Business Immigration Law
Securing U.S. work visas has become increasingly complex over the past few years. Today, the amount of information required when applying both at the embassy and through the immigration service (USCIS) is often overwhelming.
It is essential to understand that in the instance of business immigration, typically a US company must serve as the sponsor for the visa. Chances of securing the visa are much improved if the company is properly organized/incorporated well before the visa petition is filed. We provide essential assistance to companies in setting up their businesses in the US with an eye to successful immigration applications. For more information on this, please visit our corporate law page.
When establishing a company in the United States, you will need to spend significant time in the country to oversee the setup, secure clients, and develop the business. As a result, a US work visa may be needed. Any activities that may be construed as productive work while inside the United States require work authorization. It is crucial to confer with an immigration attorney to determine whether your proposed activities will require a visa.
Immigration concerns in setting up your US operations. to secure a work visa sponsored by the US entity, The U.S. Department of Homeland Security (DHS) requires proof that the sponsoring company can support an employee on a work visa. This includes having a US company formed and a U.S. bank account established, as well as expenditures and an office lease.
We advise clients regarding U.S. immigration strategy by simplifying visas for temporary and permanent employment in the U.S. We carefully prepare and file visa petitions with both the U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (through Embassies abroad), and have successfully handled hundreds of both temporary non-immigrant work visa petitions and permanent residence visa petitions.
Types of Visas
When deciding which visa to apply for, it is important for companies to consider which visa would work best for their specific circumstances. The most common visas companies seek include:
E-1 Treaty Trader Visa
This visa is available to companies that conduct “substantial and recurring” import or export trade between the United States and a country with whom the US has an E-1 treaty. The E-1 visa allows foreign nationals to enter the United States for the purpose of directing and developing import/export trade between the U.S. and the treaty country. Workers who are essential to the enterprise may also enter on the E-1 visa. All E-1 candidates must share the same nationality as the primary ownership of the foreign and US companies.
E-2 Treaty Investor Visa
The E-2 Treaty Investor visa is based on an investment made in a US entity by the foreign company seeking to transfer a manager, executive or other employee having “essential skills.” There is no specific minimum investment level that must be shown. However, our rule of thumb is around $100,000 should have been invested from abroad and spent on the US business at the time the visa petition is filed. As with the E-1 visa, the US entity must be at least 50% owned by individuals who share treaty nationality with the visa applicant, either directly or through a foreign parent company.
To be eligible for H-1B status, foreign nationals must possess at least a U.S. bachelor’s degree or its equivalent. Additionally, the foreign national must be applying to work in a “specialty” occupation position. The job will generally be considered a specialty occupation position if it requires a bachelor’s degree or higher in a related field or it is so complex that only an individual with a degree could perform the occupation satisfactorily. Finally, the employee must be paid at least the prevailing wage for the position as determined by the Department of Labor (DOL). The H-1B employer must first file a Labor Condition Application (LCA) with the DOL and then the H-1B petition with USCIS. Initial H-1B status can be requested for up to three years. Subsequently, H-1B workers can apply to renew their status for an additional three years, for a sum total of six consecutive years. Currently, due to a shortage of H-1B visa numbers (only 185,000 total per year), H-1B petitions must be filed on April 1 for an October 1 start date.
L-1A Intracompany Transferee Visa
The L-1A Intra-Company Transferee Visa is intended for managers or executives who have been employed abroad (outside the United States) for a continuous period of at least one out of the past three years and who are intended to fill a similar managerial or executive position in the USA for a company affiliated with the foreign employer. Affiliation can mean several things; however, a rule of thumb is that the foreign affiliate should have majority ownership and control over the USA operation.
One of the advantages of the L-1A visa is that it provides the optimal platform for later seeking a permanent resident visa (green card).
L-1B Visa Intracompany Transferee Visa
The L-1B Intracompany Transferee Visa is intended for individuals who have specialized knowledge and who have been employed abroad (outside the United States) for a continuous period of at least one out of the past three years. Proving to the immigration authorities’ satisfaction that a candidate has “specialized knowledge” has become increasingly difficult over the past 5-10 years. It must be established that the candidate is highly skilled and experienced in proprietary techniques or equipment, and has training that would not be available to most Americans.
