US Work Visa Options

O’Brien and Associates

US Work Visa Options The first of this three-part series examined travel to the US for the business visitor. This second article will explore current US work visa options for businesses and professionals, and how those options may change as a result of US immigration reform.

Intra-company transfer (L-1) visas The L-1 intra-company transfer visa is an extremely important visa category for managers and executives (L-1A), and specialized knowledge workers (L-1B) of foreign companies with a physical presence in the US. The applicant must have worked with the foreign company in this capacity for at least one year in the previous three. The US and foreign companies must be at least 50% commonly owned, and if the company has been trading in the US for at least one year, a visa may be granted for three years. US startups will receive closer scrutiny than established 16 | Silicon Valley Global

businesses; applicants will receive one year only, after which they must undergo the scrutiny (12 months is a short time in business) and expense of applying for an extension. For this reason, start-ups should consider whether they have any other visa options.

Significantly, L-1A managers and executives may also be eligible for permanent residence (‘green card’) under a fast-track category for multinational managers/executives.

In the absence of a clear statutory definition of “specialized knowledge”, the L-1B for specialized knowledge workers is a tough category with inconsistent standards applied

by USCIS adjudicators. L-1B should generally

be considered only for key personnel whose proprietary knowledge of the company’s products and processes can be well documented; other options (if any) should be considered.

The L-1A visa for managers and executives maxes out after seven years (initially three years, with two extensions of two years each), while the L-1B for specialized knowledge workers has a maximum duration of five years (three years initially, with a two year extension).

Families of L-1 visa holders are eligible for L-2 visas, which allow them to accompany the principal applicant to live in the US. An L-1 employee is bound to the sponsoring company, whereas spouses of L-1 employees

O’Brien and Associates

may obtain work authorization to work with any US employer.

E treaty visas E treaty visas are a valuable option for nationals of countries which have relevant treaties with the US, including Ireland and the UK. Nationality of a business is determined by the nationality of its owners, not the place of incorporation of the company. Nationals of the treaty country must own at least 50% of the business.

Eligible employees for E visas are managers, executives or essential skills workers who share the nationality of the company. Unlike the L-1, there is no requirement that the employee has worked with the foreign company, so new hires may qualify. Spouses are not required to share the nationality, and as with L-1 visas, may obtain US employment authorization. E visas may be issued for five years for established businesses or three years otherwise, and are renewable indefinitely so long as conditions of eligibility continue to be met.

E-1 treaty trader visas are available to an individual or business which is trading substantially with the US, i.e., engaged in the frequent exchange of goods or services, including technology. In short, the foreign company must have US-based clients. The E-1 is unusual in that the existence of a US company is not required: at least 50% of a company’s trading revenues must result from trade between the home country and the US however, and incorporation of a US company may be necessary to satisfy this requirement.

E-2 treaty investor visas apply where an individual or business with the requisite nationality has invested, or is in the process of investing substantially in a US business.

No minimum dollar amount is required, but the amount invested must be proportionally substantial to the total cost of either purchasing an established business or creating the business under consideration. The amount will therefore depend on the type of business (think manufacturing vs. services). It is not sufficient to merely transfer funds to a US corporate business account; the funds must be committed.

E visa holders may also benefit from fast track to green card for multinational managers or executives in some cases.

H-1B Visa The H-1B professional visa is for degree holders being sponsored by a US employer for a professional position (one which requires a degree). This is a very heavily regulated visa category and is subject to an annual quota of 65,000 visas worldwide (with an additional 20,000 for advanced degree holders), woefully short of demand. This year the quota was reached within one week of opening on April 1st, leaving a fatal gap in US visa options for many. H-1B visas are issued for three years initially, renewable for an additional three.

Spouses may accompany the H-1B holder, but may not work. There is no fast track to green card for H-1B, though master’s degree holders enjoy some preference.

Immigration Reform The US immigration reform bill was passed by the Senate in July, and is now up for debate in the House of Representatives.

While much media attention has focused on the undocumented, considerable benefits for entrepreneurs and highly skilled workers have received little press. An obsession with stemming the tide (real or imagined) of outsourcing jobs, especially IT jobs, has led to provisions in the bill restricting or prohibiting outplacement of H-1B and L-1B workers, but there are many positives for existing visa categories as well as the introduction of new ones. The Senate bill recognizes the economic benefits of immigration by including provisions that would loosen restrictions on foreign students seeking permanent residence, increase the annual cap on H-1B visas, create 10,500 visas annually for Irish nationals, create a new entrepreneur visa, and increase the overall supply of employment-based green cards.

Broadly, the following provisions of the Senate bill are significant for businesses: • INVEST (Investing in a New Venture, Entrepreneurial Start-ups and Technology) visas – new three year “Start-up Visa” for entrepreneurs who have raised $100K of financing or generated $250K in annual revenue; renewable indefinitely if certain criteria are met. Unlimited number of these visas available.

• 10,000 INVEST green cards made available – requirements for INVEST green cards are

more stringent than for INVEST visas.

• E-3 visas – currently only available to Australian graduates. The Senate bill proposes to broaden this category to include non-graduates as well as graduates; significantly, Ireland will receive a quota of 10,500 visas per year, renewable every two years.

• H-1B professional visa annual quota for bachelor’s degree holders is almost doubled to 110,000 and spouses may obtain employment authorization; advanced degree holders’ quota increased by 5,000 to 25,000 but restricted to STEM (science, technology, engineering, math) graduates.

• A new category of employment based (EB) green card has been added which is meritbased (points system). The bill also favors STEM graduates in many respects.

• The current per country cap on employment based green cards which has led to huge backlogs for populous countries (e.g., India) is removed.

While a comprehensive reform bill faces a tough struggle in the House, it is quite possible that several, smaller bills will be passed, including some of the Senate bill provisions listed above. This may work to the advantage of foreign businesses, as employment-based visa reforms will no longer be tied to the fate of the undocumented.

See our website for the latest news updates as the immigration reform story develops: http:// obrienandassociates.com/u-s-immigration-news/

O’Brien and Associates O’Brien and Associates is an energetic US business immigration law firm providing dedicated personal service to corporate clients, executives, and professionals.

Established in New York City in the late ’90’s, the firm opened an office in Ireland in 2004 to better serve an expanding Irish client base, particularly in the technology sector.

Our client testimonials speak for themselves; for further information please visit our website, www. obrienandassociates.com or contact us to discuss your US visa options.

Silicon Valley Global | 17