Globalised secured an E-3 visa for an Australian entrepreneur who had built and operated a business in the United States under an E-2 Treaty Investor visa, then sold the business to American purchasers. The sale changed the nationality of the enterprise and brought the client’s E-2 eligibility to an end. We developed an E-3 strategy that allowed him to remain employed by the business and perform the operational responsibilities required under the sale arrangements.
| Previous visa | Commercial event | New visa strategy | Outcome |
|---|---|---|---|
| E-2 Treaty Investor | Sale of the business to US purchasers | E-3 specialty-occupation employment | Visa issued |
The client and the commercial transaction
Our client was an Australian entrepreneur who had established and developed a US business while holding E-2 Treaty Investor status.
He had grown the enterprise over several years and remained closely involved in its operations, systems, strategy and expansion. The business operated in a regulated service sector and required experienced executive oversight.
The client subsequently negotiated the sale of the business to US purchasers. The transaction required him to remain with the company as an employee after completion, ensuring continuity and carrying out operational responsibilities connected with the sale.
The transaction created an immediate immigration issue. His existing work authorisation depended on the E-2 enterprise retaining qualifying Australian nationality. Following the transfer to American ownership, that foundation would cease to exist.
Why the sale affected the E-2 visa
An E-2 enterprise must possess the nationality of a treaty country. For a company, nationality is generally determined by the nationality of its owners. At least 50 per cent of the business must ordinarily be owned by nationals of the relevant treaty country.
Once US purchasers acquired the enterprise, the company would no longer possess the Australian nationality required to support the client’s E-2 status. The client’s history as the founder, his original investment and his continuing importance to the business could not preserve the company’s E-2 nationality after the ownership changed.
The ownership rules appear in the Department of State’s E visa guidance, including the requirement that nationals of the treaty country own at least 50 per cent of an enterprise supporting an E-2 employee.
The sale therefore required a new immigration strategy before the client could continue working for the business under its new ownership.
Preserving the client’s role after the sale
The sale arrangements required the client to continue working with the company. His operational knowledge, experience and familiarity with the business were important to the transition.
The new American owners wanted to employ him in a senior operations role. His responsibilities included:
- Overseeing day-to-day operations.
- Developing scalable operating systems and procedures.
- Managing service delivery and organisational resources.
- Maintaining standards within a regulated operating environment.
- Supporting expansion into additional markets.
- Improving technology and operational workflows.
- Managing operational teams and performance measures.
- Overseeing budgets and resource planning.
- Aligning operational execution with the owners’ growth strategy.
The commercial arrangement created a genuine employer-employee relationship. Following the sale, the client would perform services for the company under the direction and control of the new ownership and its board.
This structure supported an E-3 application in a way that differed materially from his previous position as the E-2 investor directing his own enterprise.
Why the E-3 was the appropriate solution
The E-3 category allows an Australian citizen to perform services in a specialty occupation for a qualifying US employer. Unlike the E-2 category, the E-3 does not depend on the employer retaining Australian ownership.
The sale had removed the principal requirement supporting the E-2 while strengthening an important part of the proposed E-3 arrangement: the client would become a genuine employee accountable to the new American owners.
The E-3 strategy required us to establish:
- A qualifying US employer.
- A genuine offer of employment.
- A specialty-occupation position.
- Relevant university qualifications.
- A certified Labor Condition Application.
- Payment of the required US wage.
- A credible temporary employment arrangement.
The same Department of State guidance confirms that an E-3 professional may work for a US employer when the role qualifies as a specialty occupation and the other E-3 requirements are satisfied.
Establishing a genuine employment relationship
The change in ownership was central to the employment analysis. Before the sale, the client had developed and directed the enterprise as its E-2 investor. After the sale, the American owners and the company’s board would control the terms of his employment, performance expectations and continued engagement.
We documented:
- The transfer of ownership.
- The new corporate control arrangements.
- The client’s post-sale employment.
- The board’s oversight of his role.
- His defined operational responsibilities.
- The distinction between his previous investor capacity and his new employee capacity.
The evidence showed that the company would employ him to perform a defined professional role under the authority of its new owners.
Building the specialty-occupation case
A founder’s familiarity with a business does not by itself establish E-3 eligibility. The proposed position must require the theoretical and practical application of specialised knowledge and a relevant bachelor’s degree or equivalent qualifications.
We analysed the actual post-sale responsibilities and presented the role as a specialised operational leadership position. The work required professional knowledge across business operations, organisational management, regulatory compliance, financial planning, systems development, service delivery and multi-market expansion.
We connected those duties to the client’s relevant university qualifications, which included undergraduate and postgraduate study, together with his experience establishing and operating the business.
This approach demonstrated that the new owners were employing him for a professional body of knowledge and experience directly relevant to the position.
Meeting the wage and LCA requirements
The US employer obtained a certified Labor Condition Application for the proposed employment. We assessed the role, occupation, worksite and offered salary against the applicable prevailing-wage requirements. The guaranteed US salary exceeded the required wage recorded through the LCA.
The E-3 application therefore reflected a complete employment arrangement under the new ownership:
- The American-owned company was the US employer.
- The employer offered a full-time specialty-occupation position.
- The client possessed relevant qualifications.
- The employer accepted the applicable wage and compliance obligations.
- The client would perform the work under the company’s direction and control.
Presenting the transaction to the Consulate
The visa application needed to explain why the client was moving from E-2 investor status to E-3 employee status.
We prepared an attorney cover letter and employer support letter that addressed the transition directly. The application included evidence of:
- The previous E-2 visa.
- The proposed sale of the business.
- The resulting change in the enterprise’s nationality.
- The client’s continuing employment obligations.
- The new ownership and control structure.
- The specialty-occupation duties.
- The client’s qualifications.
- The certified LCA.
- The employer’s offer of employment.
The documents presented the change as a commercially coherent transition arising from the sale. The client had built the business as an investor and would continue contributing to it as a professional employee under the new owners.
The result
The E-3 visa was issued.
The client obtained the work authorisation required to continue with the company after the sale and perform his contractual and operational responsibilities for the new ownership.
The transaction could proceed without relying on an E-2 structure that would cease to satisfy the nationality requirement following completion.
What this case demonstrates
- A sale to American purchasers can bring the E-2 nationality basis of an enterprise to an end.
- The immigration consequences of a sale should be assessed before ownership changes.
- An Australian founder can move from E-2 investor status to E-3 employee status when the post-sale position independently satisfies the E-3 requirements.
- A change in corporate control can establish a genuine employer-employee relationship under the new ownership.
- Post-sale obligations should be translated into a defined specialty-occupation role.
- The E-3 can preserve the services of an Australian founder or executive without requiring the acquired business to retain Australian ownership.
- The transaction documents, employment arrangements and visa evidence should tell one consistent story.
Advice for E-2 investors considering a sale
An E-2 investor planning to sell a US business should obtain immigration advice before the transaction closes. Globalised advises Australian founders, investors and purchasers on the immigration consequences of business sales, ownership changes and post-acquisition employment. Our work includes E-2 analysis, E-3 strategy, Labor Condition Applications, employer documentation and consular visa applications.
This representative matter has been anonymised. The business name, industry details, location, transaction terms, dates, remuneration and other non-essential facts have been withheld or generalised to protect client confidentiality. Past outcomes do not guarantee a similar result in another matter.
