US Visa Planning for Dublin Entrepreneurs

26 Oct U.S. Visa Planning for Dublin Entrepreneurs Entering the American Market

Posted at 08:00h in Business Visas, Ireland by Janice Flynn

After two years of research and discussion, your company’s plan for entering the U.S. marketplace has finally been signed off on, complete with decisions concerning the name and format of the new entity, a target date for the launch, and the selection of an individual to assume the title Managing Director, U.S.

Up until now, everyone assumed that, with the help of the corporate lawyer, the accountant, and Human Resources, the details would be ironed out.

But now, an uneasy feeling is creeping in that there might be unexpected issues arising in qualifying and relocating the candidate, along with family members, according to schedule.

Can Irish entrepreneurs get a U.S. business visa?

Irish nationals may qualify for E-1 treaty trader or E-2 treaty investor visas, depending on the business structure and activity. E-1 is for substantial trade principally between Ireland and the United States, while E-2 is for qualifying investment in a U.S. enterprise. For E visa applicants applying through the U.S. Embassy in Dublin, no USCIS petition approval is required before the consular application.

“Having devoted the last two decades to corporate immigration law, there's one thing I try to get across to Irish entrepreneurs seeking to enter the U.S. market: If there are a name and a date on your U.S. plan, test the ownership and visa position before the rest of the plan is built around it. As Managing Partner of Flynn Hodkinson, my mission is to help avoid delays and mistakes as Dublin entrepreneurs enter the American market..”

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

Why Dublin is not London

Point	The accurate position
Ireland has E-1 as well as E-2	Ireland holds both classifications. E-1 treaty trader entered into force on 14 September 1950; E-2 treaty investor entered into force on 18 November 1992. Some published material wrongly implies Irish nationals have E-2 only.
The E-2 basis is a Protocol, not a new treaty	Irish E-2 eligibility rests on the 1950 Treaty of Friendship, Commerce and Navigation, as supplemented by the Protocol signed at Washington on 24 June 1992, which entered into force on 18 November 1992. It is not a “1992 Bilateral Investment Treaty” — no such instrument exists.
The UK basis is a different instrument entirely	UK nationals qualify under the Convention of Commerce and Navigation, in force 3 July 1815 –an instrument 135 years older, with materially different territorial scope.
The dual national trap	The 1815 Convention applies only to British territory in Europe and to “inhabitants” of that territory, meaning a person and permanently domiciled there. The U.S. Embassy in Dublin states directly that British passport holders resident in Ireland may not be eligible under it. For an Irish-British dual national resident and domiciled in Ireland, the Irish treaty may provide the more straightforward treaty basis because the UK treaty carries a separate residence and domicile restriction. The nationality used for the E application must also be consistent with the qualifying nationality of the treaty enterprise.
Commonwealth nationality does not help	Commonwealth citizens do not qualify under the UK treaty regardless of seniority or length of service. This catches senior hires more often than it should.

The visas on the table

Visa	What it is	Fits when	Watch for
E-2 treaty investor	A non-immigrant visa for an Irish national investing a substantial amount in a U.S. enterprise they will develop and direct	You are funding a new or acquired U.S. business and the investor-director is the person going	Nationality of the U.S. enterprise. For E-2 purposes, the country where a company is incorporated does not determine its treaty nationality. Ownership is traced through the corporate structure to the ultimate owners. Generally, at least 50% of the U.S. enterprise must ultimately be owned by Irish nationals for the enterprise to qualify under the Irish treaty. A U.S. or third-country holding company can create an E-2 problem if, after the ownership structure is traced, at least 50% of the U.S. enterprise is not ultimately owned by Irish nationals.
E-1 treaty trader	A non-immigrant visa for an Irish national carrying on substantial trade principally between Ireland and the U.S.	You already have real, continuing trade volume rather than capital deployed	More than 50% of the enterprise’s international trade must be between the United States and Ireland. Often overlooked because so much published content covers only E-2
L-1A intracompany transferee	A petition-based route for an executive or manager moving from the Irish entity to a related U.S. entity	The person has been employed by the Irish company and there is a qualifying corporate relationship	The employee generally must have worked abroad full-time for a qualifying organization for at least one continuous year within the three years preceding the L-1 filing. New office L-1A is granted for one year initially
L-1B specialised knowledge	The same structure as L-1A but for specialised knowledge rather than executive or managerial capacity	The person has qualifying specialized knowledge of the company’s products, services, processes, procedures or other interests. The category is not limited to engineers or technical employees.	The specialized-knowledge requirement is fact-specific and must be supported with detailed evidence.

