Doing Business in the US
Q & A: Immigration Considerations for Foreign-Owned Companies
We are a foreign company interested in establishing a presence in the United States. Is there a problem bringing foreign employees to the United States?
Probably not. A number of visa options exist under US immigration law. The best option may depend on a number of factors including, but not limited to: timing; availability; job type; and employee education and experience. Prior to establishing a presence in the United States, certain employees may enter the United States as business visitors to explore investment opportunities, attend conferences and seminars, negotiate contracts and disputes, and to observe activities at a related company.
Does the type of legal entity established in the United States limit visa options?
Generally, for immigration purposes it does not matter whether the entity is a C-Corporation, partnership, LLC, etc. You may want to consult with Womble Bond Dickinson counsel specializing in business formation and related tax issues.
We have heard that the L-1 visa is a good option. Is this true?
The L-1 Intracompany Transferee Visa is the most commonly used visa to accomplish the transfer of key employees among an international group of companies. To qualify, the beneficiary must be transferring from an overseas company to a properly related US company and must have served for one year within the preceding three years in an executive, managerial or “specialized knowl¬edge” capacity with the overseas company. S/he must be transferring to the U S. company to serve in one of these capacities. L-1 visas may be approved for a maximum initial period of three (3) years and may be extended in two (2) two-year increments for executives/managers and one (1) two-year increment for those with specialized knowledge.
What are some other commonly used employment-based visa options?
H-1B Temporary Worker in a Specialty Occupation Visa. This category generally requires the possession of a baccalaureate degree or higher or its equivalent, as a minimum, entry-level credential. It may be approved for a maximum initial period of three (3) years and extended for an additional three (3) years (or longer under certain circumstances). A statutory cap limits annual approval of new H-1B petitions at 65,000, with an additional 20,000 available for individuals with US Master’s degrees or higher. A foreign national already employed in H-1B visa status may start work for a new US employer upon the filing (as opposed to the approval) of an H-1B petition with USCIS by the new employer.
E-1/E-2 Treaty Trader/Treaty Investor Visa. This visa is issued pursuant to bilateral treaties of friendship, commerce and navigation between the United States and various other countries. A national of the treaty country involved may live and work in the United States for an employer sharing his/her nationality in executive, supervisory or essential skills positions. The US company must be at least 50%-owned by a company which is owned by treaty country nationals or at least 50%-directly owned by treaty nationals. Visa holders may be admitted to the United States in E status for up to two (2) years from the date of each admission through the validity of the visa stamp. Visas may be issued in increments of up to five (5) years and are renewable as long as the company and the employee continue to qualify under the E classification requirements.
TN Trade NAFTA Classification. This classification is available to Canadian and Mexican citizens who will engage in certain specific professions on behalf of a US employer. “Business activities at a professional level” generally require that the individual have at least a bachelor degree or appropriate credentials demonstrating status as a professional. Canadian citizens are visa exempt and may apply directly at a Class A port-of-entry, a US airport handling international traffic or a US pre-flight inspection station for admission in TN status. Mexican citizens must obtain a visa stamp (valid for one year) in their passport prior to entering the United States in TN status. The TN category allows for an initial entry of up to three (3) years, with extensions of up to three (3) years available.
What if we want to bring foreign workers to the US for training?
The two primary visa options for training are the H-3 Trainee and J-1 Exchange Visitor Visas. Both permit foreign nationals to come to the United States to participate in a bona fide training program and require maintenance of a foreign residence with no intent to abandon it. The H-3 visa requires participation in a US employer training program for job-related training for work that will be performed outside the United States. The training must not be available in the home country. The J-1 visa requires participation in a program run by a US government-approved designated sponsor organization. Length of stay in the US varies depending on visa classification.
What if we have an employee who needs to install/service machinery sold to a US customer?
Skilled technicians may enter the United States as business visitors pursuant to a B-1 Visitor Visa or the Visa Waiver Program, as applicable, for the purpose of installing, servicing, or repairing commercial or industrial equipment or machinery purchased from a company outside the United States where the contract of sale requires such service. Skilled workers may also enter the US as business visitors to teach US workers or to demonstrate a skill or technique, so long as they are not productively employed.
What if our foreign company’s president or management wants to meet with business prospects in the US?
Entry as a business visitor pursuant to a B-1 Visitor Visa or the Visa Waiver Program may be appropriate. Business visitors often find it useful to obtain a letter from their foreign employer or US host explaining the purpose of their trip, their itinerary and their financial arrangements. It is important to observe, however, the important but elusive distinction between employment, which is not allowed, and doing business on behalf of a foreign employer, which is allowed.
If our foreign company’s president transfers to the US, can s/he obtain a green card?
A multinational manager or executive may qualify for a green card and priority worker status if s/he has been employed outside the US in a managerial or executive capacity for at least one (1) full year out of the three (3) years immediately preceding his/her transfer to the US, and if his/her position in the US will be with a company that qualifies as an affiliate, subsidiary or parent of that employer, and if s/he will continue to serve as a manager or executive.
What is the difference between a temporary work visa and a green card?
A temporary work visa permits a foreign national entry to the US for a finite period. Each nonimmigrant visa has specific requirements that must be met in order for an individual to qualify for admission to the United States. Nonimmigrant employment-based visas are often location- and employerspecific. A green card permits a foreign national to live and work in the United States permanently (provided s/he does not engage in activities which could result in the rescission of the green card (loss of lawful permanent resident status) and deportation from the United States). Green card holders may freely change employers and generally possess the same rights and obligations of US citizens; however, they may not vote, serve on juries, obtain certain US government employment, or hold a US passport.
