Business and Employment in the United States

We live in the age of globalization. Very often, people can offer the benefits of their business ventures or professional services to a much wider range of customers than domestic markets. Companies grow, generating higher profits and creating additional jobs. Consequently, the need to open subsidiaries and hire additional workforce emerges. The U.S. market has historically been one of the most attractive places for foreign companies, entrepreneurs, and professionals.  

 

U.S. immigration laws are very favorable to people who are eager and ready to use their resources, knowledge, skills, and abilities for the development of the country’s economy. The laws allow foreign companies to open subsidiaries in the U.S. and relocate their own personnel here for work. U.S.-based companies are also free to utilize professional services of foreign nationals and can bring those nationals to the U.S. under a number of different immigration categories.

 

Companies who seek to bring foreign employees to the United States most commonly use the following visa categories: B-1 (a visa waiver program for some qualified individuals), H1-B, E, O, P, TN, and L. After initially obtaining a temporary non-immigrant visa in one of these categories, if a foreign national has the right combination of skills, education, work experience and is otherwise eligible, later he or she may be able to obtain permanent resident status (a Green Card) in the United States. Every year, U.S. Citizenship and Immigration Services issues approximately 140,000 immigrant visas to aliens, their spouses, and children who seek to immigrate to the United States based on their professional skills.

 

Let’s review the basic requirements for these various visas:

 

B-1 Visa: This is a business visitor’s visa that enables a business traveler to visit and stay in the United States for a short period of time, usually up to six months, with possibility to extend that stay for the same consecutive periods of time. It does not grant employment authorization in the United States, meaning that the foreign national cannot receive salary and look for a job in the U.S. The purpose of this visa is to allow foreign businesspeople and their employees to come to the U.S. temporarily in order to promote their business, gauge the market, solicit sales from U.S. customers and businesses, negotiate contracts, and attend business meetings and conferences.

 

Visa Waiver Program: This is a substitution for the B-1 visa for the citizens of most European countries, Japan, and certain other countries that may be qualified to enter the United States for a period of ninety days without applying and receiving a B-1 visa. The requirements to the business travelers under Visa Waiver Program are the same as to the B-1 holders. They cannot receive compensation or seek employment in the United States. Foreign nationals entering the United States under the Visa Waiver Program qualifications must depart by the expiration of this ninety-day period, and no extensions of stay are granted.

 

H1-B Visa: This visa is available to individuals coming to the United States to be employed by a U.S.-based company in a specialty occupation or profession. Specialty occupations include those that require the services of a professional with either a university degree or special skills obtained through training and work experience. H-1B visas are issued for an initial period of three years and may be extended for additional three years, for a maximum consecutive period of six years. The holders of H-1B visas may be eligible to apply for a permanent residence in the United States, provided their employers attest that they need the services of those aliens for a longer period than just a few years. It is important to note that a sponsored employee will continue to be an employee at will, meaning that an employer can fire him or her anytime, at the employer’s sole discretion. The termination of employment may influence the employee’s immigration process, but the immigration procedures cannot restrict the employer in its right to hire or fire the employee.

 

Employers sponsoring H-1B aliens for immigration must obtain approval from the U.S. Department of Labor, certifying that the employment of that particular foreign national will not adversely affect the U.S. labor market and that the employer is financially capable to pay the prevailing wage to that foreign employee. The labor certification procedure may be waived if the foreign national can establish that he or she will be doing something significant and useful to U.S. national interests. For example, an entrepreneur might be able to demonstrate that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States. Physical therapists, professional nurses, and persons of extraordinary ability are exempt from the labor certificate procedure as well because they possess professional skills that are useful and needed in the country. 

 

E Visa: The United States has treaties with many foreign countries providing that, in order to promote international trade, if a U.S. company conducts substantial trade with a particular foreign country, it can employ and bring to the United States the executives, managers, and other individuals who hold essential skills from that foreign country under the E-1 visa category. A trade is considered substantial when there are regular numerous transactions over a period of time, as opposed to several random transactions, and the income derived is enough to support the treaty trader.

 

If a foreign company or individual invests or is in the process of actively investing substantial capital in the U.S. enterprise, they are considered treaty investors and can come to the United States themselves or bring their employees to direct the operations of that enterprise. A substantial amount of capital is not measured by numbers; rather, it is an amount that meets the following three criteria:

· It is substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of a new enterprise that are being considered;

· it is sufficient to ensure the treaty investor’s financial commitment to the enterprise’s success; and

· it is objectively enough to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

 

E visas are generally issued in increments of up to five years. They can be reissued indefinitely, as long as the investment or trade and nationality requirements for eligibility continue to be met. The holders of E visas are eligible to apply for a permanent residence in the United States. E-1 and E-2 holders (if they received this status as employees of a company investor, not as individual investors themselves) are required to be sponsored by their employers similar to H1-B visa holders.

