Episode 97: Trick or Treaty — Is a treaty visa right for your immigration program?

Episode 97: Trick or Treaty — Is a treaty visa right for your immigration program?

This episode of the BAL Immigration Report is brought to you by BAL, the corporate immigration law firm that powers human achievement through immigration expertise, people-centered client services and innovative technology. Learn more at BAL.com.

In this week’s episode, BAL’s David Wagner and Nathan McKinlay-Roy discuss when employers should consider treaty visas as viable options for their immigration programs. Plus, the latest immigration news.

From Dallas, Texas, I’m Rebecca Sanabria.

The Treaty Trader and Treaty Investor visas were established to facilitate and enhance the economic relationships between the United States and the countries it maintains commercial treaties with.

The first treaty visas were enforced in 1815 with the United Kingdom and most recently in 2024 with Portugal.[i]

According to the latest State Department figures, there are more than 80 designated treaty countries with the United States.[ii] In fiscal year 2023 there were 71,263 treaty and investor visas issued, demonstrating a 13% boost in the number issued the prior fiscal year.[iii]

Despite the increase, treaty and investor visas are underutilized by employers.

BAL senior associates David Wagner and Nathan McKinlay-Roy from the Denver office joined the BAL Immigration Report to discuss when employers should consider if a treaty or investor visa is a better option for their immigration program.

Wagner: This is Dave and Nate from Denver, Colorado, and we’re going to be talking about E visas and how those are potential options for your program.

How are you doing today, Nate?

McKinlay-Roy: I’m doing good, Dave. Thanks for that introduction. We’ve been working together now for a while in Denver over the past two-and-a-half, three years. The E visas pose a lot of problems for people in our market, and I think today’s discussion will definitely help them figure out what’s best for their program.

Wagner: Today we wanted to talk about the pros and cons of utilizing the E visa categories. Initially, I wanted to discuss what the difference is between the E-1 visa, which is a Treaty Trader visa, and the E-2, which is also a Treaty Investor visa.

The idea with the E-1 is we’re really focused on a substantial trade between specific countries. Generally, there is a list for the E-1 and E-2 visas that are specific to a prior treaty with the U.S. government. If the country is on that list, that’s the first step to identifying whether or not an E visa for E-1 or E-2 is a valid or viable option.

The E-1 is again a Treaty Trader visa. So we’re focused on a substantial trade or commerce and navigation is the specific word usage. But we’re looking at the trade of goods, services, insurance, transportation, tourism, technology. There’s quite a list and so that is a little less used than the E-2 Treaty Investor visa.

The big requirements for the E-2 Treaty Investor visa is that we do need to show substantial amount of capital being invested into the United States into a new commercial enterprise or a previously existing enterprise that’s going to be 51% or more owned by the nationality that’s on that treaty list that I mentioned previously.

The idea is for someone who wants to invest into the United States, there’s not a specific amount of money to invest into the United States, but it would be a substantial amount of money being invested in order to generate essentially an income for yourself as an investor.

The benefit of that is that there is no specific strict requirements, but you do have to show the government, the U.S. government or U.S. Department of State or U.S. Citizenship and Immigration Services, that you will be investing enough money essentially to operate a business and generate an income for yourself. There are more specific requirements, but that’s a general sense of the visa.

Again, for the E-1 and E-2 nonimmigrant visas, we are looking at nationality. The individual that’s investing money or setting up these different trading options through the different entities, they would need to be on the treaty list from the U.S. Department of State list. That’s the initial idea behind the E-1 and E-2 visa.

But how does this impact a multinational corporation? I’m going to hand it over to Nate to speak to how would a company be bringing their employees to the U.S. with an E-2 or E-1 potentially?

McKinlay-Roy: It’s a good question. I think the E-2 in particular, that’s a visa classification that I work heavily with various companies in my portfolio. It’s a common question that we get. How do we navigate these kind of underutilized visa classifications when they’re available to companies? They do offer a lot of advantages, at least in the short term. And they offer, as we’ll discuss too with other E visa categories later in this discussion, they do offer some long-term obstacles that we have to navigate.

