Doing Business in the U.S. - Visa Considerations by @USVisaExpert

Doing Business in the U.S. - Visa Considerations

Deirdre Oâ&#x20AC;&#x2122;Brien Attorney at Law

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Doing Business in the U.S. - Visa Considerations

Deirdre Oâ&#x20AC;&#x2122;Brien Attorney at Law

1 DOING BUSINESS IN THE U.S. - VISA CONSIDERATIONS Deirdre O’Brien

Introduction US immigration laws are complex, highly regulated and constantly changing, making only general treatment of the topic possible here. In a general sense therefore, this booklet covers options available to executives and professionals desiring to work and live in the US and explores common pitfalls and widespread myths about US immigration rules and practice. The topics are treated in a sequence which generally mirrors the needs of companies and their employees as interests and business in the US develop. Initially, the Visa Waiver Program – allowing visa-free travel to the US but necessitating online registration through ESTA – may be suitable for infrequent and short trips though in some cases a B-1 business visitor visa is advisable from the outset. Visa waiver and B-1 visas don’t permit work however, and as US operations develop and business increases, it is often necessary to have management and specialist employees on the ground. Where possible, it’s best to plan the whole journey from the outset rather than waiting until the need is imminent. An holistic approach to important aspects of a company’s venture into the US, like incorporation, taxation and visas, is advisable. These interconnected issues are best decided together so options are maximised and doors are opened rather than closed. Take proper advice and steps to address your company’s immigration needs. Finally, when immigration limbo is a thing of the distant past, some people may wish to remain indefinitely or permanently in the US and pursue permanent residence (‘green card’) if possible.

Visa Waiver Program and B1/B2 visitors for business/pleasure The ability to transact business internationally with minimum restriction is vitally important and key company personnel must have the flexibility to travel abroad to conduct business affairs at short notice. The Visa Waiver Program (VWP) allows nationals of certain countries, including Ireland and the UK to travel to the US visa-free, as visitors for business or pleasure, for up to 90 days. For a list of VW countries, see http://travel.state.gov/content/visas/english/visit/visa-waiver-program.html#countries. It is advisable to avoid risking refusal under visa waiver at all costs, because one refusal means a lifetime ban on ever using visa waiver again. The B visa – B-1 for business and B-2 for pleasure – is identical to visa waiver in terms of eligibility criteria and permissible activity, but requires attendance at a US embassy for interview and facilitates stays beyond 90 days at a time. Anyone who has been refused entry to the US on visa waiver must apply to their nearest US embassy for a B-1/B-2 visa. Nationals of many countries, including Ireland and the UK, are eligible for multiple entry 10 year B visas – each entry may be granted for up to six months. The B-2 visa is available for tourists, common law partners in some instances and for certain kinds of medical treatment. Our concern is with visa waiver for business and the B-1 visa for business.

Eligibility Factors and Allowable Business Activity for Visa Waiver (Business) and B-1 Visa

There is a presumption on the part of consular and immigration officials that every applicant for a US visa intends to permanently remain in the US – a presumption of ‘immigrant intent’ which the applicant must rebut. Why might a person be refused admission on visa waiver? Where 6 months or more, cumulatively, was spent in the US during the last 12 months, denial is almost certain. The Department of State is concerned about the so called “revolving door problem”, whereby visa waiver travellers use the program as a means to create residency by leaving and returning frequently. If the records show frequent and lengthy trips to the US you may be closely questioned. There are only so many meetings you can attend after all, and the question arises, what are you doing the rest of the time? If you don’t know what you can and can’t do as a

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business visitor, you won’t inspire confidence and an immigration official may err on the side of caution and refuse entry. It is easier to list the activities which are allowed than to define what constitutes “employment” in violation of B status, because decisions on the latter are conflicting and fact driven. In any event, business that is not employment is permitted and includes: • • • • • •

engaging in activities appropriate to a member of a board of directors of a US corporation, (directive rather than executive) conducting litigation negotiating contracts consulting with business associates participating in scientific, educational, professional or business conventions, conferences or seminars, or undertaking independent research

Investors seeking an investment in the US which would qualify them for Treaty Investor classification (E-2 visa) may enter as B-1 visitors, as long as they do not perform productive labour or actively participate in the management of the business prior to being granted an E-2 visa. Regarding activities prohibited for B visa holders, clearly local labour for hire is prohibited. What is not so clear, however, is what business activities cross the permitted line, as very similar cases have been decided very differently. A Hong Kong tailor who entered the US to measure customers was granted a B-1 visa, while a Canadian engineer who travelled to the US to consult with clients was denied a B-1 visa. Each case will turn on its own facts but answering the following questions in the affirmative will assist an immigration official to make a favourable decision: • • • • • • •

are the businessperson’s activities directed by a foreign employer? are profits from the business activity accruing abroad? are services rendered in the US incidental to international trade or contracts (e.g., exchange of merchandise)? is there is an after-sales service agreement in place? are there various US entries of a plainly temporary nature? are the services being performed not ones for which a US worker would have to be hired, not inherently part of the US labour market and not primarily benefiting the US entity as local work? is the source of remuneration abroad?