 

There is an EB-5 immigrant category for foreign investors that allows for self-sponsorship. This category is reserved for individuals, who wish to reside permanently in the United States with the intent of creating or developing a business enterprise in the U.S. The required amount of investment per each individual investor is $1 million or $500,000 (if the investment is made in a targeted employment area) in a new commercial enterprise that employs at least 10 full-time U.S. workers or in an existing commercial enterprise that requires said investment for further development and creation of 10 additional employment positions for U.S. workers.  

 

O-1 Visa: This is available to aliens with exceptional ability in science, arts, education, athletics, or business. To obtain O-1 classification, an alien must establish that he or she has achieved national or international acclaim. An O-1 petition may be approved for an initial period of three years, and extensions may be granted in one-year increments. Aliens with exceptional ability usually need employment sponsorship for immigration purposes. Aliens with extraordinary ability, however, do not need an employment sponsorship and can be self-sponsored, as mentioned above in the discussion of labor certification requirements for certain professional immigrants. An alien of extraordinary ability must demonstrate that he or she has risen to the very top among all other members of his or her professional field and that his or her achievements have been recognized and sustained national or international acclaim. The alien of exceptional ability, on the other hand, must only demonstrate that his or her professional qualities are above those possessed by an average professional in his or her field, but those qualities do not necessarily have to place the alien among the very few individuals at the top of the relative profession. 

 

P Visa: The P visa is available for internationally recognized athletes or entertainers. It allows artists and athletes to come to the United States temporarily to perform in their professional capacity, individually or as part of a group, under a reciprocal exchange program between an organization in the United States and an organization in another country. The difference between a P visa and an O visa is that to obtain a P visa the foreign nationals do not have to demonstrate the possession of any exceptional ability; they only have to show that they are members of the above professions and are coming to the U.S. with the purpose of participating in a certain cultural exchange program. P visa itself cannot serve as a basis for immigration, but a foreign national can apply for a permanent status under any other category if he or she can satisfy the particular requirements of that category.

 

TN or NAFTA Visa: This permits citizens of Canada and Mexico to work in the United States in certain specialty occupations that are listed in the North American Free Trade Agreement (NAFTA) Sec. 214 (e)(2). Some examples are lawyers, accountants, and engineers. TN visas are granted for three years for the initial period of stay and may be extended in three-year increments indefinitely. This type of visa allows Canadian and Mexican professionals to enter and stay in the United States with the purpose of practicing in their field without first obtaining employment in the country, as is usually required for all other nationals.

 

L-1 Visa: This is an intracompany transferee visa and enables a foreign company to transfer its employees from one of its foreign offices to its office in the United States if such office already exists or to send an employee to the U.S. to establish a new office for the company. This visa category is available for managers, executives, and individuals with specialized knowledge of the foreign company’s business or products, those who have worked for that foreign company at least one year within the preceding three years.

 

L-1 visas can be issued to two categories of foreign workers: 1) to aliens coming to the United States to perform services in a managerial capacity and 2) to those coming to perform services that require specialized knowledge related to that particular company. A person is considered to be in a managerial capacity, when he or she is authorized to make managerial decisions on behalf of the company. A person is considered to posses a specialized knowledge if he or she knows the specifications of the foreign company’s product, service, research, equipment, techniques, management, or other interests or has an advanced level of knowledge or expertise in the employing organization’s processes and procedures. This visa does not cover non-essential, foreign employees, such as supporting staff. The reason is that easily substituted workers may be freely hired in the United States, and there is no need for a foreign company to bring them from oversees.

 

The companies can also assist qualified employees in obtaining permanent legal residency (otherwise known as a green card) in the United States. Please review Employment-based Immigration section on this site for the list of the available programs.

 

Business and employment non-immigrant and immigrant applications are not very straightforward due to the multitude and diversity of legal requirements both to the companies and to the individual beneficiaries. Also the periods of time USCIS review and approval of each application may take as well as financial expenses that may be required vary greatly. Therefore, the assistance of an experienced immigration counsel is of paramount importance. It is strongly advised to obtain a comprehensive initial consultation before making any plans. It will save you a great deal of time, money, and effort.

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