a visa?” It is this: “Given the route the facts point to, what is the earliest date we can credibly promise the U.S. client, the employee, and the family?”

That is the very question the consultation is designed to answer.

What to do next:

By researching those five facts, you’ve completed some highly meaningful work, far more than is the case with most companies endeavoring to send an employee to the U.S. The natural next step is a conversation to turn those facts into a visa route. Because you’re coming prepared with the facts, that route conversation can be short and specific, converting those facts to:

  • a route assessment
  • a realistic timeline
  • a clear cost picture.

 

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. Does my employee qualify for a U.S. work visa?

Not until the key facts have been checked. A company first needs to confirm the employee’s nationality, the U.S. role, the relationship between the overseas and U.S. entities, the employee’s employment history, and the realistic start date. Only then can a lawyer assess whether a route such as E-1, E-2, L-1, H-1B, or O-1 may be available.

2. What should a company check before asking which U.S. visa applies?

The company should check five things before discussing visa categories: the employee’s nationality and any dual nationality, the actual work they will do in the U.S., the ownership and control relationship between the overseas and U.S. entities, the employee’s full-time employment history with the group, and the date the business realistically needs them in the U.S.

3. Does nationality matter for a U.S. work visa?

Yes, but it depends on the visa category. Nationality is especially important for E-1 Treaty Trader and E-2 Treaty Investor visas because those routes are available only to nationals of treaty countries. The UK and Ireland both qualify, but the employee’s nationality and the company’s ownership structure still need to be checked carefully.

4. Can a UK or Irish company use the E-2 visa to send an employee to the U.S.?

Possibly, but an Irish or British employee is not enough by itself. For E-2, the U.S. enterprise must usually have the nationality of the treaty country, which generally means at least 50% ownership by nationals of that country. The employee also generally needs to share the same treaty nationality as the enterprise.

5. Can a company use the L-1 visa if it has a U.S. office?

Not automatically. The L-1 visa requires a qualifying relationship between the overseas employer and the U.S. employer, such as a parent, subsidiary, affiliate, or branch relationship. Simply having a U.S. office, agent, client, or commercial presence does not necessarily create a qualifying L-1 relationship.

6. Is a senior job title enough for an L-1A visa?

No. A senior title does not decide the visa route. For L-1A, the U.S. role must involve genuine executive or managerial duties under U.S. immigration rules. A company should look closely at what the employee will actually do in the U.S., who they will manage, what authority they will have, and how the role fits into the business.

7. What is the L-1 one-year employment requirement?

For L-1, the employee generally must have worked abroad, full-time, for a qualifying entity in the group for at least one continuous year within the three years before the L-1 petition or admission. Contractor work, employment with an unrelated entity, or recent employment outside the qualifying group may not count.

8. Can a recent acquisition affect L-1 eligibility?

Yes. If the employee joined through a recent acquisition, or moved between entities in the group, the company needs to check whether the required qualifying relationship existed during the relevant period. A long-serving employee may still fail the L-1 test if the employment history does not meet the specific rule.

9. Is H-1B a reliable route for a quick U.S. transfer?

Usually not for a fast transfer. Most H-1B petitions are subject to the annual cap and registration process. If the petition is cap-subject, the timing is tied to the annual registration window and the earliest employment start date is usually 1 October. Employers should also check current government-fee requirements before relying on an H-1B cost estimate.

10. How soon can an employee start work in the U.S.?

The start date depends on the visa route. Some routes involve a USCIS petition before consular processing. Others are handled primarily through a U.S. consular post abroad. The right question is not simply how fast a visa can be obtained, but what start date can realistically be promised once the correct route has been identified.

11. Should the company speak to a lawyer before choosing the visa category?

Yes. The visa category should come after the facts, not before them. A focused consultation can help the company turn the employee’s nationality, job duties, corporate structure, employment history, and timing needs into a realistic route assessment, timeline, and cost picture.

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