Business Travelers and Temporary Workers
Business travel is “work” … but not necessarily for visa purposes. Certain activities by foreign nationals on behalf of a foreign employer or the exploration of investment opportunities can be accomplished on ESTA or with a B-1 Business Visa , as they strengthen international business ties and encourage foreign direct investment. Likewise, professional athletes are generally permitted to compete and collect prize money because this enhances world class US competitions.
Anything beyond that, however, requires permission to work in the United States, and for that, one needs the proper visa. Keep in mind that immigration laws are generally intended to protect a country’s workforce from the unregulated influx of people, who would take their jobs or drive down wages. The same applies to the United States where the law therefore includes restrictions and favors activities that create jobs and contribute needed skills or talents that benefit the country. (These discussions are outside of work authorization for people applying for humanitarian relief.) U.S. employers who want to sponsor foreign workers for temporary or permanent employment bear the burden to show that the American workforce is not being disadvantaged. Foreign-owned U.S. employers or multinationals enjoy a bit more latitude in sending managerial, executive or specialized knowledge employees to the U.S.
Visas with Employment Authorization
The choice of the right visa depends on the employee’s qualifications, citizenship and background as well as the ownership of the company … and often the plans of ownership. A foreign-owned company looking for investors in the U.S. may not want their management in the U.S. on a visa that requires majority foreign ownership. Companies using treaty trader or investor registrations may not be able to send employees whose citizenship does not match that of the owners’ … or may not want to disclose the owners’ citizenship. Questions of corporate and employment law as well as privacy and taxation play into the best strategic choice for you and your company.
Some popular visa categories are explained below in plain English with links to further information:
Nonimmigrant Treaty Traders and Investors
The E classification is a great choice for companies at least 50% owned and controlled by nationals of certain treaty countries who wish to send nationals of the same countries to the U.S. temporarily as investors/traders, executives, managers or essential skills employees. This is perhaps the most flexible visa category, and decisions are made directly at the U.S. Consulate. A strong business plan is essential. Once a company is registered at the Consulate, additional employees can apply for visas in a comparatively quick and unbureaucratic manner.
The E-1 category applies to companies engaged in the international exchange of goods, services or technology. No investment is necessary. Trade must exist in the form of commitments from customers at the time of first application and grow to be ‘substantial’ over time.
The E-2 category, on the other hand, requires a ‘substantial investment’ that is ‘at risk.’ There is no minimum, and even smaller amounts can qualify if the company will make an impact in the economy. To discourage the formation of small businesses that compete with Americans in the gig economy, the category requires that the income generated must be more than to just make a living for the investor.
Intra-Company Transfers
Multinational companies not eligible for E treatment often choose the L category to send employees to the United States in executive, managerial or specialized skills positions. Nationality is not important here, but a qualifying relationship must exist between the foreign originating company and the U.S. employer. Transferred employees must have been in a qualifying position for at least one year out of the preceding three years before their transfer to the United States.
Initial classification is made upon application to USCIS and can be applied for as soon as premises have been secured. After USCIS approval, employees apply for their visas at the U.S. consulate in their home countries. Although this category is created for employees, it also works well to the transfer of owners or partners whose eligibility is not tied to nationality of a treaty country.
Please note: Although the choice of initial non-immigrant classification is immaterial for future green card eligibility, the prerequisites for this category also track the prerequisites for one of the preference categories for permanent residence for international managers and executives.
Aliens of Extraordinary Ability
Nicknamed the “Einstein Visa,” O-1 Category is for Aliens of Extraordinary Ability in the Arts, Athletics, Academics or Business. Although the receipt of an internationally renowned award or prize (such as an Oscar, a Nobel Prize or Olympic Gold) it does not hurt, an applicant does one have to be a national or international celebrity to qualify. Various categories of evidence lend themselves to a different ways of showing that an applicant is outstanding in his field.
This is by far my favorite visa choice for companies who want to engage the services of or cooperate with persons who have risen to the top of their profession. Cooperation can take many forms, and there is no specific wage requirement.
If desired, qualifying individuals interested in U.S. permanent residence may also have a direct way to apply for such classification without being tied to a petitioner/employer and without the requirement to test the labor market. The O visa is a great first step for people who want to contribute their extraordinary talent or experience to the United States.
For the successful introverts among you: This is no time to be shy about your accomplishments.
Permanent Workers – Green Cards
Employment-based permanent residence is divided into many categories which are based on the United States’ desire to supplement the U.S. labor market with needed workers and also to attract persons who are considered to be stimulating to the economy.
Through a process called “Labor Certification,” employers who wish to hire professionals or skilled workers, must prove that no qualified U.S. workers applied for an advertised position. Once a labor certification is issued, the desired employee can apply for the position and eventually be granted permanent residence. This Labor Certification Process can be avoided by employers hiring Outstanding Researchers and Multinational Executives in the EB-1 category or either of the two categories below.
Petitioning without an Employer and without Test of the Labor Market:
Self-petitioning is possible for Aliens of Extraordinary Ability in the arts, athletics, sciences or business. Successful applicants also have to demonstrate that they will continue to work in their field in the United States.
Self-petitioning is also possible for applicants with ‘exceptional ability’ and members of the professions with advanced degrees (minimum Post Graduate Degree) who can qualify for a National Interest Waiver. This waiver application must demonstrate that the applicant’s work is addressing an important national interest of the United States.
Immigrant Investors – the EB-5 category This category is a great choice for those in a position to directly invest the required amount (currently still $1 Million or $500,000 in rural or targeted employment areas (TEA)) in a new or failing enterprise and create or save ten direct jobs for U.S. workers. Please also see “Play in the USA” for a brief discussion of the current state (or non-state) of the EB-5 Regional Center program.
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KIND WORDS FROM MY LOVELY CLIENTS
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