What Irish Employers Need to Know Before Sending an Employee to the U.S.

As co-founder and owner-operator of your Irish company, you have been the driving force behind the initiative to create a U.S. division.

Partly due to prolonged uncertainty about which executive would be ready and able to commit to the transfer, decisions concerning that one crucial aspect of the deal were deferred, even as other pieces of the plan were being thoroughly researched and implemented.

Now that a final selection has been made, the question now is can you actually get them there within the timeline?

Are recent changes in the U.S. policy environment going to present more of a challenge than anticipated?

At a glance: Before sending an employee to the United States, an Irish employer needs to confirm the employee’s nationality, the relationship between the Irish and U.S. entities, the employee’s qualifying employment history, the role they will actually perform in the United States, and whether the visa route can meet the business timeline. These facts determine whether routes such as E-2, L-1, H-1B, or O-1 may be available. Getting one of them wrong can delay the move, increase cost, or prevent the employee from entering the U.S. under the route the business assumed would work.

The Three Situations Where Irish Employers Send People to the U.S.

1. You’re establishing or launching a U.S. operation

Your Irish company has decided to enter the U.S. market and needs a founding operator on the ground. This may be the director or owner moving themselves or a trusted senior employee taking on the U.S. build-out. Without someone physically present in the United States, the commercial plan cannot move.

(This is the most common situation for Irish SMEs in clean energy, food science, packaging, and tech entering the U.S. for the first time.)

Primary visa routes:

The E-2 Treaty Investor visa if the person going is an Irish national investing in and directing the U.S. enterprise, or if they are a qualifying E-2 employee (executive, supervisory, or essentially skilled) of an Irish-owned U.S. business.

The L-1A Intracompany Transferee (New Office) visa if the Irish parent and U.S. entity have a qualifying corporate relationship and the person is coming in a managerial or executive capacity. Note that the new-office L-1A is initially granted for one year only, and extension requires evidence the U.S. office is operating as originally proposed.

Key Ireland-specific point:

Ireland has its own bilateral investment treaty with the United States, concluded in 1992. Irish nationals apply for the E-2 under the Irish treaty, not the UK’s 1815 Convention of Commerce and Navigation, which is restricted to UK nationals. This distinction matters if your employee holds dual Irish-UK nationality or no Irish nationality at all.

2. You’re deploying a specialist to a U.S. project, client, or subsidiary

Your Irish company already has a U.S. presence (a subsidiary, a branch, an ongoing client) and you need to deploy a specific person for a defined assignment. A technical lead to commission a U.S. data centre. A project manager to oversee a U.S. client build-out. A pharma regulatory specialist to manage a U.S. submission. The person is going for the work, not to launch the business.

Primary visa routes:

The L-1A for a manager or executive, or the L-1B for an employee with specialised knowledge of the Irish company’s products, services, research, equipment, or processes. Both require a qualifying relationship between the Irish and U.S. entities and at least one continuous year of employment with the Irish qualifying organisation in the three years before the petition is filed.

The H-1B Specialty Occupation visa may apply if the role requires at least a bachelor’s degree in a specific field, but H-1B is cap-subject and now carries a $100,000 supplemental fee for most new petitions filed on behalf of beneficiaries outside the U.S.

The O-1 Extraordinary Ability visa applies in narrow cases where the employee has documented distinction in their field.

Key Ireland-specific point:

L-1B ‘specialised knowledge’ is one of the most scrutinised categories in U.S. immigration. The knowledge must be genuinely specific to your company’s products, processes, or methodologies, not generic industry expertise.

For Irish clean energy, pharmaceutical, and engineering firms, this is usually demonstrable but requires careful documentation. Generic job descriptions do not survive adjudication.

3. You’re hiring or retaining a non-Irish employee who needs U.S. access

Your Irish company has an EU national, a UK national, or a third-country national on the team whose role requires U.S. travel or U.S. presence. This is common in Irish tech and recruitment. Nationality drives visa eligibility, so the person’s passport determines the route, not the company’s.

Primary visa routes:

The L-1 and H-1B do not require the employee to be an Irish national, they require qualifying employment history and a qualifying role. The E-2 does require treaty-country nationality.