In all cases it is important to have documentary evidence with regard to the planned activity and ties outside the US. Department of Homeland Security (DHS) has implemented the Electronic System for Travel Authorization (ESTA), which is a fully automated, electronic system for screening passengers before they begin travel to the United States under the Visa Waiver Program. ESTA applications may be submitted at any time prior to travel to the United States and authorization is granted for 2 years generally. Visa waiver travellers are encouraged to apply for authorization as soon as they begin to plan a trip to the US. See https://esta.cbp.dhs.gov/esta/ Finally, frequent travellers may apply for security pre-screening to speed up the process of clearing security at certain airports: http://www.tsa.gov/tsa-precheck

3 DOING BUSINESS IN THE U.S. - VISA CONSIDERATIONS Deirdre O’Brien

Non-immigrant visas – Temporary Stay US companies seeking to employ foreign nationals temporarily in the US may choose from several non-immigrant classifications. There are over sixty types of non-immigrant visa for entry into the US, but the L, E, and H visas are the most common for international business personnel and professionals. Foreign companies who have not yet incorporated in the US will need to do so for most categories. ‘Non-immigrant’ means ‘temporary’, and refers to intention as much as period of stay; most of these visas are issued for several years.

The L-1 visa

This is an intra-company transfer visa available to managers, executives and specialized knowledge workers being transferred to a US subsidiary or branch of a foreign company. The employee must have worked in one of these capacities with the non-US company for at least one year within the previous three years. He/she may be eligible for an L-1A visa to perform managerial or executive duties for the company in the US, or an L-1B visa to perform duties requiring specialized knowledge. It is necessary to incorporate in the US and establish physical premises in order to transfer staff on an L-1 visa, and while Immigration Service in the US (USCIS) will grant L-1 visas to new companies and start-ups in certain circumstances, any foreign company which has not been doing business in the US for one year or more is subject to closer scrutiny than an established business. In addition, new company employees are eligible for an L-1 visa for 1 year only, as compared with the usual initial 3 year term for employees of US companies who have been trading for more than 1 year. The one-year L-1 visa is renewable for the usual term, once USCIS is satisfied the business is viable, but this involves the company in extensive documentary evidence and the expense and uncertainty of an extension application one year later; 12 months can be a short time in business. (See E visas as a potential alternative for start-ups). In practise, the L-1 is a difficult category for start-ups and L-1B is a particularly tough category, even for established companies – the applicant’s specialized knowledge must be extremely compelling and well documented to succeed. (See E visas as a potential alternative for specialized knowledge/essential skills workers.) Where there is eligibility, the L-1 visa is a desirable category for at least two reasons: the L-1A is a fast track to a ‘green card’ for certain multinational managers and executives; and spouses of L-1’s may obtain employment authorization. A major advantage for multinational manager/executive green cards is that it’s not necessary to obtain certification from the US Department of Labor (a process known as PERM) to show there are no US citizens qualified and available for the job; this rather artificial system entails advertising the position and making recruitment efforts and is extremely highly regulated, expensive, protracted and uncertain in outcome. Another significant advantage for multinational managers/executives is that visas in this category are current, meaning immediately available whereas other categories are seriously backlogged. With regard to processing, Immigration Service offers an expedited processing service known as premium processing, in return for payment of an additional $1,225 filing fee. This guarantees a response from USCIS within 2 weeks of filing the petition, either a decision or a request for further evidence. Otherwise, determination of a petition can take several months, during which the worker obviously cannot commence employment. If matters are planned well in advance, it may be possible to avoid payment of the premium processing fee but most employers will need to opt for expedited service. The L-1 visa is a ‘dual intent’ visa, meaning an L-1 visa holder may apply for lawful permanent residence (green card) without jeopardizing his/her temporary L-1 visa. L-1A visas are granted for a max of 7 years (initial 3 years + 2 x 2 year extensions) while L-1B maxes out at 5 years (initial 3 years + 1 x 2 year extension).

