DCBA Brief, November 2001 Issue - Non-immigrant Business Visas: A Quick Reference Guide

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Non-immigrant Business Visas: A Quick Reference Guide

Non-immigrant Business Visas: A Quick Reference Guide

By Fred De Pasquale

"Ave Cesar! Che Morituti Salutare!" My Latin leaves much to be desired, but a loose translation is: "Hail Caesar! We who are about to die, salute thee!"- From the Gladiators. This famous saying comes to mind when I think of what the thousands of immigrants and aliens must feel when they come to our "friendly shores" and first confront the I.N.S. inspectors.

The following outline is a summary of the most often used business visas encountered by attorneys in the immigration law field. The complete text can be found in Title 8 of the Immigration Nationality Act (I.N.A.). I am steering clear of the statutory citations because I don't want you as readers to get bogged down.

This is designed as a quick reference for the busy practitioner who doesn't want to get too deeply involved, but who would like a quick, easy to read reference. Read it and then put it somewhere easily accessible because sooner or later, a client or prospective client will ask a question about business or work visas, and you will want a quick reliable guide.

The following paragraphs address the most commonly used visas, namely: the L-1(a) visa, the E-2 visa and the H-1B visa, and will also provide general information about the "Green Card" (which is now actually pink).

L-1(a) Intra-company Transfer visas apply only to foreign companies that want to transfer a manager or executive to the U.S. to fill a slot in an existing office, or to open a subsidiary office of the foreign parent company.

Parent Company:

Must be in existence for at least 1 year prior to the transfer;
Must have employees and be engaged in regular and continuous operation;
Must remain in operation while the executive is in the U.S.;
The person transferred must be serving in an executive/managerial position prior to the transfer, and cannot be the only employee; otherwise the parent company would shut down upon the transfer; and
Must be willing to provide evidence of financial condition and payroll to the I.N.S.

Transferee, most likely a key person in the parent company:

Must be an executive/manager of the parent company, and be an actual non-immigrant;
Must have been employed by the parent company for at least one continuous year out of the past three years;
Must be transferring to the U.S. to work in an existing office or will open a new office; and
Must supervise subordinate managers.

U.S. Subsidiary Corporation:

Must be a legal entity, usually a domestic corporation, formed to be a subsidiary of the parent company,
Must have a corporate relationship to the parent such that the parent owns controlling stock,
Must be capable of proving that it will do business in the U.S., or is already existing here, by providing evidence such as a taxpayer identification number from the Internal Revenue Service, an open bank account, etc.; and
Must be able to provide business projections for next year (this only applies to new offices).

Duration and extensions:

Start-up business - one year initially, plus two, three year extensions (7 years is the maximum time allowed for L-1(a) visa);
Business already Operating in U.S. - 2-3 years initially, and 3 year extensions

Manager:

Individual who manages an organization, a division or particular function, or supervises the work of other supervisors. He has the authority to make personnel decisions at a senior level.

Executive:

Individual who manages an organization, or a major component of a corporation here in the U.S., and has senior authority to make policy decisions. He has the authority to hire or fire supervisors and to determine terms and conditions of employment. He will only report to a CEO or board of directors

Specialized Knowledge:

This is a third category to obtain an L-1 visa, but I am excluding it because it is used relatively little by transferees.

Privileges, numerous and worth remembering:

It allows an alien to transfer here to work in that subsidiary office;
The alien need not work full time, but must spend significant time on the job;
No prevailing wage or labor certification is required;
The transferee can easily travel in and out of the U.S., or stay here for the duration of the visa;
Visas are available also for spouse and children for the duration of the visas and any extensions; and
Visa holder can apply for permanent residence (this visa leads to a "Green Card")!

Limitations:

The transferee can work only for the subsidiary. He is not free to move around;
The parent company must have a controlling interest in the subsidiary; and
The parent company must remain in business while the alien is here (he I.N.S. is fairly strict on verifying financials and payroll for the parent company).

E-2 Investor visa is also a popular business visa and is not as difficult to obtain as a L-1(a) visa, but it does have some drawbacks. Basically, it allows a foreign investor to invest money in a U.S. entity and to hire U.S. employees.

