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Norma Brenne Henning s a graduate of the University of Florida College of Law |
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Introduction to Visa Options for Foreign Business People
By Norma Brenne Henning, Juris Doctor
Civil Law Notary
Honorary Consul to the Federal Republic of Germany in SW Florida
U.S. immigration law offers a variety of visas for business travelers, investors, traders and members of multinational companies. Depending on the country of origin, businesspeople can take advantage of the existence of treaties between the United States and their home country, which allow for visa free entry as visitors or conducting business.
Every visa issuance requires a personal interview and answers to various questions regarding the applicant’s background. Men between the ages of 17 and 45 must also answer questions regarding military service, travel history, specialized knowledge regarding chemical and biological agents, etc. In the past, “yes” answers – for example for scientists and researchers – have caused backlogs in processing. Therefore, proper planning and timely application for whatever visa category is necessary to conduct your business, is essential.
Immigration Law is a Federal body of law. Although the United States is divided into different jurisdictions and requires licensing of attorneys from State to State, the practice of immigration law is not geographically restricted. An immigration lawyer in Florida, therefore, can also help you with questions in any other state of the Union. This article attempts to outline the most common choices of visas to the United States for business people. If you do not find yourself or your employees in any of these categories, please remember that this article does not address all options. This article should also not be construed as legal advice, as each client’s situation is different and may present options or challenges a discussion of which exceed the scope of this article.
Entering the United States as a Visitor
Realistic plans of success hinge on good market research and reliable contacts and partners. Therefore, most business people enter the United States for short-term visits before they make the decision to start or purchase a U.S. entity. The proper entry document for this purpose is a so-called B-1 visa, usually issued as a B-1/B-2 to also allow for pleasure visits. Business travelers from certain so-called “visa waiver countries” (visit http://cbp.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/vwp.xml for a list of these countries) may enter the United States for up to 90 days without this visa as long as their passport meets certain updated biometric requirements. Please consult the passport agency in your home country to make sure that your passport complies with the latest standards. This manner of entry is quick and easy but is limited to a stay of 90 days without the opportunity to extend the stay if the need arises or to change the status to another visa category if the visitor decides to make the stay more permanent. The B-1/B-2 variety offers these possibilities and generally allows entries for up to six months at a time.
Persons who enter without a visa must now complete an on-line registration – via the so-called Electronic System for Travel Authorization (ESTA - see http://cbp.gov/xp/cgov/travel/id_visa/esta/about_esta/esta_intro), which is intended to reduce waiting times at the port of entry. The registration form is available in several different languages and asks the questions that appear on the green form I-94W, which visa waiver travelers filled out on the carrier before arrival. These questions – for example if anyone ever had a visa refused or has been arrested, etc. – are intended to determine eligibility for entry under the visa waiver program. Persons who would answer “yes” to any of these questions are ineligible and must obtain a visa for entry – at which point they can explain the circumstances of the previous visa denial or their youthful transgressions. Although there has been a great deal of controversy regarding this electronic registration system, the fact remains that it makes sense to know whether one is eligible to enter the United States without a visa before scheduling meetings, purchasing a ticket and boarding an airplane. The public at large is also expected to benefit from shorter processing times at the port of entry because officers are now presented with a “prescreened” visa waiver entrant (who presents the authorization printout) and do not have to deal with basic eligibility issues any more.
Activities allowed under B status or under the visa waiver status include the following: Conducting business meetings; visiting clients or suppliers; conducting litigation; negotiating contracts; attending seminars or trade shows. One may not accept employment in the United States or intend to stay permanently.
Business Visas
Once the decision to open a business has been made and the foreign business entity or foreign investor intends to send personnel to the United States on a more permanent basis, a business visa becomes necessary. Under the following categories, an owner or employee may bring his/her immediate family. Spouses are eligible to apply for their own employment authorization – children under 21 can join the family and attend public schools free of charge.
