E2 Treaty Investor Visa versus L-1 New Office/Transfer Visa: Which visa works best for your business?

Frequently our firm receives telephone calls from potential clients asking for our quote to source their company a L-1A visa for an executives or managers.  After collecting the requisite preliminary information, the first question we ask is why do they believe the L-1A visa is the best visa option for their company.

Were they advised by a US immigration lawyer this is the appropriate visa?  Have they previously transferred employees to a US branch or subsidiary office under this visa category?

The most common answer received is usually the potential client informing us they did a bit of independent research online and found the L-1A visa best fit their company’s needs.

However, is the L visa always the best option for transferring an employee abroad or establishing a new branch, subsidiary, or related office in the United States?

Unfortunately, there isn’t a straightforward answer to this question.  Much depends on the company, the employee to be transferred, and the longterm corporate immigration goals.  Nevertheless, most potential clients who ring our office inquiring about the L visa do not realise there may be a more suitable visa category which would save their company time and money.

At the most basic level, the L-1 visa allows a company to transfer an executive or managerial employee to an existing US subsidiary or branch office, or establish a new branch or subsidiary company in the United States.

If approved, employees being transferred to an already existing related office will be granted the L-1A visa for a period of three (3) years.  New office L visa petitions will be granted for a period of one (1) year.  A new office is any related US entity which has been operating (i.e. trading) for a period of less than one (1) year.

Nationals of certain countries, including the United Kingdom, Belgium, and much of the European Union, may benefit from exploring an alternative visa option which accomplishes the same goal as the L-1 visa.  This options is the E-2 Treaty Investor Visa.

Why is the E-2 a better option over the L-1 visa?

For qualified applicants, the E-2 visa may be a more cost effective solution.  This is particularly the case for those exploring the idea of opening of a new US branch or subsidiary.

As discussed above, the L-1 visa for a new office in the United States will be granted for a maximum period of one (1) year.  Alternatively, the E-2 investor visa may be granted for a period of five (5) years.  This includes visas for startups.

By utilising the E-2 visa, clients can save valuable time and money should they obtain a five (5) year visa over a one (1) year L-1 visa.  Additionally, the E-2 visa is processed directly through the investor’s local US Embassy or Consulate.  The L-1 visa, although partially processed at the consular level, must first go through adjudication at USCIS in the United States.  Further, the government filing fees for the L-1 visa are approximately $2,000 USD, whilst the E-2 government fees are approximately $350 USD.

Most US immigration lawyers are also of the opinion that the burden of proof required by US immigration officials is higher for L-1 visas being processed through USCIS versus the E-2 visa at the consular level.

Some potential clients wish to explore the L-1 visa as they do not want to make an investment in the business, as required by the E-2 visa.  However, both the E-2 and L-1 visas have similar requirements which inevitably lead to an investment in the US enterprise.

Both visa categories require a US entity to be incorporated, an office space to be secured, and the appropriate equipment and operating capital to begin trading.  Both visas also require a comprehensive business plan to be submitted along with the petition/application.

In the end, most qualified clients are better suited to proceed with the E-2 visa over the L-1 visa, as they will save money and have the potential to be granted a visa for a longer period.

When would the E-2 visa not be an appropriate visa option over the L-1 visa?

As the E-2 visa is treaty based, nationals of countries that do not have the requisite treaty with the United States are not eligible for the E-2 visa.

For example, if a potential client holding a Russian passport consulted with our office regarding a business expansion visa, we would not discuss the E-2 visa as the United States do not maintain a treaty with Russia.

Fortunately, Belgium, the United Kingdom, and much of the EU do maintain an E-2 treaty with the United States.

Some larger companies with complex corporate structures may also not qualify for E-2 visa status if they are unable to account for at least 50% ownership from the same treaty company.

Take the following hypothetical.

Acme Company Ltd. is a United Kingdom limited company looking to make a US expansion and send over their VP of Operations, a UK national, to run the new US entity.  The US entity, Acme Company LLC is owned 100% by Acme Company Ltd.

Acme Company Ltd. is privately owned by four individuals.  One of the owners is a United Kingdom national.  The remaining three owners are Belgian nationals.

We would not be able to proceed with the E-2 visa in this scenario, as the employee needing to be transferred is a UK national, and the ultimate owner of the US entity is not owned at least 50% by UK nationals (only 25%).

Alternatively, since Belgium is also an E-2 treaty country, the company could be registered as an E-2 entity if they wished to send employees to the US who also hold Belgian nationality.

Contact our London or Brussels office to speak with a US immigration lawyer and to learn more about your business’ US expansion options.
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Barella Global | www.barellalaw.com

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