Why “We’re Investing Real Money” is Not the Same as “We Have a Viable U.S. Visa Strategy”

On a near-uninterrupted growth path over the past decade, your company is ready to expand into the U.S.

In preparation, leadership’s focus has been on negotiations and on committing the capital needed for the venture. You have now been tasked with researching and executing the steps needed to transfer an employee to the U.S. to run the new operation.

A general timeline has been outlined, the individual chosen, and discussion of family needs has taken place. All that remains is the administrative piece of the puzzle.

The expectation was that, with the funding in place, the next steps would be easy to accomplish. 

Reality is, as you’re discovering, finding the appropriate visa path, not to mention within the expected timeline, is going to be far more complex than anyone had anticipated. 

At a glance: Committing capital to a U.S. business does not, by itself, secure the ability to place a director or key executive on the ground. A viable U.S. visa strategy depends on the ownership structure, treaty nationality, proposed role and timing, as well as the amount and nature of the investment.

UK nationals may qualify for E-2 treatment under the 1815 Convention of Commerce and Navigation. Irish nationals may qualify under the 1950 Treaty of Friendship, Commerce and Navigation, as supplemented by the Protocol signed on 24 June 1992. The route should be tested against the actual structure before the plan is fixed.

Why “real money” and “viable visa strategy” are different things

 The “villain” in this story is a mindset, not a person. The assumption that, once capital has been committed, the immigration piece is merely administrative; treating the visa piece as ‘paperwork’ is what turns a manageable timeline into a scramble.

The reality: visa eligibility turns on four factors:

1. structure
2. nationality
3. role
4. timeline

The amount invested matters, but it does not answer the visa question by itself. The ownership structure, treaty nationality, control, proposed role, nature of the enterprise and timing must also support the chosen route.

What determines whether the visa works

The four things a specialist tests include:

1. Ownership structure

For E-2, the U.S. enterprise must hold treaty-country nationality, generally at least 50% ownership by nationals of the treaty country. A minority co-investor is not automatically a problem. The question is whether the post-completion ownership structure still leaves at least 50% of the enterprise owned by nationals of the treaty country relied on for the application.

2. Treaty nationality

The applicant’s passport is not the only nationality question. The nationality relied on must be consistent with the nationality of the U.S. enterprise. An E-2 employee must generally share the treaty nationality of the qualifying owners of the enterprise.

This becomes particularly important where there are dual nationals, multinational holding companies, family-owned groups or private equity structures with investors from several countries.

A dual UK-Irish national may have more than one possible treaty basis, but the choice cannot be made in isolation. The nationality used for the application must align with the treaty nationality of the U.S. enterprise, and an application relying on UK nationality must also satisfy the 1815 Convention’s residence and domicile requirement.

3. Role design

Is the principal coming in to “develop and direct” the enterprise, or will an employee be entering in an executive, supervisory or essential-skills capacity? The answer shapes the whole filing.

The role should therefore be assessed from the job duties, decision-making authority, reporting lines and business plan, not simply from the person’s importance to the transaction.

4. Timeline

The deal timeline is fixed; the immigration timeline is knowable once the route is set. Perceived unpredictability is almost always a symptom of insufficient upfront advice. 

The UK / Ireland distinction most online content ignores

UK nationals

Nationals of the United Kingdom apply for the E-2 visa under the 1815 Convention of Commerce and Navigation between the United States and Great Britain.  The U.S. view is that the 1815 Convention applies to nationals of the United Kingdom, not Commonwealth nationality generally.

The category depends on facts about the company and the person, not on how important the move is to the business.

Irish nationals

Irish nationals apply under the 1950 Treaty of Friendship, Commerce and Navigation between Ireland and the United States (as supplemented by the Protocol signed 24 June 1992, entered into force 18 November 1992).

Dual UK- Irish nationals

A dual UK-Irish national may have more than one possible treaty basis, but the choice cannot be made in isolation. The nationality used for the application must fit the nationality of the U.S. enterprise. If UK nationality is relied on, the UK residence and domicile requirement must also be considered. The visa is normally issued in the passport of the treaty country used for E-2 eligibility.

Temporary or permanent? Framing the decision

In the process of strategically directing a deal, the choice concerns speed versus permanence.

E-2 may not be the only route

An acquisition or U.S. expansion should not automatically be treated as an E-2 matter. Depending on the corporate relationship and the individual’s employment history, L-1A may also need to be assessed.

L-1A can be relevant where the overseas and U.S. businesses have a qualifying parent, subsidiary, affiliate or branch relationship, and the individual has worked abroad for a qualifying organisation for at least one continuous year during the relevant three-year period. The U.S. role must be executive or managerial. Additional requirements apply where the U.S. operation is a new office.

The comparison is not simply “Which visa is faster?” It is “Which legal structure and role can the evidence support?” E-2 may fit a treaty-owned investment enterprise. L-1A may fit a qualifying intra-company transfer. In some matters, neither route will fit without changes to the plan.

 The Gold Card question every investor now asks

The federal government is accepting Gold Card applications through Form I-140G. The published process requires a non-refundable $15,000 DHS processing fee for each applicant and, after vetting, a $1 million gift for an individual applicant. A corporate sponsor may apply for an employee using a $2 million gift.

The Gold Card is not a simple purchase of residence and should not be treated as an automatic alternative to E-2. The programme operates through existing EB-1 and EB-2 immigrant classifications. A successful applicant must still be eligible for lawful permanent residence, admissible to the United States and within an available visa number. The relevant classification is determined by the government.

It is also a new programme created by executive action. Its procedures, legal position and practical operation should be checked against current government guidance before an investor relies on it in a deal or relocation timetable. 

What good advice looks like, and what to do next

So many “ifs,” so many unknowns… fear of choosing the wrong visa, committing capital before the costs are delineated, the visa secure, a realistic timeline defined…will everything you’ve done need to be restructured?

A proper early assessment should deliver a clear, written view of:

• which visa fits the specific structure
• realistic timelines
• honestly stated probabilities
• correctly structuring the investment around the requirements
• transforming an undefined “visa situation” to a clear plan investor can take back to the board 

The purpose is to replace an undefined “visa situation” with a reasoned plan that leadership can use when setting the cap table, assigning responsibilities and agreeing the timetable.

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.