Temporary Work Visa Options for Investors

THE CHOICE – Selecting the right temporary work visa option to enable you to develop and direct your U.S. investment and also bring in key personnel to work for the company in the United States

In some rather unusual situations, work visas such as the H-1B specialty occupation or O-1 extraordinary ability work visa categories may offer the best solution when you seek authorization to be employed by the new or purchased U.S. entity that you wish to direct and develop. However, in the great majority of situations, your choice will be between the following:

OPTION #1 The E-2 Treaty Investor (or E-1 Treaty Trader) Visa;

OPTION #2 The L-1 Intracompany Transferee Visa.

In some cases, the choice is very straightforward because your country of citizenship does not have a treaty of investment (or trade) with the United States. Therefore, absent selection in the H-1B lottery or something less usual like an O-1 extraordinary ability visa, the only way a work visa case will typically succeed is via the L-1 intracompany transferee category. In other cases, either the E-2 or L-1 category may conceivably work and so the decision-making process may be more complex and nuanced. While there is no substitute for a discussion with an experienced immigration lawyer to review the E-2 and L-1 intracompany transferee requirements with you in the context of your business plans, the following grid may help to identify some potential pros and cons of the E-2 and L-1 visa categories in juxtaposition to one another:

FACT OR FACTOR	E-2 INVESTOR	L-1 TRANSFEREE
A Treaty of Investment Must Exist Between the Country of the Investor’s or other Visa Applicant's Nationality and the United States	Yes – without such a treaty, an E-2 case is not possible	Not a requirement
The Investor or Visa Applicant Must Have Worked for the Affiliated Foreign Country full-time for at least one continuous year during the immediate past three years	Not a requirement. The investor or other E-2 visa applicant can be brand new to the organization	Required
The Foreign Company Must Continue to Be in Business for the Entire Time that the Investor or other Foreign E or L Employee Holds the Work Visa	Not required. The investor can sell any foreign companies that he or she owns (but it could impact one permanent residence option)	Required (if the international organization no longer is a “qualifying organization”, the L visa status will lapse)
Family Members can obtain Dependent Visas	Yes – spouse and children under the age of 21	Yes – spouse and children under the age of 21
Spouse Work Authorization	Yes, spouse may apply for work card but cannot start work until it is in hand	Yes, spouse may apply for work card but cannot start work until it is in hand
The Size of the Investment	Must be substantial enough to support a viable business of the type being purchased or created	A similar review will occur, but it is not necessarily as fundamental to qualification
The Traceability of the Investment All the Way Back to the Top Level	Yes, critical. This can be a challenge where some privately held companies have a large number of layers leading to the ultimate shareholders	The key is instead providing that the affiliation between the sending and receiving companies meets the regulatory test. Some companies may have a streamlined, expedited approach called an “L blanket” available
The Hiring of U.S. Workers	It is critical to be able to show that the investment is not “marginal” (i.e, only providing jobs for the investor and family), and that the number of E-2 visas sought is proportional to the size of the U.S. workforce	As with the E-2, the more U.S. workers that are hired, the stronger the claim will be
The Length of the Initial Work Visa	Depending on the reciprocity agreement between the investor’s company and the foreign country, possibly up to five years initially – but can be shorter	If the sponsoring U.S. company established in just the past year, a one year “new office” L-1 visa is issued. For established companies, the initial term is three years
The Renewability of the Work Visa	Potentially in five year increments – no ultimate time limit	Two year extension increments. L-1A managers or executives have a total limit of seven years; L-1B specialized knowledge employees have a limit of five years
The Business Plan	A critical component and selection of a professional business plan producer/vendor is critical	Critical for new office cases; may not be necessary for extensions (although it can be included and may be advisable for smaller companies)
The Likelihood of a Government Challenge	Very fact specific – and also dependent on the type of company, its size and the country	High for “new office” cases; less high for well-established and larger companies
The Dynamic Regarding Renewal	Compared to the L, if one gets five (or at least three) years initially; there is ample time to grow the company before a new E-2 visa application must be filed	For new office cases, less than a year will transpire between entry on the L visa and the need to file the new office extension; so the company must really grow revenue, staff and business activity quickly
Factors relating to conversion to permanent resident status	The principal investor is not likely going to succeed with a PERM labor certification application based case since that would involve a test of the labor market for their own position. However, if the investor held an executive or management role for at least one full time continuous year before the L transfer with a properly affiliated foreign country, then an I-140 Multinational Executive/Manager case may work as long as the qualifying organization continues to exist. Unless consular processing for permanent resident status is chosen, the investor may have a period of about a half year where foreign travel is not possible, so many E-2 holders choose consular processing for a permanent resident card.	L visa holders have only a very short time period when they cannot travel abroad if they choose the U.S. based “adjustment of status” processing option. Holders of L-1A executive/manager visas, whose foreign job for at least one year during the three years immediately prior to the US transfer, are particularly well positioned. If there is a new office case, the US company must have been doing business for one year before an I-140 Multinational Manager/Executive Immigration Petition case can be filed. Due to the seven year limit on L-1A status (and the five year limit on L-1B status), and the backlog in the immigration quota system – a principal investor may wish to examine this possibility one or two years after arrival on an L-1 visa

We can help you assess the right choice for you, as it is often a complex judgment and should align with the goals and the facts and plans for your business. The above grid is just a starting point for such consideration and discussion.

Consultations

This site covers these topics in some detail, but you are also welcome to request a free immigration consultation with Lisa M. Galvan, Esq. by sending an email to lisa.galvan@hammondlawgroup.com or calling her office at (513) 287-6865.

Experienced

Lisa M. Galvan has over two decades of experience guiding companies ranging from foreign entrepreneurs who have a U.S. business idea they want to develop to small family-owned businesses to mid-sized private multinational companies to name-recognizable, large publicly-traded companies in navigating the visa and permanent residence process.