Which visa for a US assignment? B-1, L-1, E-2 and H-1B compared

Three questions decide which visa an assigned employee needs: How long will they stay, how long have they worked for the company, and who pays their salary while they are in the USA? Answer those three and the choice between ESTA, B-1, L-1, E-1 or E-2 and H-1B almost makes itself.

In many HR departments the visa question comes too late, usually after project planning and just before the flight is booked. Yet the visa decides what work the employee may do in the USA, who pays them, whether their family can come along and work, and how long they can stay. This page compares the routes open for an assignment from Europe: ESTA and B-1 for short trips, the L-1 for a transfer to the US company, E-1 and E-2 for employees of a company from a treaty country, and the H-1B. For an overview of employment law, tax and social security, see our main guide Sending employees to the USA.

1Three questions before the visa

Every assignment can be pre-sorted with three questions.

How long, and for what? A customer visit, a trade fair or a three-week commissioning job is a different matter from running the US subsidiary for three years. For short trips where the employee does not take up gainful work in the USA, there is ESTA and the B-1. Anything that looks like regular work on site needs a work visa.

How long have they worked for the company? One continuous year of employment with the company abroad within the three years before entry opens the door to the L-1. Without that year, the options are E-1 or E-2, if the company and employee share the same nationality, or the H-1B.

Who pays the salary? For business trips on ESTA or B-1, the State Department requires that the employee receives no salary from a US source. The H-1B is the reverse: a US employer must pay. The payroll also decides the tax, because under tax treaties the USA may tax a salary paid by a US employer from day one. The details are in our article US assignments: tax and salary.

2ESTA and B-1: meetings, installation, training

Citizens of most European countries can enter under the Visa Waiver Program with an ESTA authorization, as visitors and for no more than 90 days per entry. The authorization itself is valid for two years or until the passport expires. The B-1 visa serves the same purpose but allows admission for up to one year, with extensions of no more than six months at a time.

What a business traveler may do is set out in the State Department's Foreign Affairs Manual. Permitted are activities connected to work that essentially takes place outside the USA: negotiating contracts, advising business partners, attending conferences and seminars, taking orders for goods made abroad. Gainful employment in the USA is excluded.

One special rule matters for machine builders and equipment suppliers. On a B-1, an employee may install, service or repair equipment sold by a company abroad, and train US staff on it, if the sales contract expressly obliges the seller to provide this service, the employee brings specialized knowledge, and receives no pay from a US source. Building and construction work on a site is not covered; supervising and training others who do it is. More on our page on ESTA and the B-1 visa.

For professionals who would otherwise fall under an H-1, the Manual provides for the B-1 in lieu of H. The condition is that the salary continues to be paid by the employer abroad and payroll stays abroad. The visa then carries a corresponding annotation.

3L-1: the intracompany transfer

The L-1 is the visa for intracompany transfers. It brings executives and managers (L-1A) and employees with specialized knowledge (L-1B) from the company abroad to a parent, branch, subsidiary or affiliate in the USA. The requirement is set out in the regulations: one continuous year of employment with the company abroad within the three years before entry.

The L-1 suits an assignment for several reasons. There is no cap and no lottery, and you can apply at any time of year. If you are just setting up a US office, the first approval runs up to one year; everyone else gets up to three years. Extensions come in steps of up to two years, to a maximum of seven years on L-1A and five on L-1B. It allows dual intent, meaning a parallel green card process, for managers and executives for example via the EB-1C. And a spouse on L-2 is authorized to work through their status.

Groups with many transfers can obtain approval of a blanket L petition and then apply for the L-1 for individual employees directly at the consulate. All the details are on our L-1 visa page, the fees on L-1 costs and fees, and the requirements for a new office under L-1 for a new US office.

4E-1 and E-2 for employees

E-1 and E-2 are the visas for traders and investors from countries with a trade or investment treaty with the USA. Both can bring employees too. The regulations set three conditions. The employee has the same nationality as the company they work for. They take on executive or supervisory duties, or bring special qualifications essential to the company's operations. And at least 50 percent of the company is owned by nationals of the treaty country who either hold E status themselves or would qualify as a trader or investor. Our list of treaty countries shows which countries qualify.

For a European company from a treaty country with a US subsidiary, this means: an employee of the same nationality can move to the subsidiary on an E-1 or E-2, even with less than a year at the company. An employee of a different nationality cannot, but can use the L-1. E status is granted for up to two years per entry and can be extended without limit. Unlike the L-1, the employee must intend to leave the USA when their status ends. The spouse is authorized to work through their E status, and their nationality does not matter.