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E Treaty Trader and Treaty Investor visas

E visas are issued pursuant to bilateral treaties of friendship, commerce or investment between the US and other countries, including Ireland and the UK. The nationality of a business is determined by the nationality of its owners, not the place of incorporation, and nationals of the treaty country must own at least 50% of the business in question. E visa applicants must share the nationality of the company and be employed in a managerial or executive capacity or must be an essential skills employee. E-1 Treaty Trader visas are available to foreign companies engaged in “substantial trade” with the US meaning regular and frequent trade in goods or services (including technology) which accounts for more than 50% of the company’s trading revenues. E-2 (Treaty Investor) visas require the foreign company to make a “substantial investment” in the US or be in the process of so doing. “Substantial investment” is not defined by a minimum dollar amount; the investment must be proportionally substantial when weighing the amount spent on the US enterprise against the total value of the business, or the usual amount required to acquire or start a similar business. In practise, a minimum dollar amount of at least 100,000 is required by most embassies around the world. As with L-1’s, the spouses of E visa holders are eligible for work authorization. Despite the fact that E visas are single and not dual intent visas, it may still be possible for eligible individuals to fast track to a ‘green card’ for international manager/executive in certain cases. E visas are issued for a period of five years or less but renewable indefinitely so long as conditions of eligibility continue to be met. Regarding processing, E visas are generally processed by the US embassy in the home country and not by Immigration Service in the US. Consular or embassy processing is generally more predictable than USCIS processing and there are no filing fees. Turnaround times will vary depending on the particular embassy, time of year, etc., but are generally reasonable. In short, the E visa category has many advantages over the L-1, particularly for start-ups.

The H-1B visa

This is a professional visa for foreign degree holders being sponsored by a US employer for a professional position. Both the job and the employee must be professional. For those who do not have a university degree, work experience may be combined with educational credentials for a 4-year US degree equivalency in the relevant field. US credentials evaluation services will evaluate foreign qualifications for this purpose, and it is accepted by Immigration Service that three years of relevant experience equals one year of US university for H-1B purposes. This equivalency rule proves extremely useful for individuals who left college early without that important piece of paper, but whose training and work experience include the practical application of specialized knowledge required of professionals. A complete lack of third level qualifications, however, may be difficult to overcome. The H-1B visa is subject to an annual cap of 65,000 worldwide (6,800 of these are allocated to Chile and Singapore) with an additional 20,000 for US master’s degree holders. In the past (with the exception of the downturn years of 2009-2012) this quota has been woefully short of demand. Perhaps H-1B visa uptake should be viewed as an economic indicator as in recent years, the quota is so oversubscribed that applications go into a lottery system in order to qualify for processing. The quota becomes available on April 1 each year, 6 months ahead of the permissible work start date of October 1. The H-1B visa quota system sends all involved into a spin in the lead up to April 1 every year. It is a big investment with no certainty of return but if you’re not in, you can’t win; inevitably, many are frustrated when they don’t make the cut. The US Immigration Reform Bill which was passed by the Senate in June 2013 (though still not passed into law) proposes almost doubling the H-1B bachelor’s degree quota to 110,000 and increasing the number available to master’s degree holders (but restricted to STEM graduates only) to 25,000. There is also a proposal to broaden the E-3 visa category (currently restricted to Australian degree holders) to include non-graduates as well as graduates; Ireland would receive a quota of 10,500 visas per year, renewable every 2 years. Importantly, spouses of H-1B visa holders (H-4 visas) would be eligible to work; currently H-4 spouses (unlike L and E spouses) are not eligible for work authorization.

5 DOING BUSINESS IN THE U.S. - VISA CONSIDERATIONS Deirdre O’Brien

I visa

This visa is available to representatives of foreign press, radio, film, or other foreign information media. Spouses of I visa holders are not eligible for employment authorization.

O-1 visa

The O-1 visa is for aliens of extraordinary ability in the sciences, arts, education, business, or athletics. It is a useful alternative in appropriate cases where a business person does not qualify for an H, L or E and it is helpful in some cases to business people lacking professional degrees. The standard for “extraordinary” is very high, however, and the successful applicant’s extraordinary ability must be demonstrated by sustained national or international acclaim. Spouses of O-1 visa holders are not eligible for employment authorization.

Note on Filing Fees: The topic of filing fees is always of interest to business people and USCIS filing fees are quite considerable for non-immigrant visas – filing fees for expedited processing of an L-1 are $2,050 and for an H-1B petition by an employer with less than 26 employees, filing fees are $2,800. Additional filing fees have been imposed in recent years to fund increased security measures and appease anti-immigration lobbyists. Of course, this also has a freezing effect on the hiring of foreign workers. Sometimes, however, local labour will not fill the need, whatever the reasons, and planning immigration issues in advance will usually save money and increase options. Treaty Trader and Treaty Investor (E-1/2) visas may be a good long-term economic strategy for some companies, as petitions are processed by the Department of State (US Embassy) which does not charge filing fees. Once the US company is registered as a Treaty Trader or Treaty Investor with the embassy, eligible employees may qualify for E visas, again a much more economical process than applying for L-1 or H-1B visas on a case by case basis, particularly as requests for further evidence are common and drive up costs. E visas also have the advantage of not requiring prior service with the company abroad (as required for L-1 visas) and not being subject to a quota (as with H-1B visas). Employees must share the nationality of the company, however.