Note: For applicants applying for an E visa through the U.S. Embassy in Dublin, there is no USCIS petition approval required before the consular application. A person already in the United States may, in appropriate circumstances, request a change to or extension of E status through USCIS. Individual L-1 cases generally require a USCIS petition before the visa application. Employers with an approved blanket L petition use a different procedure.

The three questions that help decide visa:

Question 1. “Who ultimately owns the U.S. enterprise, and what nationality do those owners hold?”

E-2 requires the U.S. enterprise to hold the nationality of the treaty country, which generally means at least 50% ownership by Irish nationals.

Three structures that can create an E-2 eligibility problem:

a corporate structure where ultimate Irish ownership falls below 50%;
a funding round that dilutes Irish treaty-national ownership below the required level;
an Irish-incorporated company whose ultimate individual owners do not hold sufficient Irish nationality for E-2 purposes.

**Question 2. “*What will the person do in the U.S.?”***

An investor-director coming to develop and direct a qualifying treaty enterprise may point toward E-2. An executive or manager transferring within a qualifying corporate group may point toward L-1A. An employee with qualifying specialized knowledge may point toward L-1B. The same person can qualify under one and not another, depending purely on how the U.S. role is designed which means the role should be designed before it is described in a filing, not after.

**Question 3. “*Is this temporary access or permanent residence?”***

E-2 does not have a fixed maximum number of renewals or extensions while the applicant and enterprise continue to meet the requirements. It remains a nonimmigrant classification and does not itself create a path to permanent residence.

Founders frequently assume otherwise and build personal plans (schooling, property, tax residence) on that assumption. If permanent residence is genuinely the goal, that is a different decision made at a different time, and it should be made deliberately rather than discovered in year six.

Mistakes to avoid:

Forming the U.S. entity before testing whether its ownership supports the visa route
Assuming a UK passport solves the problem for a Dublin-resident dual national
Assuming that transferring money into a U.S. business account, by itself, satisfies the E-2 investment requirement. The funds must be committed to the enterprise and genuinely at risk in the commercial sense.
Planning the family move on the assumption that E-2 leads to permanent residence.

What the Dublin E visa unit expects

Note: E visa applications processed through the U.S. Embassy in Dublin follow the Embassy’s E-visa submission procedures. For cases requiring advance document review, applicants should follow the E Visa Unit’s current document-submission instructions before scheduling or attending the interview.

The sequence:

Prepare the application against the Embassy’s own checklist and page limits.
Complete Form DS-160 for each visa applicant.
Form DS-156E is also required for E-1 principal applicants and for E-1 or E-2 employees applying in an executive, managerial, supervisory or essential-skills capacity. A principal E-2 investor generally completes Form DS-160 rather than Form DS-156E.
Pay the visa fee through the Embassy’s appointment service.
Submit the package to the E Visa Unit. The Embassy recommends the email option and asks applicants not to send passports unless requested.
Receive automatic confirmation of receipt.
Wait for review to complete. Only then does the Unit invite you to schedule an interview.
Attend the interview with passport, DS-160 confirmation, DS-156E, photograph and CV.
Allow additional processing time after approval before the passport is returned.

