Doing Business in the U.S.: Immigration Considerations for the Foreign-Owned Company
Understanding the U.S. Immigration System: Federal Administrative Law
U.S. immigration matters are governed by three separate federal administrative agencies: the U.S. Department of Homeland Security (DHS); the U.S. Department of State (DOS); and the U.S. Department of Labor (DOL). Within DHS, the U.S. Customs and Border Protection (CBP) regulates admission at ports-of-entry, the Immigration and Customs Enforcement (ICE) enforces immigration laws within the U.S. and the U.S. Citizenship and Immigration Services (CIS) adjudicates applications for immigration benefits. This bureaucracy often presents challenges to foreign nationals and their employers desiring to successfully navigate them.
Three (3) Primary U.S. Immigration Categories
1. Nonimmigrant visa status permits a foreign national entry to the U.S. 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 U.S. Nonimmigrant employment-based visas are often location- and employer-specific.
2. Immigrant visa status (or Lawful Permanent Residence or “green card” status) permits a foreign national to live and work in the U.S. permanently (provided s/he does not engage in activities which could result in the rescission of the green card and deportation from the U.S.). Lawful Permanent Residents (LPRs) may freely change employers and generally possess the same rights and obligations of U.S. citizens; however, they may not vote, serve on juries, obtain certain U.S. government employment, or hold a U.S. passport.
3. U.S. Citizenship status may be obtained through the naturalization process by LPRs who can demonstrate good moral character and who have maintained LPR status for five (5) years, have been physically present in the U.S. for at least half of that time, and have not been absent from the U.S. for a continuous period of six (6) months or more during the five-year period. An LPR who is the spouse of a U.S. citizen with whom s/he has been living for three (3) years may apply for naturalization after three (3) years.
Tips for Employing a Foreign National in the U.S.
When determining whether to employ a foreign national worker in the U.S., it is wise to retain competent U.S. immigration counsel and keep in mind the following tips:
1. 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 to understand these requirements and procedures before agreeing to employ a foreign national in the U.S.
2. Determine a reasonable start date. A common mistake employers make 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. Avoid predetermining a U.S. employment “start date” until you have a grasp of estimated visa processing times.
3. 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 U.S. Other nonimmigrant visas may serve as quicker routes to lawful permanent residence. Still others permit the holder to intend to immigrate to the U.S. Immigration counsel can explain the benefits of each.
4. 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. For example, U.S. employers who instruct foreign national employees to enter the U.S. as business visitors when in fact they will be providing services accruing to the benefit of the employer, may be risking their employees’ expedited removal from the U.S. for misrepresentation or fraud. It is better to wait and collect the proper visa for the intended activity than to try and circumvent U.S. immigration law.
5. Allow immigration counsel to work directly with the foreign national employee. The U.S. 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. When immigration counsel is permitted to communicate directly with both the foreign national employee and employer contact, the process flows more smoothly and can be less complicated, and the busy employer contact’s burden is significantly reduced.
6. Maintain required immigration records to ensure compliance with U.S. immigration laws. U.S. 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.
Frequently Asked Questions
1. We are a foreign company interested in establishing a presence in the U.S. Is there a problem bringing foreign employees to the U.S.?
Probably not. A number of visa options exist under U.S. immigration law. The best option may depend on a number of factors including but not limited to timing, availability, job type, employee education and experience. Prior to establishing a presence in the U.S., certain employees may enter the U.S. as business visitors to explore investment opportunities, attend conferences and seminars, negotiate contracts and disputes, and to observe activities at a related company.
2. Does the type of legal entity established in the U.S. 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 counsel specializing in business formation and related tax issues.
3. 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 U.S. company and must have served for one year within the preceding three years in an executive, managerial or “specialized knowledge” 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 extended in two two-year increments for executives/managers and one two-year increment for those with specialized knowledge.
4. What are some other commonly used employment-based visa options?
The H-1B Temporary Worker in a Specialty Occupation Visa, which generally requires the possession of a baccalaureate degree or higher or its equivalent, as a minimum, entry-level credential and 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. A foreign national already employed in H-1B visa status may start work for a new U.S. employer upon the filing (as opposed to the approval) of an H-1B petition with USCIS by the new employer.
The E-1/E-2 Treaty Trader/Treaty Investor Visa, 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, managerial or essential skills positions. The U.S. 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. Visas may be issued in up to five (5) year increments and are renewable.
The TN Trade NAFTA Classification, available to Canadian and Mexican citizens to engage in certain specific professions on behalf of a U.S. 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. Canadians may apply directly at a Class A port-of-entry, a U.S. airport handling international traffic or a U.S. pre-flight inspection station. Mexicans must obtain a visa stamp in their passport prior to entering the US in TN status. The TN category allows for an initial entry of up to three (3) years, with three (3) year extensions available.
5. What if we want to bring foreign workers to the U.S. for training?
Two primary visa options 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 U.S. employer training program. The J-1 visa requires participation in a U.S. government-designated exchange program. Length of stay in the U.S. varies depending on visa classification.
6. What if we have an employee who needs to install/service machinery sold to a U.S. customer?
Skilled technicians may enter the U.S. as business visitors pursuant to a B-1 Visitor Visa or the Visa Waiver Program, as applicable, for the purpose of installing or repairing machinery sold by their employer within the past year, where the contract of sale requires such service. Skilled workers may also use enter the U.S. as business visitors to teach U.S. workers or to demonstrate a skill or technique, so long as they are not productively employed.
7. What if our foreign company’s president or management wants to meet with business prospects in the U.S.?
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 U.S. 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.
8. If our foreign company’s president transfers to the U.S., 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 U.S. 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 U.S., and if his/her position in the U.S. 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.
9. What is the difference between a temporary work visa and a green card?
A temporary work visa permits a foreign national entry to the U.S. 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 U.S. Nonimmigrant employment-based visas are often location- and employer-specific. A green card permits a foreign national to live and work in the U.S. permanently (provided s/he does not engage in activities which could result in the rescission of the green card and deportation from the U.S.). Green card holders may freely change employers and generally possess the same rights and obligations of U.S. citizens; however, they may not vote, serve on juries, obtain certain U.S. government employment, or hold a U.S. passport.
10. 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.
11. Are their any temporary work visa quotas?
There is a statutory cap that limits approval of new H-1B visa petitions in a fiscal year and the cap is currently set at 65,000.
12. May the spouse and children of a temporary work visa holder be employed in the U.S?
A spouse present in the U.S. pursuant to an E-2 or L-2 visa may apply for temporary employment authorization which will enable him or her to work legally in the U.S. Generally, children are not eligible for such employment authorization.
13. May children of a temporary work visa holder attend school in the U.S.?
Yes. Children under the age of twenty-one may attend public or private school.
14. May the cohabitating partner of a temporary work visa holder accompany him/her to the U.S.?
Yes. The partner may qualify for a B-2 visitor visa; this visa does not enable the partner to work in the U.S.