Immigration & the U.S. Visa System

By Alice E. DeTora and Megan Naughton
Robinson & Cole LLP

Many companies wish to establish an American office or need to bring foreign workers into the United States.

The two types of visas available to address a company’s needs in the U.S. are nonimmigrant visas for temporary stays and immigrant visas (green cards) for permanent residence.

A nonimmigrant visa allows temporary residence in the U.S. to qualified “intracompany transferees” who are managers, executives or “persons with specialized knowledge” as well as to certain professionals and to citizens of countries that have trade treaties with the U.S.

An immigrant visa grants permanent residence to, among others, certain executives and managers, outstanding professors and researchers, and individuals “with extraordinary abilities” in business, the arts, the sciences, education or athletics.

There is another important means to obtain immigrant visas. Permanent resident status can be obtained by a business person who (i) can invest $1 million in a new U.S. business and can create ten new jobs in that business or (ii) can invest $1 million in a troubled U.S. business and save existing jobs.

The spouse and children of holders of such visas may also obtain visas of their own if they plan to accompany the visa holder or join the visa holder in the U.S. at a later date.

TEMPORARY (NONIMMIGRANT VISAS)

Temporary visas are frequently used by businesses to employ professionals in the U.S. for a brief period. The most common of these visas are the B-1 for business visitors, the L-1 for intracompany transferees and the H-1B for specialty occupations.

There are also special visas available for citizens of Canada and Mexico under the North American Free Trade Agreement (NAFTA) and for citizens of other countries that have treaties of navigation and commerce with the U.S.

B-1 Business Visitor Visa

The B-1 visa is available to persons for brief business trips to the U.S. A B-1 visa holder must maintain a residence outside of the U.S. and receive compensation from a foreign employer; he or she cannot be paid a salary or otherwise receive compensation from a U.S. employer.

There also are limitations as to the types of business activities that legitimately can be conducted on a B visa.

A business visitor will be granted a visa only for a period of time necessary to conduct his or her business. Most such visits are approved for less than three months, although longer stays may be possible in certain circumstances.

A B-2 tourist visa, generally valid for six months, is available for those who will not be working or studying in the U.S.

Citizens of certain countries, including most western European countries, are not required to obtain B-1/B-2 visas for business or pleasure visits that are less than 90 days.

However, persons who come to the U.S. under this “visa waiver” program cannot obtain extensions of stay beyond the 90 days.

L-1 Intracompany Transferees

L-1 visas are used for the intracompany transfer of managers, executives and persons with “specialized knowledge.” The transfer of individuals qualifying in this category can be obtained relatively quickly and easily, usually within 30-60 days after the filing of a petition with the Immigration and Naturalization Service.

Prior to coming to the U.S. as an L-1 nonimmigrant, an individual must have worked abroad for a parent, subsidiary, branch or affiliate of the U.S. employer. The individual must have been employed abroad with the related company for at least one of the three years preceding the transfer.

Of particular interest to international accounting firms is the inclusion of those firms as qualifying organizations for the purpose of L-1 transfers. Prior to 1991, international accounting firms that had informal affiliations were unable to qualify for this category.

The definition of “manager” includes employees who manage a function, component or department of an organization, as well as those who manage people.

“Specialized knowledge” for an L-1 visa means specific knowledge of the company’s product and its application in international markets or an advanced level of knowledge about the processes and procedures of the company.

These broad definitions make it easier for businesses to bring qualified individuals to the U.S. as L-1 nonimmigrants.

An L-1 managerial or executive transferee may stay for a maximum period of seven years. A “specialized knowledge” transferee may stay for a maximum of five years, but if promoted to a managerial or executive position within a certain time frame, the transferee can file a new L-1 petition and stay for an additional two years.

L-1 visas may also be used to transfer employees to a new U.S. office. The maximum initial period of stay in a new office situation is one year, although extensions of stay are possible if both the new U.S. office and the foreign office remain in operation beyond one year.

H-1B Specialty Occupation Visas

An H-1B visa is available to individuals “coming to perform services in a specialty occupation.” The definition of “specialty occupation” generally corresponds with the concept of a professional. Occupations such as engineers, accountants, lawyers, scientists, librarians, financial analysts, systems analysts, architects, teachers, journalists, management consultants and market research analysts are likely to meet the definition.

A bachelor’s degree (or higher) in the specific occupational specialty is usually required, although an employee who lacks the required degree may be able to establish that he or she has the equivalent of such a degree by virtue of specialized training or experience.

