Types of Visas
Business Visitors
Citizens of the United Kingdom, along with nationals of many states in Europe, may enter the United States for business as visitors either with a B-1 Visa or without a Visa. Those without a B-1 Visitor Visa may apply for admission to the U.S. for a period of 90 days without a valid, machine readable passport. Since most visits are expected to last 90 days or less, U.S. Consulates abroad issue B-1 (or B-1/B-1) Visitor Visas only upon demonstration of a particular, legitimate need for an anticipated visit to last beyond 90 days. Once the Consulate is satisfied of the need for the Visa, it may be issued with a validity period of up to 10 years with multiple entries permitted during that time.
The laws and regulations of the United States allow business visitors to engage in a wide range of business activities. Acceptable activities include: negotiate contracts, consulting with business associates, calling on customers, i.e. soliciting sales or taking orders for work that will be performed outside the U.S., procuring goods, components, or raw materials for use outside the U.S., participating in conferences, conventions, or seminars, undertaking independent research, participating in litigation, attending board of directors meetings, providing or receiving training, setting up a new business or opening an office (but not managing that business or running the office).
This list is not exclusive. Rather, it is intended to provide illustrative examples. Generally, legitimate business activities should be associated with international trade or commerce and the principal benefit of the activity should accrue to the business person or entity abroad. Where a worker reports regularly to an office or other location in the U.S. on a fixed schedule, however, the U.S. immigration authorities may consider the conduct to be impermissible local employment. A business visitor (with or without a B-1 Visa) may not be placed on a local payroll in any circumstances.
Guidelines used by immigration authorities to distinguish between permissible business activities and unauthorized local employment are vague. They are often restrictively interpreted. When a foreign worker will need to be assigned to perform duties in the U.S. on a regular or extended basis, it is prudent to obtain a Visa that authorizes employment in the United States.
Temporary Employment Visa Categories
The most common Visa categories utilized by foreign workers requiring temporary employment authorization in the U.S. are the Intracompany Transferee (L-1), the Treaty Trader (E-1), the Treaty Investor (E-2), or the Specialty Worker (H-1B), Visa categories. These temporary Visas normally may be obtained in a relatively short period of time ranging from a few days to several weeks. The alternative permanent resident (“green card”) immigration option currently takes well over a year to complete in the best of circumstances. Each temporary Visa category as relative advantages and disadvantages. Not every worker will qualify for each Visa category. There are a variety of other Visas that authorize temporary employment, such as Alien of Extraordinary Ability (O-1), Exchange Visitor Trainee (J-1), Trainee (H-3), and Shortage Worker (H-2B), categories. Each of these, however, has limited applicability for the average worker coming to perform a local assignment in the U.S.
Intracompany Transferees
The Intracompany Transferee (L-1) Visa category may be available to organizations that establish an affiliated company in the U.S. Usually, there must be at least 50% common ownership with the entity abroad but this is not an absolute rule. Employees must have worked for a foreign affiliate outside the U.S. as an executive, manager or employee utilizing specialized knowledge for at least 12 months and must be coming to the U.S. to work in one of these capacities.
A company and its affiliates may qualify for “Blanket L” classification. A company with Blanket L approval may have workers apply directly to the U.S. Consulate for the appropriate Visa by passing the United States Citizenship and Immigration Service (USCIS). This allows it to transfer qualified executive, managerial and specialist personnel to the U.S. while saving both immigration service adjudication time and some of the costs associated with the immigration process.
The L-1 Visa category may not be appropriate for a worker coming to the U.S. to provide labor or services for a company other than his or her employer. This prohibition primarily applies to worker placement firms. These are firms that seek to fill jobs in other companies, typically to deal with labor or skill shortages. Companies providing a service such as engineering or project management, however, may utilize the L-1 Visa category to bring specialists to the U.S. even if the job site of those employees will be located at the offices or facilities of another company.
Foreign workers utilizing the L-1 Visa category may be paid by their L-1 petitioner in the U.S. or they may remain on the payroll of their employer abroad.
Treaty Visas
E-1 or E-2 Visas are available if a company qualifies as a treaty enterprise. Since the UK maintains a qualifying treaty, a company majority owned by British nationals meets the threshold requirement for classification as a Treaty Enterprise. A trader company is one that conducts more than half its business between the U.S. and the treaty country, in this case the UK. An investor enterprise is one that has made “substantial” investments in the U.S. The substantial test applied is proportional to the type of investment being made. Managerial, executive and employees utilizing essential knowledge may qualify for E Visas. Each employee must have British nationality, the same as the owners of the treaty enterprise.