How long does it take to obtain a nonimmigrant work visa?
Processing times vary depending upon which government agencies are involved and visa availability. Generally though, average processing time is estimated at thirty (30) to sixty (60) days.
Are there any temporary work visa quotas?
There is a statutory cap that limits approval of new H-1B visa petitions for employment with cap-subject organizations in a fiscal year. The fiscal year cap is currently set at 65,000, with an additional 20,000 available for individuals who hold a US Master’s degree or higher. Individuals who will work for cap-exempt organizations (i.e., an institution of higher education, a nonprofit related to or affiliated with an institution of higher education, or a nonprofit research or governmental research organization) are not subject to the cap.
May the spouse and children of a temporary work visa holder be employed in the US?
A spouse present in the United States pursuant to an E-2 or L-2 visa may apply for temporary employment authorization which will enable him/her to work legally in the United States. The H-4 spouses of some H-1B nonimmigrants may be eligible for temporary employment authorization if the H-1B principal has reached a certain stage in the lawful permanent resident (LPR or green card) process. Generally, children are not eligible for employment authorization.
May children of a temporary work visa holder attend school in the US?
Yes. Dependent children under the age of 21 may attend public or private school.
May the cohabiting partner of a temporary work visa holder accompany him/her to the US?
Yes. The partner may qualify for a B-2 visitor visa. The B-2 visa does not enable the partner to work in the US.
Understanding the US Immigration System
Federal Administrative Law
US immigration matters are governed by three separate federal administrative agencies: the US Department of Homeland Security (DHS); the US Department of State (DOS); and the US Department of Labor (DOL). Within DHS, the US Customs and Border Protection (CBP) regulates admission at ports-of entry, the Immigration and Customs Enforcement (ICE) enforces immigration laws within the United States, and the US Citizenship and Immigration Services (USCIS) adjudicates applications for immigration benefits. This bureaucracy often presents challenges to foreign nationals and their employers desiring to successfully navigate the system.
Three (3) Primary US Immigration Categories
- Nonimmigrant visa status permits a foreign national entry to the United States for a finite period. Each nonimmigrant visa has specific requirements that must be met in order for an individual to qualify for admission to the United States. Nonimmigrant employment-based visas are often location and employer-specific.
- Immigrant visa status (or Lawful Permanent Resident “LPR” or “green card” status) permits a foreign national to live and work in the United States permanently, provided s/he does not engage in activities which could result in the rescission of the green card (loss of LPR status) and deportation from the United States. LPRs may freely change employers and generally possess the same rights and obligations of US. citizens; however, they may not vote, serve on juries, obtain certain US government employment, or hold a US passport.
- US Citizenship status may be obtained through the naturalization process by LPRs who can demonstrate good moral character and who have maintained LPR status for a qualifying period of time. Individuals who have obtained LPR status through employment may apply for naturalization once they have maintained LPR status for five (5) years, have been physically present in the United States for at least half of that time, and have not been absent from the United States for a continuous period of six (6) months or more during the five-year period. Individuals who have obtained LPR status through marriage to a US citizen may apply for naturalization if they: are living with the US citizen; have been married to the US citizen for at least three (3) years; have been physically present in the United States for at least 18 months. The US citizen spouse must have held citizenship for at least three (3) years at the time of the naturalization application.
Tips for Employing a Foreign National in the United States
When determining whether to employ a foreign national worker in the United States, it is wise to retain competent US immigration counsel and keep in mind the following tips:
- Make sure the position offered to the employee meets immigration law requirements. Each nonimmigrant or immigrant visa has specific requirements to be met and procedures to be followed. It is important that petitioners understand these requirements and procedures before agreeing to employ a foreign national in the United States.
- Determine a reasonable start date. A common mistake is underestimating the amount of time it may take to obtain the required visa. Some visas afford more immediate work authorization than others, which may carry processing delays. Petitioners should avoid predetermining a US employment “start date” until they have discussed estimated visa processing times with US immigration counsel.
- Understand the short- and long-term immigration benefits available to the foreign national employee and his/her family members. Certain nonimmigrant visas do not permit spouses or children to work in the United States. Other nonimmigrant visas may serve as quicker routes to lawful permanent residence. Womble Bond Dickinson immigration counsel can explain the benefits of each nonimmigrant category and recommend the appropriate one based on the employer and foreign national’s needs.
- The best immigration strategy may not always be the fastest. Employers who rush to obtain a visa for a foreign national employee may, in doing so, fail to select the best immigration strategy for either the company or the employee. For example, US employers who instruct foreign national employees to enter the United States as business visitors when they will in fact be providing services that will accrue to the benefit of the US employer may be risking their employees’ expedited removal from the United States for misrepresentation or fraud. It is always best to apply for and obtain the proper visa for the intended activity rather than to try and circumvent US immigration law.
- Allow immigration counsel to work directly with the foreign national employee. The US immigration process does not have to be difficult. It only becomes so when employer contacts become too entrenched in the process and try to serve as intermediaries. If the employer allows immigration counsel to communicate directly with both the foreign national employee and employer contact, counsel can ensure that the process flows more smoothly, can be less complicated, and can significantly reduce the busy employer contact’s burden.
- Maintain required immigration records to ensure compliance with US immigration laws. Womble Bond Dickinson immigration counsel can advise what records must be maintained for employees for specific visa types and processes so that the employer is prepared in the event of an audit or site visit by DHS or DOL.