Foreign Individual Investor:

Must be a foreign national and a bonafide non-immigrant capable of traveling to the U.S.;
Must make a substantial investment in a U.S. business, and all funds must be at risk;
Must show that they have control over the funds, and that they are actually committed to the investment;
Must be investing in a real operating business, and show that they will be supervising managers or other supervisors; and
Must be coming to the U.S. exclusively to direct the specific business and have additional funds to support the venture if necessary.

U.S. Entity:

Must be registered to do business in the U.S., such as a domestic corporation;
Must be owned by the foreign individual who is a national of a country that has a treaty with the U.S., and will provide for employment of U.S. workers in addition to the investor;
Must show that the U.S. entity will produce significantly more income than what is needed to support the investor only;
Must show the usual business functions such as a lease for premises, corporate bank account, business plan, and realistic financial projections for the first 2 years, typically the duration of the initial E-2 visa;
Must be at least 50% owned or controlled by the foreign investor or a foreign business entity;
Other requirements that logically flow from the above include the funds being at risk, being irrevocably committed to the U.S.entity, subjected to partial or total loss should the enterprise fail;
It is permissible to place the funds in an escrow account, thereby allowing return of the funds to the investor should the visa be denied;
The I.N.S. requires a substantial investment but the amount can be as little as $50,000 (must show that it will lead to increased employment and further business growth); and
It must be shown that the investor will direct and manage employees and will not be personally involved in work as a skilled or unskilled worker.

Privileges:

Once awarded, this visa can be extended for two year periods, indefinitely. Additionally, the investor can be actively involved in the company, and need not previously have worked for a foreign parent company. A derivative E-2 visa is available to spouses and children of the E-2 investor.

Limitations:

The E-2 investor cannot apply or be granted permanent residence (Green Card) with this visa. It is particularly unfortunate that many E-2 investors are given false assurances by foreign advisors that this visa will lead to a green card. They arrive at our shores only to find out that their visa is a visa to “nowhere”! Bear in mind, E-2 visas are approved and issued by the U.S. Consul overseas. Therefore, many of these investors don’t get the advantage of competent American attorneys.
Treaties permitting the E-1 trader and E-2 investor visas exist between the United States and most European countries, Canada, Mexico and some South American countries. The countries with treaties are changing constantly. Be advised that Iran, Iraq and similar countries may not have treatises. This effectively cuts off all visas from these countries to the U.S. As a practitioner, the national origin of the investor-client becomes important if they are from a country that the U.S. does not have friendly relations with.

H1-B Specialty Occupation Visa “Catch-all” work visa issued by the I.N.S. This visa is somewhat unpopular with the Federal Government because labor unions contend that this visa takes jobs away from qualified U.S. citizens. This visa was characterized by the Wall Street Journal as the visa to Hell! This visa is used to get nurses and other health care providers here. It is also used for technology personnel such as computer engineers, financial analysts, etc. To qualify for an H1-B visa there are several requirements.

Employer:

Must be a U.S. employer seeking the services of the foreign worker (a person, firm or corporation with a Taxpayer Identification Number issued by the I.R.S.);
The employer must be able to show the I.N.S. that the position to be filled is a specialty occupation, requiring a minimum of a bachelor’s degree in that field (we all know that we prove the rule by finding the exceptions, look at employee requirements to find the exceptions in this requirement -if the alien has considerable experience, this may offset the education requirement);
To establish the need, the employer must file a Labor Certification Application (LCA) with the U.S. Labor Department, and post an employment notice on a prominent bulletin board in the company advertising the job. This must be done for at least 10 days;
The employer must attest that it will pay the alien worker at least 95% of the prevailing wage and will offer prevailing working conditions to the prospective employee; and
Prior to starting, the employer must obtain approval pf the position from the I.N.S.

Employee:

Must have a written job offer from the employer described above;
Must have a bachelor degree or higher in the field of work for which there is a job offer (if that person has a foreign degree, it must be evaluated by a recognized degree evaluation service to certify equivalency to a U.S. degree);
If the employee lacks the required degree, then all relevant experience in that field can be evaluated by the same service, granting 1 year college credit for each 3 years of training or experience, and hopefully the candidate has some college training to get to the 4 year equivalency;
The employee must intend to remain in the U.S. temporarily for no longer than the term of the visa. H-1B visas are issued in 3-year increments up to a maximum of 6 years; and
The employee must reside abroad for 1 year after expiration of the visa before applying for another H-1B visa.