Visas for Students and Trainees The J- 1 visa for trainees and interns and permitted optional practical training for F and M visa classifications for academic/vocational students may provide alternatives in certain circumstances for US employers wishing to hire foreign workers. Since October 2008, Irish graduates have enjoyed access to a 12 month J-1 Intern Work and Travel (IWT) visa to allow them to intern and travel in the US. It was introduced as a reciprocal 5 year pilot exchange program which was extended in 2013. See http://dublin.usembassy.gov/general/twelve-month-intern-work-and-travel-pilot-program.html The J-1 trainee visa is an interesting possibility for foreign nationals who might not fit other categories. Most people will associate the J visa with students but there is also a J-1 cultural exchange visa available to certain individuals who wish to enter the US temporarily to train in their chosen career or profession, with a view to returning to the home country and applying skills acquired while in the US. In order to be approved, the applicant needs a US training offer in the relevant field for a period of up to eighteen months (up to 12 months in the hospitality industry except for management positions) and a training program must be approved by an umbrella organization designated by US Department of State as a J program sponsor for this purpose. The J-1 training visa is available to professionals and highly skilled and paid individuals as well as young workers beginning their careers, and is worthy of consideration when other options are limited or unavailable.

Students

Students on F and M visas may provide an easy fit in certain circumstances, because these students are permitted to engage in practical training in the US, following completion of their US educational programs.

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F-1 visas are available to foreign nationals qualified to pursue a full time course of study in the US. There are strict regulations governing foreign student programs at all levels following the events of 9/11. What may be of interest to employers is that F-1 students are permitted to engage in one year of practical training after every new program at a higher academic level (plus an additional 17 months for Science, Technology, Math or Engineering (STEM) graduates who are employed by an employer registered with the “E-Verify” federal employment verification system). This means that many entry level graduates are available to work for one year or more, without having to obtain an additional visa. M-1 visas are similar to the F-1 category, but M-1 visas are for vocational rather than academic courses and practical training is limited to six months.

US Immigration Reform Although Immigration Reform is a political hot potato and has been stalled by Congress since the passage of the Senate Bill in June 2013, it is widely anticipated that some business provisions of the Bill will finally be enacted. All eyes are on proposals for a new Start-up Visa and a new green card category for certain entrepreneurs as well as the H-1B and E-3 visa provisions referred to earlier. Whatever shape US immigration reform takes in future, it is likely to be good news for doing business in the US.

Conclusion It is perhaps fitting to conclude with a warning note. Foreign business people wishing to transact business and/or work in the US often procrastinate when it comes to establishing a presence and dealing with immigration issues, even when they have US clients and the American market is key to the success of their enterprise. Considering the benefits which can be derived from doing business in the US and the serious consequences of infringement of US immigration regulations, the importance of proper advance planning cannot be over-stated. It is important to know what’s permitted for business visitors in the shorter term and what US work visa options are available for longer term planning. For more materials on this topic, see: http://obrienandassociates.com/u-s-immigration-resources/

Deirdre O’Brien is the founder of O’Brien & Associates, a US business immigration law firm with offices in Kilkenny, Ireland and New York City. The firm offers personal service to a broad range of domestic and international clients in fields such as technology, telecommunications, publishing, new media, healthcare and pharmaceuticals, as well as artists and people of extraordinary ability in business, science and athletics. After graduating from Trinity College Dublin, Deirdre worked as a solicitor in Ireland and London before moving to New York, where she founded O’Brien & Associates in 1997. The firm opened an office in Kilkenny in 2004 to better serve an increasing number of top Irish companies availing of its services. Publications in which Deirdre has been featured include the New York Law Journal, the Irish Law Society Gazette, the Sunday Business Post and the Irish Times. She was consultant for the critically acclaimed book, The Girl’s Guide to Starting Your Own Business (Harper Collins, 2003) and regularly appears in print media, television and radio, providing commentary on US immigration and related topics. Organizations of which Deirdre is a member include the American Immigration Lawyers Association, the New York Bar Association, the Irish International Business Network (IIBN), the Irish American Bar Association of New York, the Irish Exporters Association, the Irish Law Society, it@cork, and TCD Alumni Association.