Parents should be aware that once their children are 21 years of age, they are no longer “children” (i.e. immediate relatives) but adult sons and daughters. They can therefore no longer “ride” on their parents’ visa and must switch to another category or leave the United States. Proper planning is therefore essential.
Key to each of these categories is a well thought-out business plan which reasonably projects a healthy future and a benefit to the U.S. economy.
Visas for Multinational Managers and Executives or Specialized Knowledge Employees
If a U.S. company has been formed in such a manner that a qualifying relationship exists to the foreign company, the foreign company may send executives, managers and specialized knowledge employees to the United States in L-1A or L-1B status. These managers, executives or specialized knowledge employees must have at least one year working history with the foreign company in the respective function and come to the U.S. to continue in the function in which they served. The U.S. Company, however, does not have to be in the same business as the foreign company.
Although this visa category is designed for large multinational companies, it also lends itself quite nicely to start-ups and smaller scale business ventures. For startups with less than one year of history, visas are issued for one year. Then, consistent business activities must be shown to obtain an extension for three years. One more term of another three years is possible, then extensions in this category are exhausted. However, an executive or employee may then have other visa options or have adjusted status to permanent resident.
L status is applied for in the United States with USCIS – approvals can be obtained in as short a time as 15 days with “Premium Processing” and an extra $1,000 in application fees. The approval is then carried to the Embassy or Consulate in one’s home country, which issues the visa after making its own background check of the applicant.
Visas for Traders and Investors from Certain Treaty Countries
The United States maintains treaties of navigation and commerce with a number of nations. A list of treaty countries can be found at http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3726.html. E visas require ownership of the U.S. entity of at least 50%, managerial control and either substantial trade or a substantial investment (there are no hard numbers) that generates U.S. jobs. They are issued for a term of no more than five years at a time (the stronger the application, the longer the term granted) and allow for entry into the U.S. for two years every time the visa is used during its validity. Extensions are possible as long as the requirements continue to be met. One major advantage of this visa is the ability to bring any qualified home country national in as a manager without having to show a work history with a related foreign employer. The long duration also presents an advantage.
E Visas are applied for directly at the Embassies or Consulate in the treaty country. The Consular officers decide the merits of the case as well as admissibility of the visa beneficiary. Processing times vary greatly from Consulate to Consulate depending on workload and staffing. It is therefore important to check with the Consulate ahead of time to make sure that a visa can be issued before commencement of the activity that requires it.
E-1 visas for traders: Treaty country applicants who can show that their U.S. entities conduct “substantial trade” in goods or services between their home countries and the United States are eligible to apply for an E-1 Treaty Trader Visa. Substantiality of trade is measured by examining the value and the frequency of the transactions into the country. At least 50% of the U.S. entity’s trade must be with the home country. Trade must also be existent and documented (i.e. one should have already sent some goods to the U.S. and be able to show contracts or customs declarations) at the time of application. Trade in services includes consulting work of all kinds as long as it is “substantial”.
E-2 visas for investors: Applicants in this category must show a “substantial investment” into a U.S. business, which generates a genuine impact in the U.S. economy. The substantiality of the investment is relative to the business enterprise. (I.e. a small carpentry business requires less startup capital than a manufacturing facility) Investments can be made in the form of cash, equipment or inventory but must be traceable back to treaty country nationals.
Other Options for business people:
Other visas exist for persons with documented outstanding achievements in the field of business; professionals and seasonal workers. Each has its own unique set of requirements and characteristics. All of the following also require approval from USCIS before a visa can be obtained at the home consulate:
O-1 for persons with documented outstanding achievement:
An applicant, who can demonstrate prominence and outstanding achievement in his/her field of endeavor – including business – is eligible to apply for an O-1 visa. This visa would allow the applicant to work in the United States for an employer or to self-sponsor and start his/her own business. Outstanding achievement must be demonstrated by showing a high level of notoriety; respect of one’s peers; serving in a critical role for an organization or institution of high repute; command of high remuneration, etc. A person meeting these strict prerequisites can also apply for permanent residence based on the same criteria. However, the application process is lengthy, and the O-1 visa would provide the opportunity to come to the United States much faster.
