By Melissa Azallion and Jonathan Eggert
With the current administration’s strict enforcement of immigration regulations, an understanding of the various work visa options and requirements is vital to plan successful business immigration strategies. Importantly, strict enforcement does not mean visa options are unavailable. Businesses continue to routinely utilize immigration strategies to employ top talent and ensure competitiveness in the marketplace. The key to success in business immigration cases involves creative strategizing and fully understanding the client’s goals and the most appropriate option.
B-1/B-2 – Business Visitor
The Business Visitor Visa is commonly utilized by foreign nationals for short periods in the United States to engage in business activities not rising to the level of “gainful employment.” Business activities include; (1) engaging in commercial transactions not involving gainful employment; (2) negotiating contracts; (3) consulting with business associates or attending company meetings; (4) providing consulting services regarding import or export of goods; (5) installing, repairing or maintaining equipment under a contract; or (6) training workers after a sale of commercial or industrial equipment in certain instances.
Business Visitors can remain in the United States for up to six months per visit. Importantly, Business Visitors may not be paid by the U.S. entity, although they may be paid by a foreign entity. One major advantage to the Business Visitor strategy is the ability to bypass a filing with the United States Citizenship and Immigration Services (USCIS). Applicants simply visit the U.S. Consulate in their home country and apply for the Visitor Visa.
Companies seeking to utilize the visitor classification would be prudent to equip foreign nationals with documentation confirming the purpose of their trip. Such documentation might include an invitation letter or, where appropriate, a contract pursuant to which the foreign national is installing or servicing equipment.
H-1B – Professional
Foreign nationals who work in a position requiring at least a bachelor’s degree in a specific field may be eligible for an H-1B visa. The H-1B visa can be difficult to obtain because the classification is oversubscribed. Congress has capped the number of H-1B visas available each year at 65,000, with an additional 20,000 available for foreign nationals with a U.S. master’s degree. In the past, employers seeking an H-1B for an employee filed their petitions in the first five business days of April. When USCIS received more H-1B applications than available visas, a random lottery was conducted to select petitions for adjudication.
In 2019, USCIS began implementing new rules aimed at enhancing the chance of more highly educated foreign nationals being selected in the H-1B lottery. In prior years, USCIS conducted the master’s degree allocation selection first and added any unselected master’s degree petitions to the regular 65,000 petition selection. Now, USCIS first conducts the regular H-1B cap selection with all master’s degree petitions included. Once the regular H-1B cap selection is complete, USCIS conducts the master’s degree allocation selection. According to immigration officials, the new process significantly increases the chances that individuals with a master’s degree or higher will receive an H-1B visa.
A new registration system may also be on the horizon for H-1B filings in 2020. In prior years, employers were required to prepare a full visa petition, despite the chance that the petition may not be selected in the lottery. The new registration system will allow employers to electronically register for the H-1B lottery during a short registration period by completing an application with basic information about the company, foreign national and position to be filled. The employer would prepare and file a full visa petition only if selected in the lottery. Additional details about the H-1B registration process should be forthcoming.
While the lottery can make it difficult to obtain an H-1B visa, the benefits can be significant. H-1B beneficiaries are eligible for six years in H-1B status, with additional extensions available for those involved in Green Card sponsorship. The H-1B visa also encompasses “dual intent” which provides several advantages to foreign nationals throughout the Green Card process.
L-1 Intracompany Transferee
U.S. companies with a qualifying corporate relationship to a foreign corporate entity can transfer certain workers from the foreign entity to the United States under the L-visa classification. Parent/subsidiary, affiliate and branch offices constitute qualifying corporate relationships for L-visa purposes.
In order to qualify for an L-visa, the employee must have worked for the foreign entity in either a Managerial/Executive role or Specialized Knowledge position for one of the most recent three years and come to the United States to fill a Managerial, Executive or Specialized Knowledge position.
Managers come in two forms: Personnel Managers and Functional Managers. Personnel Managers oversee the work of other supervisory-level or professional employees. Functional Managers oversee all aspects of an essential department, division or function of the company. Executive classification requires a showing that the employee establishes goals and policies of an organization and receives only general supervision from higher-level executives.
An employee will be deemed a Specialized Knowledge Worker if they have special knowledge of the company’s products and their application in the marketplace or an advanced level of knowledge of processes and procedures of the company. Companies with highly complex or technical manufacturing processes often take advantage of the Specialized Knowledge Worker option. A Specialized Knowledge-strategy is also routine for companies seeking to increase efficiency by sending an employee to implement process changes that have been successful abroad.
Certain large multi-national corporations can obtain a “Blanket-L” visa. The Blanket-L is extremely advantageous because it allows most L-visa beneficiaries to apply for a visa directly at the U.S. Consulate rather than obtaining initial USCIS approval. The Blanket-L is particularly advantageous in today’s immigration climate since USCIS has stopped giving deference to prior approvals on extension petitions.
Those coming to the United States as a Specialized Knowledge Worker receive an L-1B visa, are eligible for an initial three-year stay, and can apply for a two-year extension. Managers and executives are issued an L-1A visa. L-1A visa holders receive an initial three-year stay and are eligible for two, two-year extensions.
E-2 Treaty Investor
When a foreign entity or individual invests a substantial amount of money into a U.S. business, the E-2 Treaty Investor visa may be a viable option. At the outset, the E-2 visa requires a qualifying treaty between the United States and the foreign investor’s country of nationality. More than 80 countries currently hold E-2 treaties with the United States.
The E-2 visa criteria require that both the foreign national and the foreign investor have the same nationality. The investment in the U.S. business must also qualify as “substantial.” The definition of “substantial investment” is a sliding scale, but investments of $100,000 or more typically qualify.
The E-2 strategy can be utilized to sponsor either the investor (if any individual) or an employee of the U.S. operation. An individual coming to work as an employee must either serve in a supervisory role (interpreted in a manner similar to that of an L-1A Manager) or possess skills necessary to the operation of the company in the United States.
Similar to the Blanket-L, E-2 applicants have the advantage of bypassing USCIS and applying directly at the U.S. Consulate. E-2 visas can be issued for up to five years and have no maximum number of renewals. E-2 entrants are typically granted a two-year period of admission.
These visa classifications can be useful for a variety of different positions depending upon the facts and timing needed by the client. Before choosing an immigration strategy, it is imperative that employers consider all of the legal and practical advantages and pitfalls to ensure utilization of the best option.