There is no need to apply to treaty trader or investor Visa classification with the USCIS and the United States. A company operatin in the U.S. may apply directly at the U.S. Consulate abroad for treaty enterprise classification. Key employees also may present individual applications directly to the U.S. Consulate to receive an E Visa.
As with the L-1 Visa category, U.S. DOS policy prohibits the use of E Visa category to send foreign workers to the U.S. to fill vacancies in another company due to a shortage of domestic workers or skills. Once again, however, a company engaged in the business of providing a particular service such as project engineering or management may place foreign workers in E-1 or E-2 status on site at a client’s offices or facilities. So long as these workers remain under the direction and control of their E employer and are not merely placed with the client company to fill an open position, they should be considered to be lawfully using the E Visa category.
Foreign workers present in the U.S. in E status may be paid from a U.S. payroll or from an employer abroad.
Specialty Workers
The Specialty Worker (H-1B) Visa category is available for those foreign nationals with at least a four year bachelor’s degree, or equivalent knowledge. The worker must be coming to fill a job which typically requires advanced knowledge. There is no requirement that the alien worker have been employed abroad by an affiliate of the U.S. company. The employer must pay the worker at least the “prevailing wage” in the region where he or she will be employed and comply with other regulatory requirements.
A Visa petition for H-1B classification must be filed with the USCIS in the U.S. for each foreign worker prior to bringing him or her to the U.S. in H-1B status. Once the USCIS approves the petition, a Notice of Action is issued which must be presented by the worker to the U.S. Consulate to obtain the H-1B Visa.
An H-1B petitioner must be a “U.S. employer” with a federal tax payer identification number. The petitioner may be an agent acting on behalf of the overseas company. The petitioner may place workers with another company to fill a local labor or skills shortage. The prohibition on such placement activities for foreign workers using L and E Visas does not apply for those using H-1B Visas. An H-1B petitioner also may send workers to a client’s office or facility to perform services under its direction and control.
There is an annual quota of H-1B Visas. Under present law an aggregate of 85,000 such Visas may be issued each year. These Visas are allocated in the U.S. federal fiscal year which commences October 1. In recent years, the H-1B quota was filled very early in the fiscal year. Availability of these Visas in the future may depend on a variety of factors such as prevailing economic conditions or possible Congressional action to increase the quota. Companies wishing to capture H-1B Visas should file Visa petitions on or after April 1, asking for an October 1 start date.
Government Agency Processing Times
One of the biggest challenges companies encounter is the delay in adjudication of applications by the USCIS or U.S. Consulate abroad. The USCIS can take 2 to 6 months to adjudicate a Visa petition. An expedited 15 day service is available from the USCIS in exchange for payment of $1,000.00 filing fee. Treaty enterprises or those with Blanket L approvals can avoid these costs and delays with E or L Visas since the Visa applications are filed directly to the U.S. Consulate abroad without the need to first obtain USCIS approval.
Each worker must apply for a Visa with a U.S. Consulate. The wait for a Visa appointment at U.S. Consulates caries but may take from 1 to 8 weeks. There is no expedited appointment service available at U.S. Consulates at this time. Accordingly, companies should plan well in advance of any anticipated employee transfer to the U.S. in order to avoid delays in project start dates due to immigration requirements.
Entry in Advance of Employment Visa Approval
In very limited situations, companies experiencing immigration delays may be able to send a worker to the U.S. as a business visitor in advance of obtaining an employment based Visa. This can be a highly risky option. Both immigration authorities in the U.S. and consular offices abroad may take the view that the entry to the U.S. was gained through misrepresentation as to the actual purpose of the trip. If either authority concludes that the worker was really entering the U.S. to begin his assignment prior to obtaining the proper Visa, the worker may be refused the Visa or denied entry upon applying for admission to the U.S. Accordingly if a company needs to send a worker to the U.S. prior to obtaining an employment based Visa, it should carefully document the purpose and intended duration of the trip to demonstrate that it is truly a visit rather than commencement of employment without authorization.
Tags: Business Visitors to the United States, Expatriates, Legal Documents, Mckenzie Drake, Suzanne Carpenter, Temporary Visas, Types of Visas, Visa Types