There are more procedural requirements for an H-1B visa than for other temporary visas. Specifically, before an employer may file an H-1B petition, the employer must first submit a labor condition application (LCA) to the Department of Labor.

In applying, the employer must certify that the individual will be paid the higher of either the actual wage being paid to the employer’s other similarly employed workers or the prevailing wage for the position. The employer must also certify that the hiring of the individual will not affect the working conditions of similarly employed workers.

In addition, the employer needs to provide notice, either in the workplace or to the appropriate union representative, if any, that an LCA was filed. The LCA requirement imposes record-keeping obligations on the employer and increases the time and expense for obtaining an H-1B visa.

There is also a burden placed upon employers who dismiss an individual, for whatever reason, during the authorized H-1B period. The employer is required to pay the reasonable costs of return transportation to that person’s last place of residence outside the U.S.

An individual who comes to the U.S. as an H-1B worker is not required to maintain a residence outside of the U.S. during his or her authorized H-1B stay. The maximum period of stay for an individual in the H-1B category is six years.

There is an annual limit on the number of workers who can be granted H-1B status by the INS. There is also a special fee charged to employers, in addition to the regular INS filing fee, which must accompany most H-1B petitions. Effective December 17, 2000, this additional fee is $1,000.

The law also requires employers to offer benefits and eligibility for benefits to H-1B workers on the same basis and in accordance with the same criteria as those benefits are offered to U.S. workers. It prohibits an employer from requiring an H-1B worker to pay a “penalty” for resigning before a date agreed upon between the worker and the employer.

Furthermore, it requires an employer who designates an H-1B worker as “full time” in the petition to pay that worker full-time wages, regardless of any nonproductive time due to, for example, lack of work, lack of a required license or discretion of the employer. Periods of leave requested by the H-1B worker are not covered by this provision.

In certain circumstances, H-1B “dependent” employers and employers that have committed willful violations will be required to make new attestations on future LCAs.

The law increases the penalties for certain violations of the H-1B regulations and LCAs. The act also prohibits an employer from threatening, discharging or in any other manner discriminating or retaliating against an employee because the employee has disclosed information which he or she reasonably believes to be a violation of the law or because the employee cooperates in an investigation concerning the employer’s compliance with the law.

TN Visas for Canadian and Mexican Citizens

A special TN (Trade NAFTA) visa is available for citizens of Canada and Mexico who are coming to the U.S. to work in certain professional occupations that are specified in the NAFTA.

These occupations include accountants, engineers, scientists, physicians, therapists, teachers, computer systems analysts, technical publications writers, graphic designers and management consultants; a bachelor’s degree (or its Canadian or Mexican equivalent) is required in most cases.

Although similar to H-1B visas, TN visas have not completely replaced H-1B visas for Canadians and Mexicans. TN visas are strictly limited to those who meet the educational and occupational requirements listed in the NAFTA; a person who might not qualify for a TN visa may still be able to qualify for an H-1B visa.

Also, as the H-1B visa allows for a greater initial period of stay than a TN visa (three years opposed to one), some people may find the H-1B visa preferable.

Although a TN visa is valid for only one year, it can be extended in one-year increments with no outside limit on the total period of stay.

A Canadian or Mexican professional who has reached the maximum time limit on stay in another nonimmigrant status (i.e., H-1B or L-1) can qualify for TN status (if the individual is in an occupation listed in the NAFTA) and continue his or her stay.

There are some procedural differences between Canadian and Mexican applicants for TN status. Mexican applicants are subject to the same requirements as professionals applying for H-1B status including the LCA requirement and Immigration and Naturalization Service (INS) petition procedures.

Canadians can apply for TN status at the port of entry, usually without advance notice; however, if the individual plans to fly from Canada to the U.S., advance notice or an appointment may be required.

E Visas for Treaty Traders and Investors

An E-1 “treaty trader” or E-2 “treaty investor” visa is available to those who are citizens of countries that have treaties of navigation and commerce or bilateral investment treaties with the U.S.

To utilize the E category, the company or the individual engaging in trade or investment in the U.S. must have the same nationality as the treaty country; the “nationality” of a company for this purpose is the nationality of those persons who own at least 50 percent of the stock of the corporation.

In order to qualify as a treaty trader (E-1), the company must engage in substantial trade, and the trade must be principally between the U.S. and the treaty country.

The employee or principal coming to work in the U.S. must be either a manager or executive or engage in work requiring skills essential to the successful operation of the enterprise.

To qualify for the E-2 investor visa, an active, substantial investment in an active commercial enterprise is required.

