U.S. Business-Related Visas for Foreign Nationals
By Aaron N. Wise, Attorney at Law © 2009
• Your U.S. Visa Requirements Should be Part of the Planning Process in Structuring Your U.S. Operation. U.S. visas needed by your key employees to be paid by your U.S. operation can affect the structure of the U.S. operation you are planning or already have in place (e.g., its ownership structure and capital). A non-U.S. national cannot be paid from a U.S. source for services rendered unless he/she has a U.S. visa so permitting.
• Temporary U.S. Visas; Permanent Residence Visa (“Green Card): There are several different types of “temporary” visas available to certain foreign nationals meeting the corresponding requirements, among them (examples only):
B-1 Visitors Visa (and the somewhat similar B-2 Tourist Visa);
L-1 Intra-Company Transferee Visa;
H-1, H-2 or H-3 Visa;
E-1 Treaty Trader Visa;
E-2 Treaty Investor Visa;
O-1 and O-1(a) Visas for athletes and entertainers;
“A” Visa for diplomats.
The permanent residence visa or “green card” is a permanent or “immigrant” visa, whereas the above listed ones are temporary.
Below is a brief summary of most of the above visa types. In any particular situation, the details and specifics of both that situation and the visa type(s) being considered must be closely examined to determine which is appropriate.
• The B-1. With a B-1, a non-U.S. national cannot work for and be paid by any U.S. source. However, he/she can negotiate contracts, consult with business associates, litigate or arbitrate, participate in conventions and seminars, do research, and engage in certain other permitted activities in the States. With a B-1, each U.S. stay will be limited to a short period (6 months is the maximum but may not necessarily be granted for a particular stay). There is a “visa waive program” applicable to nationals of particular countries permitting them to stay in the States for up to 90 days without a B-1 (or B-2 visitors for pleasure) visa. However, holding a B-1 visa can be advantageous in certain circumstances.
• L-1. This visa is for a foreign national “executive”, “manager” or “person of specialized knowledge” (all defined terms in the U.S. immigration law) who has worked for an enterprise outside the U.S.A. for at least 1 year within the past 3 years in one of those capacities and is being transferred to that enterprise’s U.S. subsidiary, branch office or affiliate temporarily in a comparable capacity. With an L-1, the holder can be paid for his/her services by the U.S. sub, branch or affiliate. Extensive documentation is usually required for L-1 applications. The person seeking an L-1 does not have to be a national of the same country as the country in which the foreign enterprise is formed. Thus, the person can be a U.K, French, Brazilian, Swedish, Japanese, Indian, Chinese etc. national and the foreign enterprise, one formed in the another country. The L-1 is tied to the particular U.S. employer (subsidiary, branch or affiliate of the foreign company), meaning that the holder cannot work for another U.S. employer. By filing a special application, the spouse of L-1 visa holder can receive a visa permitting the spouse to work in the USA.
• The “H” Category Visas. 1. The H-1B: Among the requirements, the applicant must have professional level qualifications for a professional level position in the USA. Usually, this means that the position typically requires a baccalaureate (university) degree or an equivalent combination of education and experience. State licensure, if required to practice in that field, is also necessary. Applying for and receiving labor certification from the U.S. Department of Labor is also required for the H-1B. In the application, the employer must attest that wages offered are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or alternatively, pay the prevailing wage for the occupation in the area of intended employment, whichever is greater. Employers are not required to seek and advertise for local talent before—foreign H-1B workers can be hired even when a qualified U.S worker wants the job, and a U.S. worker can be displaced from the job concerned in favor of a foreign worker. The H-1B visa is tied to the particular employer seeking the visa for the individual, meaning that the visa holder cannot work for another U.S. employer. Members of the immediate familiar of the visa holder (spouse and children under 21 years of age) receive H-4 visas but cannot work in the USA. There are annual numerical caps for H-1B visas. The normal duration of H-1B stay is 3 years, extendable to 6 (and possibly beyond under particular circumstances). The H-2: Generally, the H-2 is for non-U.S. national workers or technicians needed to perform specific tasks in the States. One example might be to install and teach other workers of a U.S. company how to operate certain machinery. That U.S. company may pay the H-2 holder for his/her services. As with the H-1B, labor certification is required. The H-3: The H-3 is for an alien coming to the USA to receiving training from a U.S. employer. Stringent requirements must be met.
• E-1 (“Treaty Trader”). The E-1 is only available for nationals of countries that have concluded a particular type of treaty with the USA granting access to it. Thus, one must first determine if the E-1 is available to the particular foreign national. The E-1 is predicated on a company from such a treaty country having a U.S. subsidiary, affiliate or branch (“US Operation”). The individual seeking an E-1 must show that he/she will hold an executive or supervisory position in the US Operation and has the requisite skill for the post. At least 50% of the US Operation’s total volume of trade, which must be “substantial”, must be with the foreign treaty country. Nationals of the treaty country must own at least a 50% of the foreign company (and, if the 50% or more ownership is through one or more legal entities, one looks to the nationality of its or their owners). The individual seeking the visa must be coming to the USA to carry on that business.
Generally, the US Operation will have to have been in operation for about a year. The E-1 holder can be paid for his/her services from the US Operation’s payroll. Spouses of E-1 holders are eligible, by obtaining prior authorization, to work in the USA. There are no quotas for E-1s.
• E-2 (“Treaty Investor”). The E-2 is available only to nationals of a country that has a particular type of treaty with the USA according access to it. As with the E-1, one must first determine if, in the particular situation, the E-2 is available at all. The key for the E-2 is the amount of “capital” the foreign company or individual has invested its US Operation. It must be sufficient for the type of business concerned (no precise amount is specified in the regulations). The applicant can be, but need not be, an owner of the foreign treaty company, but he/she must be employed by it. He/she must be a manager or highly trained or specially qualified employee who is needed to develop and manage the US Operation. As with the E-1 (Treaty Trader) visa, nationals of the foreign treaty country must own at least 50% of the treaty country company. The E-2 holder can be paid for his/her services by the US Operation. Spouses of E-1 holders are eligible, by prior authorization, to work in the USA. No quotas exist for E-2s. E-2s are typically granted for an initial 2 year period; extensions can normally be obtained fairly easily.
• Permanent Resident Visa (“Green Card”). The requirements for a “green card” will not be discussed here for lack of sufficient space. The following points are noteworthy: 1. A foreign national may not be able to obtain a green card straight away. He/she may have to apply for and obtain, as a first step, one of the types of temporary visas described above. Later (but before the temporary visa expires), it may be possible to apply for and obtain a green card. 2. Once a person has a green card, that is not the end of the story: the holder must meet certain criteria (e.g., presence in the USA for minimum periods), failing which it can be revoked. 3. A green card holder becomes a permanent U.S. resident for American income tax purposes. That causes the holder to be taxable in the USA on his/her worldwide income.
• Permanent Resident Visa Based on a Substantial U.S. Investment (Visa EB-5): This is a special type of permanent resident visa. It is for a foreign national that make a major investment in a “new U.S. enterprise”. The new U.S. enterprise can be a newly created one, or the expansion of an existing one, or one resulting from the purchase of an existing U.S. business and its restructuring or reorganization. The applicant must invest at least US$ 1 million in the new U.S. enterprise (US$500,000 in certain exceptional cases). He/she must show a benefit to the U.S. economy and satisfy certain other requirements and criteria regarding employment, new job creation and certain others.