ESTA/Visa Waiver Program
The Visa Waiver Program (VWP) is administered by DHS and enables eligible citizens of designated countries to travel to the U.S. for tourism or business purposes for stays of up to 90 days without first obtaining a visa. The Electronic System for Travel Authorization (ESTA) is an automated system that assists in determining eligibility to travel to the U.S. under the Visa Waiver Program (VWP). Upon completion of an ESTA application, a traveler is notified of his or her eligibility to travel under the VWP. Please note that an approved ESTA is not a visa.
Although travel may be available on ESTA/VWP, in some instances securing a B-1 visa may be advantageous. A key distinction between the B-1 visa and the ESTA is that the individuals on the B-1 visa may remain in the US for periods of up to six months at a time, rather than the 90-day maximum allowed on the ESTA. Moreover, when entering the US, the Immigration Officer at the airport will be relieved to see that the person has already disclosed who they are, where they work and the purpose of their visit to the US to the US Consulate abroad. The foreign Consulate will have already approved them as candidates for entry which significantly reduces the risk that the individual is questioned at the airport and ultimately denied entry.
Although the B-1 visa may be obtained by the visa candidates themselves, we recommend that you consider utilizing our services to increase the likelihood of success, as we have had hundreds of these applications approved. Please note that in the event the B-1 visa application is denied, the candidate will no longer be allowed to enter the US on the ESTA Visa Waiver Program. Moreover, in the event a work visa petition is filed at some later date, the immigration service may review what had been represented previously in the B-1 application. In the event that there are any inconsistencies in the representations that are made, it would jeopardize the later filed work authorization visa petition.
Travel Considerations During COVID-19
Effective January 26, 2021 all airline passengers to the United States ages two years and older must provide a negative COVID-19 viral test taken within three calendar days of travel. Alternatively, travelers to the U.S. may provide documentation from a licensed health care provider of having recovered from COVID-19 in the 90 days preceding travel.
National Interest Exception (NIE):
In accordance with the latest Presidential order, passed on January 26, 2021, the entry into the US, as immigrants and nonimmigrants, of noncitizens who were physically present within the Schengen Area, the United Kingdom, Ireland, Brazil, China, Iran and South Africa, remains suspended.
However, certain individuals may apply through their local U.S. Embassy for an exception to this restriction, known as a National Interest Exception (NIE). The NIE request, if approved by the Embassy, allows certain foreign nationals who already hold current visas or valid ESTAs to enter the U.S.
To secure a National Interest Exception (NIE) for an entry to the US, one must show that an American company has an urgent and critical need for the individual to be inside the United States as soon as possible, and also that the company is engaged in work essential to U.S. interests such as national infrastructure, national security, work in the medical field, recovery of the U.S. economy, and so on. Our firm has already secured multiple NIEs for a wide array of clients in different fields.
Currently, existing NIEs will be valid for 12 months from the date of approval and for multiple entries, as long as they are used for the purpose under which they were granted. This means that those with NIEs less than a year old can now use them for multiple entries into the US in connection with the same projects.
In addition to the NIE option listed above, individuals subject to certain travel restrictions may elect to travel to a country not subject to the same limitations. After remaining in the third-party country for 14 days, individuals may then enter the US on their valid ESTA or current visa. There are numerous countries in the Caribbean that some of our clients have opted to visit for 14 days before entering the US.
Many of these islands are currently not accepting US citizens, however, other foreign citizens may be allowed entrance, with several requirements. Please see below link for each country’s requirements.
Most of these islands require:
- A negative COVID-19 test (PCR and/or serology) within 72 hours before traveling.
- A sworn statement that the passenger(s) have no symptoms and that they are not aware of having been in contact with a confirmed case of COVID-19 in the 14 days preceding the flight.
- Health screening procedures in airports.
- Temperature check and health assessment upon arrival.
Of course, there are no certainties, and these restrictions can change from one day to the next, so please be sure to verify prior to travel.