Why Smart Employers Still Feel Lost at the Start of a U.S. Visa Matter

With a highly capable leadership team, your company can boast of having overcome obstacles, continuing on a near-uninterrupted growth path.

Now, having completed the acquisition of a U.S. company, you need to transfer an employee to run the new operation.  

Extensive financial modelling, market-entry strategy, operational logistics: everything is at the ready. Yet now, with the launch imminent, you’re feeling lost in the complexities of the U.S. visa system.

Can it be that the plans, and the timeline, your team has so carefully designed cannot move forward under the assumed timeline?

At a glance: The U.S. visa process can feel confusing because there is no single work visa for every employee transfer. The right visa depends on the relationship between the UK and U.S. companies, the employee’s nationality and role, the work they will perform in the U.S., and the proposed timeline. Some applications require an employer petition to U.S. Citizenship and Immigration Services, while others may be filed directly through a U.S. embassy or consulate. Understanding these facts early helps employers identify realistic visa options, costs and timescales before fixing a start date.

Why it feels this way: the things nobody told you

 The appropriate first question is “What facts about this situation decide what’s even possible?

The four determinants are:

1. the employee’s nationality
2. the precise activity to be performed in the U.S.
3. the ownership/corporate relationship to a U.S. entity
4. timing and worksite facts

 * A job title tells you almost nothing; the same role can qualify under different routes, or none, depending on those four factors.

 A system built for someone else

U.S. immigration guidance is written for U.S. employers and U.S.-based petitions; that guidance has been changing faster recently than at any point in the last decade.

Why do employers feel lost at the start of a U.S. visa matter?

• There is no single “U.S. work visa”.

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

• There are three agencies, not one, involved in the process.

U.S. Citizenship and Immigration Services (USCIS) adjudicates petitions

filed in the U.S.  The U.S. Department of State handles visa applications at embassies and consulates. U.S. Customs and Border Protection (CBP)

makes the admission decision at the border.

• There are two distinct processes: Petitions are filed by employers with USCIS; visa applications are applied for by individuals at a consulate, conflating the two processes is a common error.

* Important accuracy point: some routes for UK companies (E-1 and E-2) are processed directly at the U.S. Embassy in London and do not involve a USCIS adjudication step at all. Generic U.S.-focused articles often describe a process that simply does not match what a UK employer will experience.

 Assumptions that add to the difficulty:

• “The process will work like UK sponsorship.”

It does not. There is no single sponsor licence equivalent, and the employee’s role differs by category.

• “Our company’s size and reputation will carry it.”

Eligibility turns on specific facts: corporate relationships, ownership, nationality, the employee’s role and history.

• “There is one obvious visa; a lawyer just fills in forms.”

Route selection is the strategic decision; the forms follow from that.

• “The timelines listed online are the correct timelines.”

Published processing times shift; headline figures rarely account for the consular appointment stage or current policy litigation.

• “We should wait until the start date is fixed before looking at the visa.”

The visa question should inform the start date, not the other way round.

 What determines the right U.S. work visa for a UK company?

The four questions a lawyer asks first:

1. What is the legal and ownership relationship between the UK and U.S. entities?
2. What is the employee’s nationality?
3. What duties will the employee perform in the U.S., at what level and for which entity?
4. When is the employee needed in the U.S., and what activities are planned before that date?

• L-1A Intracompany Transferee visa

For executives and managers moving within a qualifying corporate group, this visa requires one continuous year of employment with the group within the three years immediately preceding the transfer. This visa is petition-based through USCIS.

• E-2 Treaty Investor and E-1 Treaty Trader visas

Available to UK nationals under the 1815 Convention of Commerce and Navigation between the United States and the United Kingdom, these visas are processed at the U.S. Embassy in London without a USCIS petition stage. The U.S. enterprise must have the required treaty-country nationality. E-1 focuses on substantial trade principally between the US and the treaty country. E-2 focuses on a substantial, committed investment in a real operating enterprise. Qualifying employees must hold the treaty nationality and work in an executive, supervisory or essential-skills role.

• H-1B Specialty Occupation visa

H-1B may be considered for a role that meets the specialty-occupation rules and for a worker who has the required degree or equivalent qualifications. Many first-time private-sector H-1B cases are subject to the annual cap and require electronic registration and selection. Cap-exempt employers and some workers who have already been counted against the cap follow different rules. The employer must obtain a certified Labor Condition Application from the U.S. Department of Labor before filing the H-1B petition with USCIS.

This visa is cap-subject, registration-based, and currently affected by the $100,000 supplemental fee under Presidential Proclamation 10973, which is the subject of ongoing federal litigation.

• What a B-1 business visitor can and cannot do

“Can’t they just travel over for now?” is the question every CEO asks. Yes, travel is allowed for meetings and negotiations, but until the visa process is complete, travel for the purpose of productive employment is not permitted.

* Important point: You do not need to choose a category; you need to know the answers to the four questions listed above; it is those answers which will make the first conversation with a lawyer short and useful.

What a good first conversation with an immigration lawyer looks like:

In contrast with weeks of internal research producing controversial answers (and a start date on which no one can rely), you should leave the first consultation with an immigration lawyer with answers concerning:

• the likely visa category (or at least the two most realistic candidates)
• an honest view of timing
• cost picture
• what the employee and the family can be told now

  Feeling lost is a natural result of the system, not a fault of yours. Once the four facts have been determined, orientation and direction can be quick.

“After 20 years helping corporate clients transfer employees to the U.S., the question I hear most often is some version of “We’re probably asking this wrong, but…”. Your question will never be wrong. What’s important is getting the right answers.”

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.