For foreign nationals setting up a business in the U.S., deciding which business entity to use is not half as important as deciding which visa category to use. Someone needs to be able to run the business once it has been established, and it definitely shouldn’t be someone on a tourist visa! Generally, where the new entity being established in the U.S. is a subsidiary, parent, branch, or affiliate of a foreign company, the L-1 visa category is preferred. However, foreign nationals from certain countries that have a specific treaty with the U.S. have an attractive alternative: the E-1/E-2 visa category. The appropriate choice will depend on many different factors, which will be discussed below.
In order to appreciate the various nuances of this important decision, it is helpful to first briefly review the L and E visa categories.
The E-1 treaty trader visa permits nationals of an E-1 treaty nation to enter the U.S. solely to carry out substantial trade which is international in scope principally between the U.S. and the foreign state of which he/she is a national. Trade means the existing international exchange of goods, services, technology and its transfer. The item of trade, and title of that item, must pass from one party to the other as part of the exchange. To be “substantial,” the amount of trade must be sufficient to insure a continuous flow of trade, where volume is given more weight than value. The trade must also be principally between the U.S. and the treaty country, meaning more than 50% of the total volume of international trade. This visa category is also available for executives, supervisors and essential employees having the same nationality of the treaty employer.
The E-2 treaty investor visa permits foreign entrepreneurs from E-2 treaty countries to enter the U.S. solely to develop and direct the operations of an enterprise in which the alien has invested, or is actively in the process of investing, a substantial amount of capital in a bona fide enterprise. To be “substantial,” the investment must be significantly proportional to the total investment, which generally means that the lower the cost of the business, the higher the investment must be. The investment cannot be marginal, meaning it must have the present or future capacity to generate more than a minimal living for the investor and his/her family. Investment activities can include the purchase of a new business, not just the formation of a new one. This visa category is also available for executives, supervisors and essential employees having the same nationality of the treaty employer.
The L-1 intracompany transfer visa permits foreign nationals to enter the U.S. to continue to work for the same employer, its affiliate or a subsidiary. Premises for the U.S. office must be been secured and money invested or committed for business operations. To qualify for an L-1 visa, the applicant must be an executive, manager or an employee with specialized knowledge of the company’s products, services, processes and procedures. The employee must have worked for the company overseas for one year in the three years before applying for admission to the U.S. Perhaps most importantly, a qualifying relationship (such as parent-subsidiary, branch or affiliate) must exist between the foreign and the U.S. business entities.
Now, let’s try to make some sense out of these categories. Which one is really the best fit?
- Country of Nationality.
E-1 or E-2 visas arise out of treaties the U.S. has signed, such as Treaties of Friendship, Commerce and Navigation as well as Bilateral Investment Treaties. Therefore, this visa can be used only if a treaty exists between the U.S. and the country of nationality of the foreign company or investor. If the foreign national does not hail from a treaty country, the choice is probably going to be L-1 by default. For a list of treaty countries, click here: http://travel.state.gov/visa/fees/fees_3726.html
- Nature of Business.
Where there is established, healthy international trade, the E-1 might be easier to obtain. It does not require a steep investment like the E-2. The substantiality of trade is determined by the volume of trade, number of transactions and the recurrence of these transactions. Where no trade exists, the E-2 visa can be used to set-up a business in the U.S. if the investment involved is substantial. The L-1 visa does not carry a substantial investment requirement, and is useful for any international companies looking to set-up a branch, subsidiary, joint-venture or affiliate company in the U.S.
- Employment with foreign entity.
To qualify for an L-1 visa the applicant must be an executive, manager or a specialized knowledge employee who has been an employee of the foreign company for at least one year within the preceding three years. There is no such requirement for E-1 or E-2 visas. Absent a foreign employer, a treaty national looking to make an investment or set up a business in the U.S. will likely want to choose the E visa by default, assuming the requirements can be met.
- Qualifying relationship.
The L-1 visa can be used to transfer an employee of a foreign company to establish, manage or work for a related organization in the U.S. This qualifying relationship must be in the form of a parent, subsidiary, branch or affiliate. With respect to the E-1 or E-2, both require that the company or the individual engaging in trade or investment in the U.S. have the same nationality as the treaty country.
- Adjudicating Agency.
An E visa application is filed with the embassy or consulate in the home country of the applicant. Once the consulate has registered the E company, treaty national may apply for a visa to enter the U.S. The L-1 has an extra step. First, a petition is filed with the appropriate service center of the U.S. Citizenship and Immigration Services (USCIS). If the service center approves the petition, an approval notice is sent to the applicant, which must be submitted with a visa application at the consulate abroad. The significance in the different processing lies in the review protocol. With the E, as the application is consular driven, the applicant has an opportunity to argue the merits of his or her case personally. In contrast, the L-1 process is largely document driven, and all communication regarding the merits of the case is done via mail. Sometimes this results in a decision that may have had a different outcome were a personal discussion available.
- Processing Times.