The details that show you have done this before:

Detail	What it means for the applicant
Page limits are enforced.	A first-time company application is capped at 80 pages (40 double-sided). Oversized applications are not accepted. Forms G-28, civil documents, the passport bio page and tabs do not count towards the limit.
The Unit asks you to think lean.	The Embassy states directly that lengthy applications take longer to read and contribute to longer processing times, and asks applicants not to submit brochures, hotel receipts, or bank statements that do not identify which entries are relevant.
Plain language beats legal citation.	The Embassy asks applicants not to include lengthy citations from the Foreign Affairs Manual or the Code of Federal Regulations, and warns that the Unit may not be familiar with your industry. Explaining a wind services business in clear terms is worth more than a legal memorandum.
Electronic submission only, for some categories	For renewals, employees of vetted companies and dependents, electronic submission is the only acceptable method. Attachments are capped at 3MB; zipped and linked files cannot be opened.
The 30-day window	Where further documents are requested after interview, there is a maximum of 30 days to provide them. Cases are not held longer.
Residency evidence	The Embassy will ask for evidence that you are a resident of Ireland, domiciled in the State, or a landed immigrant from a qualifying treaty country.
Do not travel on assumption.	The Unit advises against non-refundable travel plans before the passport is returned, and no guarantee of issuance can be made before interview.

The family question

Qualifying E-2 spouses are employment authorized incident to status.

A separate Employment Authorization Document is not required for the underlying authority to work, although an eligible spouse may still apply for an EAD if they want a separate physical document.

Since 12 November 2021, spouses of E-1, E-2, E-3, and L-2 holders are considered employment authorized incident to status. No separate application is required. Since 30 January 2022, qualifying E-2 spouses may receive an I-94 showing the class of admission E-2S. An unexpired I-94 showing E-2S can serve as evidence of employment authorization for Form I-9 purposes.

An Employment Authorisation Document is optional.

A spouse may still file Form I-765 for a physical card, but it is not required. Some U.S. employers are more comfortable with a card, which is a practical consideration rather than a legal one.

Unmarried children under 21 may accompany the principal applicant.

They may attend school but are not employment authorized incident to E status. Their derivative eligibility generally ends when they turn 21.

Fiancées and common-law partners do not qualify.

Fiancés and unmarried partners do not qualify as derivative E spouses simply because they live together. A common-law marriage may qualify if it is legally recognized where it was created and is fully equivalent to a legal marriage for U.S. immigration purposes.

Qualifying E spouses are now employment authorized incident to status. They may still apply for an Employment Authorization Document if they want a separate physical document, but an EAD is not required for the underlying authorization to work.

What usually goes wrong:

Objection: “We will sort the visa once the entity is set up.”

Honest answer: The entity structure is one of the things that determines whether the route works. Setting it up first can foreclose the option you were relying on, and unwinding it is expensive. The ownership question is answerable in an afternoon — before anything is filed.

Objection: “We have the money, so we qualify.”

Honest answer: There is no fixed statutory minimum investment for E-2. The investment must be substantial in relation to the total cost of purchasing or establishing the enterprise, and the investor’s capital must be committed and placed at risk.

Objection: “Our Managing Director has run the business for years, so L-1 is straightforward.”

Honest answer: L-1 requires one continuous year of qualifying employment with the related entity within the three years immediately preceding the petition, plus a qualifying corporate relationship. Long tenure in the wrong entity, or a gap in the wrong place, changes the answer.

Objection: “We will use a UK passport. It is simpler.”

Honest answer: For a dual national resident in Dublin, it is usually not available. The 1815 Convention reaches inhabitants of British territory in Europe, and the Embassy states that British passport holders resident in Ireland may not be eligible under it.

Objection: “Can you tell us the odds?”

Honest answer: A straight answer is possible on structure and eligibility, and that is the answer that matters. What no advisor can possibly give is a guaranteed outcome.

Settle the details before you commit:

Confirm the nationality of the ownership, at the level of individuals rather than entities.
Decide who is going and what they will do there, in enough detail to describe the role.
Test the route against both of those before forming the U.S. entity or signing a lease.
Decide whether the goal is temporary access or permanent residence (and say so out loud!)
Establish the family position early on, particularly the spouse’s work plans and the children’s ages.
Build the application to the Embassy’s page limits, doing that from the start rather than cutting it down later.
Leave the interview date out of the commercial timeline until the E Visa Unit has completed its review.

If there are a name and a date on your U.S. plan, the ownership question is worth answering before the rest of the plan is built around it.

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. Can Irish citizens qualify for an E-2 visa?