I think from a company standpoint, just establishing a strategy to transfer talent to the United States, when the E visa, E-1, E-2, when it’s available to a company, it can offer a lot of short-term benefits. What I mean by that is if a company is looking to satisfy the immediacy of a transition to the United States, they have someone who’s essential to their workforce, they have someone who’s a critical manager internally, perhaps maybe in London, maybe in Helsinki, and they want to get them to the U.S. operations, the E visas allow for an immediate pipeline to transition that talent to the U.S. operations.

Other visa classifications don’t. For instance, there are programs, and we have a lot of programs between Dave and myself, especially in the Denver office, especially with a market like Denver that happens to be a little bit smaller but also a little bit more diverse in terms of work. We do run into situations where a lot of our clients do maintain L-1 blanket programs, but they also have opportunities to do E visas.

Some of those requirements like work abroad outside the U.S. for a certain time frame that you would have for an L don’t exist for the E-2, the E-1. The benefit from a strategic standpoint for a lot of companies in the U.S. when they’re looking at or evaluating what options are on the table, the Es provide a really easy way to bring someone in quickly. That being said, and notwithstanding the immediacy of that benefit, there are long-term challenges that the Es pose.

The Es are what we would call a strict nonimmigrant visa. What I mean by that is they don’t allow for someone to manifest an intent in the U.S. to be here on a lawfully permanent basis. In other words, they’re not allowed to get a green card. That isn’t entirely accurate. The Es are not in and of themselves prohibitive of someone getting a green card long term. What they do is they create logistical obstacles for people to get lawful permanent residence in the U.S. that you wouldn’t necessarily see with an H or an L visa, what we call dual intent visas in the United States.

Wagner: Generally, a multinational company that has an employee that has worked with the company for one of the three preceding years outside the United States has the ability to potentially transfer that employee to the United States.

There’s two main options: There’s L-1A multinational manager or executive, and L-1B, which would be an intra-company transferee with specialized knowledge. Typically, the faster route is pursuing a blanket L-1, which is directly through a U.S. consulate or embassy. Individual L-1s are a bit lengthier because you do have to process through U.S. Citizenship and Immigration Services, and there’s additional cost and timing associated with that.

Nate, do you want to go into kind of the differences?

McKinlay-Roy: Sure. There are two ways, typically speaking, like Dave just mentioned, to process an L-1 visa application. There’s actually a third. If you’re a Canadian and you don’t have a blanket and you also wouldn’t qualify for a blanket, we like to call those NAFTA Ls or USMCALs, depending on who you talk to. But these are the two most common ways for companies to pursue an individual L-1 application through USCIS. That petition process is eligible for premium or expedited processing, which allows for two weeks of adjudication time from U.S. immigration.

That’s a two-step process that just at a high level the company would file the petition on the individual’s behalf, assuming U.S. immigration approves the application, then the individual would schedule a visa stamping appointment at the appropriate U.S. consulate overseas. These are outside the United States.

The more common — and definitely the more efficient approach, assuming the company qualifies to do so — would be to set up or establish an L-1 corporate blanket program.

This is really just at a high level. A preapproved program by U.S. immigration allowing for the most effective and efficient transfer of talent to the U.S. operations from the global organization, be it the parent, subsidiary, affiliate, whatever it might be globally.

The reason this is the most effective and efficient process is it allows for a one-step application cycle. With the preapproved program, the individual who’s being transferred is allowed to simply apply for the L-1 visa directly at the appropriate U.S. consulate outside the United States. They don’t have to get preapproval from Homeland Security or USCIS. They can just go directly to the U.S. consulate and they would be provided a blanket packet that they would then get approved by the U.S. consulate — assuming all goes well.