The E visa application generally takes about 6-8 weeks to process at any given embassy or consulate. Compare that to the L-1 visa petition, which can take 15 days or less with expedited processing, and then a week or two more for the visa processing at the consulate. The disparity in processing times favors the L-1.
- Period of Initial Employment.
E-1/E-2 visas are granted for a period of five years; however, E visa holders are admitted to the U.S. for periods of two years at a time. L-1 visas may be granted for a period of one year in the case of new offices (in existence for under one year at time of filing), and three years for businesses more than a year old. If the company requires more than a year to establish in the U.S., the use of E will give the new company two years as opposed to only one year for the L status.
- Validity Periods.
E-1/E-2 visas can be extended indefinitely for up to two years at a time, provided that the company continues to operate successfully. The L-1 visa is valid for up to 5 years (for specialized knowledge employees) or 7 years (for managers or executives). Once the employee has spent one full year outside the U.S. the clock starts over.
- When a Green Card is the Ultimate Goal.
The L-1 is probably the best route in cases where the intention of the applicant is to ultimately apply for a green card during his/her stay in the U.S. An L-1 visa holder may pursue permanent residency and still maintain L-1 status without any trouble. This is not quite the case with the E-1/E-2. The Immigration and Nationality Act specifically state that L and H visas are “dual intent,” and their holders are not required to prove that their intention to remain in the U.S. is temporary. “Dual intent” means that the L or H beneficiary can maintain the intent to remain in the U.S. no more than the visa validity and also have the intent (dual intent) to obtain permanent status. Should an E Visa holder apply for a green card, his/her E visa status may be jeopardized.
- Spousal Employment under each.
Spouses of E-1/E-2 and L-1 nonimmigrants are eligible to apply for an Employment Authorization Document and to work without restriction. They can apply immediately after initial entry into the U.S. in E-1/E-2 or L-2 status. Current USCIS processing time is about 60 – 90 days, and the EAD is issued for up to 2 years.
- L-1 time counts against H-1B time.
Don’t forget to do the math. In some cases, individuals will want to switch to H-1B status (i.e., green card strategy, company restructure), which only allows for stays up to 6 years, barring a timely filed green card application. All time spent in L-1 status will count toward H-1B time. Time spent in E status will not. Conversely, all time spent in H-1B time will count toward L-1 time, however it is typically difficult for a person in H-1B status to switch to L-1 status because of the one-year-in-the-preceding-three-years employment abroad requirement.
- L-1 status is streamlined for Canadians under NAFTA.
Canadians are visa exempt, and therefore are eligible for direct submission of the L-1 petition at a class A port of entry. This saves a lot of time and filing fees. Mexican citizens, although included in NAFTA, must still first apply for the L through the appropriate USCIS ServiceCenter.
- L has Manager and Specialized Knowledge categories. E has Executive and Essential Skills categories.
The L-1A manager and the E-1/E-2 executives are similar. The E-1/E-2 executives must be “principally and primarily, as opposed to incidentally or collaterally, executive or supervisory in nature”. The L-1A manager / executive must “manage the organization, or a department, subdivision, function, or component of the organization.” The regulations elaborate the requirements further, but they are generally suitable for individuals who will be directing and leading the U.S. companies or a key component of the company in the U.S.
Individuals with “special qualifications” and who possess skills “essential to the successful or efficient operation of the treaty enterprise” may obtain E-1/E-2 essential worker status. Similarly, people with specialized knowledge of the company can qualify for L-1B visa . In other words, the law permits individuals with specialized knowledge or essential skills of the company to obtain status even though they may not be managing the organizations.
- L has a Blanket.
If your company qualifies for the L-1 blanket, do it. The requirements for the blanket L are found in 8 CFR 214.2(l)(4). Basically, a company can seek a blanket L if it:
- has been doing business in the U.S. for at least a year;
- has three or more U.S. and non-U.S. branches, subsidiaries, or affiliates, and
- has either (a) obtained then L-1 (A or B) visas in the past 12 months, (b) has U.S. subsidiaries or affiliates with combined annual sales of at least $25 million, or (c) have a U.S. workforce of at least 1,000 employees
The blanket saves money in filing fees and by-passes the often over-bearing scrutiny of the USCIS Service Centers. Similar to the E visa applicant, the blanket L visa application can respond to the visa officer’s questions face to face, which tends to increase its chances for success.
- E has Subsidiary E.
E-1 and E-2 visa holders can work for the parent or petitioning treaty organization, as well as any subsidiary of the parent organization or enterprise. The blanket L employees can work for any company listed on the blanket L petition. However, an individual L employee can perform work only for the petitioning entity.
After careful analysis, some individuals will find that they qualify for either E or L status, but not both. Conversely, we occasionally encounter individuals who can qualify for both the E and L visa. For some, the differences between the E or L are insignificant, while for others it can mean the difference between getting an approval or not. There are many subtle differences between the E and the L, and each should be reviewed carefully. The long and short-term objectives, nature of the enterprise, backgrounds of the individuals, and amount of the investment all contribute to the decision. We have identified 15 common factors to distinguish between the two visa categories, and the decision may come down to which one gets the eight checks required to tip the scale.