For an E-2 employee application, the employee must usually share the treaty nationality of the qualifying E-2 enterprise. This means a UK, Dutch, German, or Spanish employee cannot simply rely on their own passport if the U.S. enterprise is treated as Irish-owned for E-2 purposes. The nationality of the employee, the ownership of the U.S. enterprise, and the treaty being used all need to line up.

Key Ireland-specific point:

Dual nationality creates a strategic choice. A dual Irish-UK national may have a strategic choice, but it is not simply a matter of picking the more convenient passport. The lawyer must consider the treaty nationality of the U.S. enterprise, the person’s residence and domicile facts for UK treaty purposes, the ownership structure, and the consular venue.

The Five Structural Questions That Determine the Visa Route

1. What is the nationality of the employee going to the U.S.?

Nationality is the first fact that opens or closes visa routes. The E-2 Treaty Investor visa requires the applicant to be a national of a country that holds a qualifying treaty of commerce or bilateral investment treaty with the United States. Both Ireland and the United Kingdom qualify, but under separate instruments: Ireland’s is a 1992 bilateral investment treaty; the UK’s is the 1815 Convention of Commerce and Navigation, limited to UK nationals ‘resident actually and permanently’ in British territory in Europe. Commonwealth nationality does not qualify under the UK treaty. For a non-Irish, non-UK national on your team, you need to check their own nationality against the U.S. Department of State’s treaty country list.

If the employee is Irish, the E-2 is a potential route. If the employee is not from a treaty country, the E-2 is closed and the decision turns to the L-1 and H-1B routes, which do not depend on nationality. This single fact (whose passport the person holds) sometimes reshapes the entire plan.

2. What is the corporate relationship between your Irish company and the U.S. entity?

If you already have a U.S. subsidiary, branch, or affiliate, the relationship between the Irish and U.S. entities is the second fact a lawyer will assess.

For an L-1 Intracompany Transferee petition, the Irish and U.S. companies must have a qualifying relationship: parent, branch, subsidiary, or affiliate, with ownership and control established through corporate documents (typically the share register, articles of association, organisational chart, and any shareholders’ agreement).

For an E-2 where the visa is being used by an employee rather than the principal investor, the U.S. enterprise must itself have treaty-country nationality, generally meaning at least 50% ownership by nationals of the treaty country.

If you do not yet have a U.S. entity, that is not disqualifying, the E-2 and the L-1A New Office route both allow a founding move. But the sequencing matters. The U.S. entity you set up, how you capitalise it, and who owns it all affect which routes remain open. These decisions should be made together with the immigration analysis, not after.

3. What will the person actually do in the U.S., and for how long?

U.S. immigration law classifies visas by the activities the person will perform, not by their job title. ‘Managing Director’ on a business card is not a visa category. The petition has to describe the work: directing the enterprise, supervising professional staff, applying specialised knowledge of the Irish company’s proprietary processes, performing a role that requires a specific degree. Each of these maps to a different visa category with different evidentiary standards.

Duration matters as well. A six-week commissioning visit, a six-month deployment, a two-year secondment, and a permanent relocation involve different visa strategies, different processing timelines, and different long-term consequences, including U.S. tax exposure, which sits alongside immigration and should be planned at the same time, not after.

A short trip is not automatically a no-visa trip: the Visa Waiver Programme on an ESTA covers business meetings and negotiations, not productive work for a U.S. entity or client, and a commissioning visit can fall on either side of that line depending on what the person will actually do on the ground.

Tell the lawyer the truth about what the person will do and how long they will do it. Ambiguity on either point is the single most common cause of delayed or denied petitions.

4. What is the employee’s qualifying employment history?

For L-1 petitions, the employee must have been employed by the Irish qualifying organisation (or a qualifying affiliate, branch, or subsidiary abroad) for at least one continuous year within the three years immediately preceding the filing of the initial L-1 petition. That year must have been in a managerial, executive, or specialised knowledge capacity. Brief trips to the U.S. for business or pleasure do not interrupt that year, but time spent working in the U.S. for the same employer is handled specifically and does not count toward the year abroad.

For H-1B, the role must qualify as a specialty occupation, meaning it normally requires at least a U.S. bachelor’s degree, or equivalent, in a directly related specific specialty, and the employee must meet the education or equivalent qualification requirement.

For O-1 petitions, the employee must document extraordinary ability in their field through evidence such as nationally or internationally recognised awards, published work, media coverage, membership in associations that require outstanding achievement, or original contributions of major significance.