In terms of processing, if we were going to say from a timing standpoint if anyone had questions between the Es and the Ls, typically speaking, when you’re looking at an L-1 blanket program, you’re not going to have much timing difference between getting someone an E visa versus someone getting an L visa.

More importantly, for the L visa one of the downsides of it, if you’re looking at a comparative analysis between the E-Verify, is that it is capped at either five years in the U.S. or seven years in the U.S — five years for an individual contributor, the L-1B then conversely seven years for the multinational manager executive.

The difference being though, typically speaking, green card lifecycles for these individuals can be done quicker, especially for L-1, as that often opens up doors for quicker routes to a green card, especially through first preference classification as a multinational manager executive.

But it is definitely one of the downsides we do have to navigate with clients that are used to E visa processing, which allows for basically indefinite technical extensions going forward so long as someone doesn’t pursue a green card.

The major benefit and kind of counterargument to that is the L does allow for dual intent. For instance, for an E-2 visa, there’s going to be a statement of intent to depart the U.S. that’s actually accompanying the individual at the appointment at the consulate. That statement is an attestation that someone’s going to leave the U.S. when the project ends on the E visa.

There’s no such requirement for an L when someone comes to the U.S. on the L visa. They can manifest an intent to be here to complete their project on a temporary basis, but they can also manifest an intent to remain here permanently by virtue of that dual intent.

When we do the green card process with a company, it does not negate that person’s ability to renew the L, travel with the L while the green card’s ongoing, etc. It allows for a much more fluid transition to the green card than the E visa does, and so if you’re looking at it from a high level, processing time is pretty much the same.

It does depend on the consular post where someone’s located, but at the same time, most of the time the lifecycle is roughly the same. I would say the longer-term benefits fall on the side of the L as opposed to the E.

But again, like Dave mentioned, it just depends on the industry, depends on the project need. It depends on what the company actually wants in terms of the relocation, and I think as attorneys, that’s the most important thing that we have to do in a consultation and assessment and evaluation is actually get the high-level overview and digest exactly what the need is for the company, both short and long term.

Learn more about which visa options are right for your immigration program at bal.com.

And now, the top U.S. and global immigration news.

President Biden released an extensive memorandum on the United States and artificial intelligence, providing further guidance on the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence issued on Oct. 30, 2023. The memorandum provides further direction on how the U.S. can advance its leadership in AI, harness AI to fulfill national security objectives and foster its safety, security and trustworthiness.

A bipartisan group of U.S. senators urged the Department of Homeland Security and Department of Labor to release the maximum allowable number of additional H-2B visas for fiscal year 2025. Because DHS has released additional H-2B visas in the past, a release within the next month is anticipated. BAL is monitoring the situation and will post updates accordingly.

In global news, the Canadian government announced the 2025-27 Immigration Levels Plan, forecasting reduced targets across multiple immigration streams over the next two years. The transitional Levels Plan is designed to alleviate pressures on housing, infrastructure and social services and pause population growth in the short term to achieve well-managed, sustainable growth in the long term.

The Canadian government also announced effective Nov. 8 the starting hourly wage for workers in the high-wage stream of the Temporary Foreign Worker Program will increase 20% to the median wage in the applicable province or territory of work. A greater number of jobs are expected to be subject to the stricter rules of the low-wage stream after this wage threshold change.

Find all of our news at BAL.com/news. Follow us on X at @BAL_Immigration. And sign up to receive daily immigration updates in your inbox at BAL.com/newsletter.

We’ll be back next week with more insights from the world of corporate immigration.

I’m Rebecca Sanabria. Thanks for listening.

Copyright

The BAL Immigration Report is provided by BAL. Copyright 2024 Berry Appleman & Leiden LLP. All rights reserved. Digital redistribution to the public is permitted only with express written permission of Berry Appleman & Leiden LLP. This report does not constitute legal advice or create an attorney-client relationship. Visit bal.com for more information.