Yes. Irish citizens may qualify for the E-2 treaty investor visa if they invest a substantial amount of capital in a qualifying U.S. enterprise and meet the other E-2 requirements. The U.S. enterprise must also have qualifying treaty-country nationality, which generally means at least 50% ultimate ownership by Irish nationals when applying under the Irish treaty.

2. Does Ireland also qualify for the E-1 treaty trader visa?

Yes. Ireland qualifies for both E-1 treaty trader and E-2 treaty investor visas. E-1 may be relevant where an Irish business already conducts substantial trade between Ireland and the United States, with more than 50% of its international trade taking place between the two countries.

3. Is there a minimum investment amount for an E-2 visa?

No. There is no fixed statutory minimum investment for E-2. The investment must be substantial in relation to the cost of purchasing or establishing the business. The funds must also be committed to the enterprise and genuinely at risk in the commercial sense.

4. Does an Irish company automatically qualify for E-2 because it is incorporated in Ireland?

No. Where the company is incorporated does not, by itself, determine E-2 nationality. Ownership is traced through the corporate structure to the ultimate owners. For a U.S. enterprise relying on Irish treaty nationality, at least 50% must generally be ultimately owned by Irish nationals.

5. Should an Irish company form its U.S. entity before checking the visa position?

Not necessarily. Ownership and corporate structure can affect whether an E-2 or L-1 route works. It is often better to test the proposed structure, the nationality of the ultimate owners, the role of the person moving and the intended visa route before the U.S. structure is finalized.

6. Do E-1 and E-2 applicants need USCIS approval before applying in Dublin?

Applicants applying for an E visa through the U.S. Embassy in Dublin do not generally need USCIS petition approval before making the consular visa application. However, a person already in the United States may, in appropriate circumstances, request a change to or extension of E status through USCIS.

7. Does every E-2 applicant need to complete Form DS-156E?

No. A principal E-2 treaty investor generally completes Form DS-160 rather than Form DS-156E. Form DS-156E is also used for E-1 principal applicants and for certain E-1 or E-2 employees applying in executive, managerial, supervisory or essential-skills roles. The required forms depend on the applicant’s E classification and role.

8. Can an Irish-British dual national use either passport for an E visa?

Not automatically. The treaty basis used for the application must fit the individual’s circumstances and the qualifying nationality of the enterprise. The UK treaty also has additional residence and domicile restrictions. For an Irish-British dual national resident and domiciled in Ireland, the Irish treaty may therefore provide the more straightforward basis, but the ownership structure and nationality of the enterprise still need to be considered.

9. What is the difference between E-2 and L-1 for an Irish company expanding to the U.S.?

E-2 is based primarily on treaty nationality, qualifying investment and the ownership of the U.S. enterprise. L-1 is based on a qualifying relationship between the overseas and U.S. entities and the employee’s prior qualifying employment abroad. L-1A is for executives and managers, while L-1B is for employees with qualifying specialized knowledge.

10. Can the spouse of an E-2 visa holder work in the United States?

A qualifying E-2 spouse is employment authorized incident to status. A separate Employment Authorization Document is not required for the underlying authority to work, although the spouse may still apply for an EAD. An E-2 spouse may generally work for an employer of their choice and is not limited to working for the treaty enterprise.

11. Can unmarried partners accompany an E-2 visa holder as dependents?

An unmarried partner does not qualify as an E-2 derivative spouse simply because the couple lives together. A legally recognized common-law marriage may qualify if it is valid where it was created and is treated as equivalent to a legal marriage for U.S. immigration purposes.

12. Do children of an E-2 visa holder qualify as dependents?

Unmarried children under 21 may generally accompany the principal E visa holder in derivative status. They may attend school in the United States, but they are not employment authorized incident to E status. Their derivative eligibility generally ends when they turn 21.

13. Does an E-2 visa lead to a green card?

No. E-2 is a nonimmigrant classification and does not itself create a path to permanent residence. There is no fixed maximum number of E-2 renewals or extensions while the applicant and enterprise continue to qualify, but an entrepreneur whose long-term goal is permanent residence should consider that objective separately rather than assuming E-2 will automatically lead to a green card.