For E-2 employee visas (as distinct from the visa for the principal E-2 investor) the employee must share the treaty nationality of the principal investor or of the U.S. enterprise, and must be coming to the U.S. in an executive, supervisory, or essentially skilled capacity. An Irish national working for an Irish-owned U.S. enterprise can qualify; a non-Irish employee of that same enterprise generally cannot, even where the role is identical.

5. What is the required U.S. start date, and can the visa route deliver it?

Processing timelines vary materially by route. L-1 and H-1B petitions filed with USCIS can be accelerated through premium processing, which provides a 15-business-day adjudication window for an additional government fee. The fee changes periodically and should be confirmed at the time of filing.

E-2 applications for Irish nationals are processed at either the U.S. Embassy in Dublin or the U.S. Embassy in London’s specialist E-visa unit, with current wait times ranging from several weeks to several months depending on venue, caseload, and complexity. H-1B cap-subject petitions operate on a fixed annual calendar: electronic registration typically opens in March, lottery selection runs shortly after, petition filing runs April to June, and the earliest possible employment start date is 1 October of the same year.

If the business plan assumes the person will be in the U.S. by a specific date, the first thing a lawyer needs to tell you is whether that date is achievable under the routes available. If it is not, you need to know that before you commit the lease, the hire, or the announcement.

The Five Things Irish Employers Get Wrong (And What They Cost)

Mistake 1: Treating the visa as an administrative step that will sort itself out

The visa is not a permit you collect at the airport. It is a regulatory process with specific eligibility requirements, evidentiary standards, and government adjudication timelines. Petitions can be denied. Visas can be refused at interview. Evidence can be requested at a point when the commercial calendar has no slack left. In 2026, the regulatory environment is changing faster than most business owners realise. Budgeting the visa as an afterthought is the most expensive mistake in this whole list, because it compounds every other one.

Mistake 2: Committing to a U.S. start date before knowing the visa timeline

The Irish employer signs the U.S. lease, announces the hire, books the launch event, and then discovers the visa cannot land in time. Premium processing helps for L-1 and H-1B where available, but it does not help with consular scheduling at the Dublin or London embassies, and it cannot move the fixed H-1B cap calendar. The order of operations is: assess the route, confirm the timeline, then commit the commercial calendar. Not the other way around.

Mistake 3: Assuming Irish and UK nationals use the same E-2 route

They do not. Ireland’s E-2 eligibility flows from its 1992 bilateral investment treaty with the United States. The UK’s flows from the 1815 Convention of Commerce and Navigation. The instruments are different, the treaty-country nationality tests are applied separately, and for a dual Irish-UK national the choice of nationality is strategic. Getting this wrong can mean applying under the wrong instrument, filing evidence that addresses the wrong ownership test, or missing an available route entirely. It is not a detail. For an Irish company with any UK or dual-national employees or shareholders, it is often the first thing to work out.

Mistake 4: Underestimating the ownership structure analysis for the E-2

For an E-2 where the employee is not the principal investor, the U.S. enterprise must have treaty-country nationality, generally at least 50% ownership by nationals of the treaty country (Ireland, in this case). That test traces through the corporate structure. For Irish companies with private equity investors, venture capital participation, holding-company structures, or group arrangements, the analysis can be complex. A lawyer cannot confirm E-2 eligibility without a clear picture of who owns what. Arriving at the first consultation with the share register, articles of association, and shareholders’ agreement saves weeks.

Mistake 5: Budgeting H-1B at pre-2025 cost levels

On 19 September 2025, a Presidential Proclamation was issued restricting entry on the H-1B unless new petitions are accompanied by an additional $100,000 payment. USCIS guidance published on 20 October 2025 confirmed that the supplemental payment applies to new H-1B petitions filed on or after 21 September 2025 for beneficiaries who are outside the United States and do not hold a valid H-1B visa. Certain in-country change-of-status, extension, and amendment petitions are not subject to the payment, and a narrow national-interest exception exists. The proclamation is currently being litigated. For an Irish employer weighing H-1B for a new overseas hire in 2026, the realistic cost of the route, including the supplemental payment, standard government fees, premium processing, and legal fees, is now materially higher than it was 18 months ago. Plan accordingly.