There is no minimum dollar amount required for an investment to be considered substantial, but the investment generally must be significant in proportion to the total value of the enterprise in question or must be an amount normally considered necessary to establish an enterprise of the type contemplated.

In most cases, the investment should create job opportunities for U.S. workers. The person for whom treaty investor status is sought must fill a key role in the company, either as the investor who will develop and direct the investment or as a qualified manager or specially trained employee necessary for the development of the investment.

Although the initial period of stay in the E category is only one year, this period can be extended almost indefinitely, as long as the individual affirms that he or she will leave the U.S. when the period of authorized stay ends.

PERMANENT (IMMIGRANT) VISAS

There are now 140,000 immigrant visas available annually for employment-related immigration. These employment-based immigrant visas are allocated among five visa categories, four of which are key to business immigration.

Priority Workers

The first preference category is for “priority workers” and offers a relatively rapid means to obtain permanent resident status for qualifying individuals.

Priority workers include certain multinational executives and managers, outstanding professors and researchers of international recognition, and individuals with extraordinary ability in business, the arts, science, education or athletics.

There are 40,000 visas allocated to this category, plus any “spilldown” visas which are allocated to, but unused by, certain other categories. This allocation should be more than sufficient to keep visas currently available to those who meet the requirements.

An additional benefit is the fact that labor certification, which is a time-consuming and expensive process, is not required for a priority worker.

In order to qualify as a multinational executive or manager, the individual must have been employed abroad by a parent, subsidiary, branch or affiliate of the U.S.-based business in a managerial or executive capacity for at least one of the three years preceding his or her request for entry and must be moving to the U.S. to assume a managerial or executive position.

Individuals who are not multinational executives or managers may still be able to qualify in this category as individuals with extraordinary ability.

However, it is considerably more difficult to qualify on this basis because individuals must provide extensive documentation to show sustained national or international acclaim in their field.

Although “outstanding professors and researchers” are most commonly employed by academic institutions, other organizations that employ at least three persons full-time in research positions may be able to utilize this category.

Professionals with Advanced Degrees

Individuals who do not qualify as priority workers may be able to work in the U.S. under the second employment-based preference category as professionals with advanced degrees or as individuals possessing exceptional ability in the arts, science or business.

To qualify in this category, an individual must possess at least a master’s degree or the equivalent or show by extensive documentation that he or she possesses “exceptional ability” that will “substantially benefit” the U.S.

The disadvantage of using this category is the requirement, with few exceptions, that a labor certification first be filed and approved by the Department of Labor.

The basic purpose of a labor certification is to establish that there are no qualified U.S. workers who are available, willing and able to fill the position being offered to the foreign worker. As stated above, the labor certification process is very expensive and time-consuming for employers; it may take years to complete.

The good news is that 40,000 visas are allocated to this category, which means visas should be currently available for citizens of most countries at all times.

Other Professionals, Skilled, and Unskilled Workers

The third employment-based preference category includes professionals, skilled and unskilled workers. Professionals include individuals who hold bachelor’s degrees and who are members of a recognized profession. A skilled worker is one who will perform a job that requires at least two years of training or experience.

There are 40,000 visas allocated to this category but only 10,000 of these visas are available to those who qualify as unskilled workers. Because more individuals qualify for this category, visas may not always be immediately available, which means an additional delay in obtaining permanent resident status.

Further, this category requires a labor certification which, as noted above, is a costly and burdensome procedure.

Investors

In addition, up to 10,000 visas are available to individuals who invest in new U.S. enterprises that create at least ten full-time jobs for U.S. workers or who invest in troubled U.S. businesses and save existing jobs. The intent of this provision of the immigration laws is to generate additional employment opportunities for U.S. workers.

The amount of the investment required is usually at least $1 million, but this figure may vary from $500,000 in targeted rural areas or urban areas of high unemployment to $3 million in areas of high employment.

Of the 10,000 visas per year allocated to this category, 3,000 are set aside for investors in high unemployment areas. To qualify for an immigrant visa, the investor must be engaged in the management of the enterprise either through day-to-day managerial control or through policy formulation.

Qualifying investors will be admitted to the U.S. as conditional permanent residents for the first two years, after which time they will have to petition the Immigration and Naturalization Service to have that conditional status removed and receive their permanent status.

The foregoing discussion highlights only the visa categories most commonly used in connection with employment.

Many other provisions of the immigration laws deal with religious workers, nurses, artists, performers, athletes, student workers, government officials, family members and aliens with extraordinary ability who come to the U.S. for a specific event.