The detailed requirements for E-2 employees are in our article E-2 for foreign employees, and those for E-1 employees under E-1 for employees.

5H-1B: for new hires, rarely for assignees

The H-1B is the work visa for professionals in occupations that require a degree. The petitioner is a US employer who commits to paying the prevailing wage. New positions are subject to a cap of 65,000 slots plus 20,000 more for graduates of US master's programs, allocated through a March registration with a weighted lottery. Work can start October 1 at the earliest.

For an assignment it is rarely the right route: the company at home cannot file it, the start date is fixed, and whether the employee is selected is down to the lottery. For people outside the USA there is also the $100,000 payment under the proclamation, whose implementation a federal court has set aside. When the H-1B still fits, for example a new hire with no prior employment at the company, is explained in H-1B visa: lottery, requirements and assignments; the costs are under H-1B costs and fees.

For employees with extraordinary achievements in their field, the O-1 can be an alternative. It requires separate proof of those achievements and is not a route for a typical assignment.

6The family

On longer assignments, the family often has a say in whether the employee goes at all. Here the visas differ markedly.

• L-1: Spouses and unmarried children under 21 come on L-2 and usually get the same length of stay. The spouse is authorized to work through their status; they do not need a separate work permit card but can apply for one.
• E-1 and E-2: Spouses and unmarried children under 21 come in E status, and they need not share the employee's nationality. The spouse is authorized to work through their status.
• H-1B: Spouses and children come on H-4. The spouse may only work if an I-140 green card petition has been approved for the professional or their stay has been extended beyond six years under AC21, and they need their own work permit for it.
• ESTA and B-1: These are made for business trips, not for moving a family.

7The visas side by side

The table below sets the routes side by side. In practice, two rows decide most cases: the prior employment the L-1 requires, and the salary, which under ESTA and B-1 must not come from the US and under the H-1B must come from the US. The nationality row is the hurdle for the E visas: an employee of a European company who holds a passport from a country without a treaty cannot come as an E-2 employee.

For typical cases, this gives a clear match. The service technician commissioning a sold installation for two weeks travels on a B-1 or ESTA, paid by the company at home. The sales director who has been with the company for years and is to build up the US subsidiary goes on the L-1A. The engineer with specialized knowledge of the company's own processes, four years in the business, goes on the L-1B, or on E status if he shares the company's nationality, brings essential knowledge and the US subsidiary meets the ownership requirement. The newly recruited graduate with no prior employment at the company is a case for the H-1B, or for one year of employment in Europe followed by the L-1.

8A checklist for HR

If you are preparing an assignment, work through the questions in this order:

1. Define the work and duration: a business trip without employment in the US, or work on site, and for how long.
2. Check prior employment: one continuous year within the last three years with the company abroad, documented by employment contract and payslips.
3. Clarify nationality: of the employee and the company, for the E visas and for ESTA.
4. Check the US company: whether it exists, who owns it and whether it can support the position. If there isn't one yet, formation and visa belong in one plan, for example with a US corporation.
5. Decide who pays the salary: the company at home, the US company or both, coordinated with tax and, if the US company pays, with payroll in the US.
6. Plan for the family: who is coming along and whether the spouse wants to work.
7. Work the timeline backwards: from the first working day back through the consulate appointment, the USCIS petition and, if needed, the March registration.

Only the US authorities decide on a visa. But if you follow this order, you know the route, the documents and the deadlines before the flight is booked.

In short

• For meetings, negotiations and trade fairs, ESTA for up to 90 days or the B-1 is enough; installation and training work on a B-1 if the sales contract provides for them and the salary comes from abroad.
• Anyone who has worked for the company for one continuous year can move to the US company on the L-1, with no cap and with dual intent.
• E-1 and E-2 cover employees who share the company's nationality and either manage or bring essential knowledge.
• The H-1B suits a new hire by a US company, rarely an assignment: lottery in March, earliest start date October 1.

How we help you

• Visa RoadmapIn writing: which visa fits you and your family, prepared with the immigration attorney on the firm's team.
• Visa Roadmap for Company FormationFormation and visa in one plan, so the company carries the visa.
• Visa and Green Card ConsultationWhich route to the USA fits you, settled in one conversation.
• PayrollPayroll, payroll taxes and filings for your employees in the USA.
• Form a CorporationThe US corporation (Inc) for growth, investors and your visa.