The 2026 Policy Landscape Irish Employers Need to Know

The H-1B $100,000 supplemental payment

Effective from 12:01 a.m. Eastern Daylight Time on 21 September 2025, a Presidential Proclamation restricts entry under the H-1B category for beneficiaries outside the United States unless the petition is accompanied by a $100,000 payment made through pay.gov. USCIS guidance issued on 20 October 2025 clarified that the payment does not apply to H-1B petitions filed before the effective date, to previously issued and currently valid H-1B visas, or to most in-country extension, change-of-status, or amendment petitions. The proclamation is authorised for 12 months unless extended. Federal litigation challenging the proclamation is pending.

What it means for Irish employers:

If the person you want to send to the U.S. is currently outside the United States and does not hold a valid H-1B visa, the H-1B route now carries a material additional cost. For many Irish companies, this changes the calculation, and increases the relative appeal of the L-1 (for intracompany transfers) and E-2 (for Irish nationals).

The EB-5 Regional Center Program: Key 2026 Deadline

The EB-5 Immigrant Investor Program’s Regional Center pathway is authorised through 30 September 2027 under the EB-5 Reform and Integrity Act of 2022. A statutory grandfathering provision protects the processing of petitions filed on or before 30 September 2026 even if the program lapses thereafter. Current investment thresholds are $800,000 for investments in a targeted employment area or infrastructure project, and $1,050,000 for investments outside a targeted employment area.

What it means for Irish employers:

The EB-5 is a permanent-residence route, not a route for a specific employee move. But for an Irish owner-investor who is sending themselves to the U.S. to run the business, and who also wants a path to permanent residency for the family, EB-5 is materially relevant.

As of the May 2026 Visa Bulletin, EB-5 remains current for Irish chargeability in the unreserved category and in the rural, high-unemployment, and infrastructure set-aside categories. Visa availability should still be checked at the time of filing.

If permanent residency is part of the plan, the 30 September 2026 grandfathering deadline is a decision point that needs to be on the timeline.

The ‘gold card’ proposal

The Gold Card remains a live-policy issue, not a settled substitute for E-2 or EB-5 planning. For most Irish owner-investors, E-2 and EB-5 remain the main routes to assess first.

The programme is based on executive-branch action, with legal challenges active and significant implementation questions open. Mechanics, eligibility, and timelines remain subject to change.

What it means for Irish employers:

For most Irish owner-investors, the Gold Card is not the primary route to consider in 2026. The E-2 (temporary) and EB-5 (permanent) remain the reliable investor pathways. The Gold Card may be relevant for very high-net-worth individuals who also meet EB-1A or EB-2 NIW criteria, but it carries material legal and policy risk that a reliable adviser will name clearly. (Note: This is a live-policy area which your lawyer will assess case-by-case rather than commit to a general rule.)

Premium processing and consular scheduling

USCIS premium processing (15-business-day adjudication) remains available for most L-1 and H-1B petitions for an additional government fee. Consular scheduling at the U.S. Embassy in Dublin and the London specialist E-visa unit continues to fluctuate with caseload. Timelines should be verified at the point of filing rather than estimated from published averages.

What The First Conversation with Flynn Hodkinson Covers

The first consultation is where the facts of the case meet the available visa routes. It answers four questions: which routes are open given the specific facts, which is most likely to succeed, what the realistic timeline is, and what the total likely cost is, including government fees, supplemental payments where applicable, and legal fees under a defined scope.

Not every case is straightforward. Sometimes the preferred route carries more risk than originally assumed or more risk than preferred.

Sometimes a route that was not considered turns out to be the stronger option, for example, an E-2 instead of an L-1 where the Irish company’s ownership structure genuinely favours the treaty route. A good first consultation surfaces these distinctions rather than confirming the employer’s first instinct.

Not every case can proceed. If the facts do not support a viable visa application within business needs that is important information, and it is better to know it before committing commercial resource to a plan that cannot be executed.

What To Do Next

U.S. immigration for an Irish employer is not one decision. It is a short series of structural questions: who is going, what will they do, what is the corporate relationship between your Irish and U.S. entities, what nationality does the person hold, and what timeline does the business need? The answers determine which visa route is available, how long it will take, and what it will cost in the 2026 environment.

You do not need to understand U.S. immigration law to begin. You need to know your company’s facts and your employee’s facts. A U.S. immigration lawyer who understands Irish company structures and Irish treaty eligibility will do the rest.

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.