Miscellaneous Information:

There is an annual “cap” on these visas. Once the limit is reached, the I.N.S. stops issuing H-1B visa approvals until the following year. Currently the annual cap was raised from 65,000 per year to 195,000;
Currently, with the economic down turn, thousands of H-1B employees have been laid off. The I.N.S. once notified by the employer will give the employee a “reasonable time” to find another employer to transfer the visa;
There appears to be no fixed time, but assume it to be approximately 30 days. If the employee cannot find a new job, they are automatically in violation of their status and are immediately deportable;
The employee must immediately leave the U.S. and return to his native country and start the whole process over again; and
Now for the “dicey” part of the H-1B. If the employee gets laid off or quits, the employer must notify the I.N.S. of the dismissal promptly or face penalties from the Government.

Privileges:

The right to work here for that employer;
No foreign residence need be maintained. In fact, many H-1B employees sell their homes to raise money to move here. Therein lies the problem. If the alien loses his job and has to return to his native country, he owns a house here and has nowhere to return to in his native country;
They may travel in and out of the U.S. (indeed foreign travel is often a condition of employment for the American employer);
Visas are also available for spouse and children for the duration of the visa; and
The employer can petition for the permanent residence of the employee if it so elects.

Limitations:

The I.N.S. filing fee skyrocketed from $500.00 to $1,100.00 in December, 2000;
Any change in employment requires re-filing with I.N.S. and another fee;
A BA or BS degree is required or the work and training equivalent in that field;
The visa is issued in 3 year increments with renewals limited to 6 years total;
The employee must reside outside the U.S. for at least 1 year before re-applying if he/she should leave after the 6 years;
The employee must intend to remain here only temporarily; and
The Permanent Residence (“Green Card”) allows the employee to change employers at will. It is therefore no surprise that few employers are willing to go the extra step knowing that once the employee has the Green Card, they may well leave the employer. It is usually the employer who paid several thousand dollars for the paperwork and legal fees.

Permanent Residency- “Green Card” The Green Card is the equivalent of Heaven to the thousands of aliens who make a life altering decision to remain in the U.S. The I.N.S. has created an obstacle course that is difficult, time consuming, and of course very expensive. If an alien has the perseverance and patience, the card is the end result.

Privileges:

The L.P.R. (Lawful Permanent Resident) can live anywhere in the U.S., and likewise can work anywhere, doing whatever work they desire;
There is an unlimited right to travel in and out of the U.S. for any reason;
The Green Card is issued for a ten year period, however, only after residing here for 5 years continuously is naturalization is permitted. Naturalization is the legal process whereby the individual gets U.S. citizenship and a U.S. Passport; and
Permanent Residence is also available to the spouse and any children under the age of 21.

Limitations:

The official place of residence must be the U.S.;
U.S. income taxes must be paid on worldwide income;
The L.P.R. cannot remain outside the U.S. continuously for more than a year. To do so can result in the revocation of the Green Card upon re-entry into the U.S. The I.N.S. takes the position that anyone who remains out of the U.S. for the above period has abandoned the Permanent Residence and therefore is now inadmissible; and
There is no right to vote, and of course the Card must be renewed every 10 years.

Conclusion

You have the basic information on only certain common visas. Not covered were the B1/B2 (so-called multiple tourist visa), the L-1(b) specialized knowledge non-immigrant visa, the E-1 non-immigrant trader visa, EB-1 and EB-2 “exceptional ability” immigrant visas and the EB-5 entrepreneurial visa. If you wish to dig deeper, the I.N.S. has an excellent website. The website is: www.usdoj.gov/. Once on it, click on the Immigration Information link, and you are in business.

Fred DePasquale is in private practice in Naperville. A graduate of I.I.T. Chicago Kent College of Law, he served in Cook County as an A.S.A. in Juvenile, White Collar Crimes and Traffic. He served as Chief of the Misdemeanor and Traffic Division under J. Michael Fitzsimmons former DuPage States Attorney. He also served as an Asst. Attorney General in Revenue Litigation in Chicago and served for approximately 7 years as an Administrative Law Judge for the Illinois Department of Revenue.