H-1B Visas for Professionals:
Persons with an educational background equivalent to a U.S. bachelor’s degree or more are eligible to apply for H-1B visas. Educational evaluation services will assist an applicant in determining the equivalence of a foreign degree to that of a U.S. degree. Documented work experience in the field of specialization can taken into account for these purposes as well.
H-1B visas are currently numerically restricted to 65,000 new applicants annually. Applications can be submitted at the earliest on April1 for a starting date at the beginning of the new fiscal year – the next October 1. In the last few years, the visa category closed very quickly due to the high volume of applications received within the first two days of April. Applicants were subjected to a lottery with a 50/50 chance of acceptance. Chances that immigration reform will result in a lifting of the numerical limitation depend on unemployment in the U.S. and an understanding that an employer’s ability to hire skilled professionals in the U.S. often results in less outsourcing to other countries. Positions at certain nonprofit organizations or educational institutions are not subject to the numerical limitations. Additional visas are available to persons with Master’s Degrees.
An application which makes it through the lottery has to show that the employer is offering the foreign employee the “prevailing wage” – a determination made by the U.S. Labor Department. The job also has to be posted for all other employees to see and the employer has to demonstrate that hiring the foreign professional will not adversely affect U.S. workers. This serves to avoid undercutting of U.S. wages and working conditions. The employer also has to show that the position into which the professional is hired actually requires a university degree. When the foreign hire has a Master’s Degree and wishes to take advantage of this additional criterion, the employer has to pay a much higher prevailing wage and must show that a Master’s Degree is necessary for the intended position.
H-2 Visas for Seasonal Employees
Employers may also wish to hedge off seasonal worker demands by offering positions to seasonal workers. The agricultural and hospitality fields are prime examples. For these visas, employers have to show that they cannot find U.S. employees. Numerical limitations exist for the Summer and Winter seasons. Timely filing is therefore essential.
Permanent Residence Based on Employment:
Once a U.S. business entity has been established, the investor or employer often wishes to obtain permanent residence for him or herself or for certain key personnel. This often ensures continuity, which is essential for the long-term success of the business.
General Employee Options: Depending on the employer’s need for certain skills and the U.S. job market’s ability to satisfy this need, visas are available for foreign workers. A process called “Labor Certification” allows an employer to get a certain position certified as available to a foreign worker. If a foreign worker then meets the employer’s requirements, he/she can apply for permanent residence. An employee’s educational background determines the applicable wait times before such an application can be made. In most cases, the employee is already in the United States in nonimmigrant status and then waits to adjust this status to permanent residence when the priority date becomes current.
As with the nonimmigrant visas, spouses and children under 21 years of age are eligible to join the primary applicant.
Exceptions to the Labor Certification Process for Executives or Investors:
Under prerequisites almost identical to the L-1A visa and if the U.S. entity has grown to a size that requires an executive, a transferred executive can apply for permanent residence based on the classification as a multinational executive – one of the exceptions for the longer process called “Labor Certification”. This exception under the EB-1 category also applies to outstanding researchers, business people, artists, athletes, etc., who do not have to show continued employment for a qualifying multinational entity.
Investor “green cards” also exist under the EB-5 preference category which requires an investment of between $500,000 to $1 million depending on the geographic location. Each investor has to document the creation of at least ten new positions or the preservation of at least ten positions that would have been lost but for the investment. Workers must be U.S. citizens, lawful permanent residents or have U.S. employment authorization.
Norma Brenne Henning, J.D.
Henning Law Firm, P.A.
Attorney at Law / Civil Law Notary
Honorary Consul to the Federal Republic of Germany
5621 Strand Boulevard, Suite 105
Naples, FL 34109
Tel (239) 596.6020 Fax (239) 596.6051
www.henning-law.com www.germany.info