United States Visa Options for Foreign Businesses

Fall 2013 Article

UNITED STATES VISA OPTIONS FOR FOREIGN BUSINESSES

Foreign enterprises conducting business in the US often have the necessity to send their managerial or technical personnel to the United States. These travels may be short trips to attend a trade show or to meet with commercial partners, or may also result in extended periods of stay during which the transferred employees work in the US. In all of these cases, the appropriate visa is always necessary.

Following is a brief description of some of the visa options available to foreign travelers coming to the United States on business or for work purposes.

As an initial caveat, it is important to bear in mind that obtaining a visa to the US is not just a matter of filling out a form and paying the corresponding fee. On the contrary, it is an administrative process which requires submission of accurate and complete information to the United States Citizenship and Immigration Services (USCIS) or to the consular post, depending on the type of visa, and passing an interview. Also, applications are scrutinized by immigration officers and/or consular personnel, and each case is unique. As a result there is no guarantee that a visa will be approved.

Visa Waiver Program and B-1 visa

Business visitors from certain countries, including Italy, can travel to the United States without a visa, under the Visa Waiver Program (VWP), for up to ninety days. Before traveling under the VWP, the foreign visitor must first obtain an Electronic System Travel Authorization (ESTA), which is generally valid for two years, by applying on https://esta.cbp.dhs.gov/. When travels become frequent and close together in time the traveler should carry a letter of explanation from the employer, describing the purpose and the duration of the travel. For visits exceeding 90 days, a B-1 visa is required. Travelers may apply for a B-1 visa directly at the US Consulate abroad. B-1 visas are generally issued for a period of ten years: however, this does not mean that the traveler may remain in the US for ten years without leaving the country. The U.S. immigration inspector at the port of entry in the United States is the one making the ultimate decision about the duration of the traveler's stay. The maximum total amount of time permitted in B-1 status on any one trip is generally one year.

L-1 (intracompany transferee) visa

The L-1 visa allows foreign companies to transfer their employees who have been employed abroad for at least one year in a managerial or executive or specialized knowledge capacity to a US parent, subsidiary or affiliate company, to be employed in a position requiring managerial or executive capacity (L-1A) or specialized knowledge (L-1B). The two companies must have and maintain a qualifying relationship throughout the duration of the visa: generally, this is defined as majority ownership and control of one by the other, or majority ownership of both companies by a common parent company. An L-1 visa has an initial validity period of three years and may be extended to a total of five years for L-1B employees and seven years for L-1A employees. When the company in the US has been in business for less than one year, is still at a start-up level, and does not have the structure necessary to meet the requirements of the L-1 visa, it is still possible to apply under the "new office" exception, which requires additional paperwork. In this case the initial L-1 is granted for a period of one year, and must then be renewed. L-1 employees can remain on the Italian company's payroll or be on the US payroll. L-1 visas have the so-called dual intent, because although they are non-immigrant visas (meaning that they are only issued for a limited time and do not allow indefinite stay in the US), it is possible to apply for and obtain permanent residence (green card). Also, spouses and unmarried children under the age of 21 of the principal visa holder can obtain derivative visas: the children can go to school on their derivative visas, while the spouses may apply for a work authorization to seek employment in the United States.

This type of visa can only be obtained when there is a qualifying relationship between the foreign company and the US company. It is a valid option for those who later on wish to pursue permanent residence.

E-1 or E-2

The E visa classification is available to nationals of certain countries with which the United States maintains a treaty of commerce and navigation (Italy is one of those). In particular, these foreign nationals may obtain an E-1 or E-2 visa to engage in international trade or in connection with the investment of a substantial amount of capital in a business in the United States. The E-1 visa is for treaty traders who carry on substantial trade principally between the United States and the treaty country which qualified the treaty trader for E-1 classification. On the other hand, the E-2 visa is for treaty investors who have invested, or are actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States. At least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device must be proven. Employees of the treaty trader or investor may also be eligible for an E visa, if they have been employed in a managerial/executive or specialized capacity. The E visa is generally issued for 4 or 5 years, and each visa holder may remain in the US for 2 years at a time. This means that every two years the visa holder will need to exit the US and reenter, or file certain paperwork with the USCIS in the United States to extend his or her stay. The E visa can be renewed indefinitely so long as the trade (E-1) or the investment (E-2) is in existence. However, once the trade or investment ceases, the visa will become invalid and will not be renewed. Also, spouses and unmarried children under the age of 21 of the principal visa holder can obtain derivative visas: the children can go to school on their derivative visas, while the spouses may apply for a work authorization to seek employment in the United States.

This type of visa is the closest alternative to permanent resident status, because it allows its holder to remain in the US for a very long time, provided that the sponsoring business is still in activity.

H-1B visa

Finally, the H-1B visa category applies to skilled workers sponsored by a US employer. The employer must prove that both the job offered and the employee's credentials are professional. In other words, the job must require the theoretical and practical application of a body of highly specialized knowledge, and the employee must hold at least a US bachelor's degree or its equivalent. This visa category is subject to annual quotas of 65 thousand visas for bachelor's degree applicants and an additional 20 thousand visas reserved only to master's degree applicants. Applications can be submitted every year starting April 1st. Companies intending to sponsor future employees under this category should consider applying as soon as possible, because in the recent years the quotas have been reached in a matter of days. Once the visa applicant obtains the visa, he or she will be allowed to start working in the US only after October 1st of the year on which the visa was obtained. H-1B visas are generally issued for an initial period of three years and can be renewed for an additional three-year period. During this time, it is also possible to apply for and obtain permanent residence (green card). Spouses and unmarried children under the age of 21 can obtain a derivative visa. However, the spouse of an H-1B visa holder is not eligible to work in the United States.

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Each visa category has its requirements that must be met at all times during the visa validity. Therefore, it is important that companies wishing to sponsor employees evaluate carefully which visa category better suits their specific case. Our firm may provide adequate legal assistance in connection with visa petitions and filing. Requests for information or insights on this issue may be addressed to stefano.abbasciano@vallalaw.com.

This article is for information purposes only and does not constitute legal advice. The information contained herein may be outdated or incomplete, and shall in no way be taken as an indication of future results. The transmission of this article is not intended to create, nor its receipt constitutes, an attorney-client relationship between sender and receiver. You should not act on the information contained in this article without first seeking the advice of an attorney.



[1]Stefano Abbasciano, Esq. (stefano.abbasciano@vallalaw.com) practices as Associate Counsel at Valla & Associates, Inc., P.C. (www.vallalaw.com).