Business Immigration Overview for Multinational Corporations
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Introduction: Visa Terms
A visa is permission to enter the United States. It is like a "key" to enter; it is not permission to stay. A visa is issued by the State Department through consulates and embassies worldwide. The Immigration and Naturalization Service (INS) does not issue visas. Rather, the INS' role is to approve a foreign national for classification in a particular visa category. If the applicant already possesses a visa in his or her passport and is in the United States, the INS can grant change of status (e.g. from tourist to a work eligible category) that effectively extends the applicant's period of stay in the United States. Generally, once a departure from the United States is made, a new visa must be obtained.
A nonimmigrant visa (NIV) is a temporary visa that enables a person to remain in the United States for a specific period of time and for a specific purpose. Some NIVs confer work eligibility; all of these are employer-specific.
An immigrant visa (also called a "green card" or IV) is permission to remain permanently in the United States. Green cards convey universal work eligibility. A green card may be obtained in a variety of ways, including through the sponsorship of a U.S. employer.
B-1 -- Business Visitor
A business visitor is a foreign national temporarily visiting the United States to conduct business that benefits his or her foreign employer. A B-1 may not receive remuneration from a U.S. employer. Nor may a B-1 engage in productive employment in the United States that U.S. workers might perform. B-1 visas can be obtained by persons coming the United States to consult, sell products, attend conferences or business meetings, evaluate investments, etc. A B-1 visa is obtained by application at a U.S. consulate abroad. An applicant must demonstrate an ability to support him or herself in the United States, document the purpose of the trip and demonstrate an intent to return to an unabandoned foreign residence. Increasingly, the State Department is leery of use of the B-1 category to circumvent other business visa categories.
B-1 visas are usually "multiple entry" for up to 10 years, meaning that a person may repeatedly enter the U.S. in B-1 status during that time without revisiting an embassy or consulate to get a new visa. The duration of stay in B-1 status can be anywhere from 3 weeks to 6 months upon initial entry. Once in the United States, a B-1 business visa can be extended through
the INS for up to 18 months on one trip.
Nationals from 23 countries can enter the United States to work or visit for up to 90 days without having to obtain a B visa. This program, called the visa waiver pilot program, can be useful for short term business visits. Individuals from such countries as France, Italy, Japan and the United Kingdom can take advantage of this program.
E-1 and E-2 -- Treaty Traders and Investors
An E-1 treaty trader is someone who enters the United States primarily to carry on trade between the United States and a foreign country that has signed a treaty of commerce and navigation (or its equivalent) with the United States. The treaty trader must carry a passport from the country represented. The initial period of admission is one year. Indefinite extensions of stay are possible.
An E-2 treaty investor is also a national of a foreign country with which the United States has signed a treaty of commerce and navigation, or its equivalent. However, a treaty investor is someone directing and developing a business in which he or she has invested a substantial amount of capital. Top managers and executives of firms that have made substantial investments in qualifying enterprises may also qualify, as may "essential" employees. A one year initial period of admission is permitted, with extensions available in appropriate circumstances.
F-1 -- Foreign Student
An F-1 visa holder is a fully enrolled foreign student in good standing pursuing a degree or non-degree academic program in the United States. An F-1 visa is issued for an indefinite period of time, but the duration of stay is recorded on an I-20, the student status document. A foreign student must have an unabandoned foreign residence and proof of ability to meet tuition and expenses in the United States. F-1 degree students are entitled to 12 months of work authorization upon completion of a program of study. In immigration lingo, this is called "practical training."
TN -- Trade NAFTA
Mexican and Canadian nationals may enter the United States on TN visas under the North American Free Trade Agreement. For Canadians, TNs are much simpler to process than for Mexicans. For Canadians, an application is made at a border point of entry by demonstrating Canadian citizenship, a job offer from a U.S. employer for a position listed on the TN list of qualifying positions (mostly technical positions), proof of an unrelinquished foreign domicile in Canada, and the application fee.
The TN visa is valid for 12 months and may be renewed indefinitely by making a new application at a border point of entry. Because there is no application form and no clear adjudicatory standards followed by border inspectors, TN is a highly discretionary category, and success in gaining TN status is highly uncertain. The management consultant category on the TN list, because it is the only non-technical title, is the most difficult to qualify for. For Mexicans, the TN visa requires compliance with regular H-1B procedures, outlined below.
H-1B -- Professional Worker
H-1B classification is for a foreign professional worker coming to the United States for an initial period of up to three years to work in a professional position. The foreign national must have a bachelor's degree or its equivalent, and the position must be a professional one. In addition, the H-1B process requires an employer to file an attestation with the U.S. Department of Labor (DOL) pledging to do four things: (1) pay the H-1B worker the higher of the prevailing wage or actual wage at the workplace;
(2) give notice to U.S. workers similarly employed; (3) promise that no labor unrest or strike exists in the position; and (4) promise to pay the foreign national's return transportation home should he or she be fired within the validity period of the visa.
The DOL is increasingly involved in H-1B petitions. The DOL conducts random investigations of H-1B employers, and assesses significant penalties and sanctions against employers who do not comply with the regulations. DOL regulations also make employers who move H-1B workers to multiple work sites responsible for ongoing reporting to the DOL regarding the wage and notice requirements described above for each worksite.
An H-1B visa can be extended once for a second three year period. Compared to visa options for unskilled workers, the H-1B is the most advantageous category to use where none of the other categories described here are possible.
L-1 -- Intracompany Transferee
An L-1 visa holder is a foreign national who has worked abroad for at least one out of the three years immediately prior to entry to the United States as a manager, executive, or specialized knowledge employee of a foreign affiliate of a U.S. company and who will be transferred to the U.S. affiliate to work in a similar position. L-1 managers also include function managers,
meaning people who oversee production or a function instead of personnel. The specialized knowledge subcategory aims to facilitate transfer of high level technical staff. The L-1 category, if applicable, is the best category to use as it does not involve DOL at all. Further, blanket L-1 authorization is an attractive option for big companies transferring managers, executives or
specialized knowledge personnel. A blanket L visa petition enables a company to file once with the INS, attaching a schedule of all affiliates. Following approval, foreign personnel may simply appear at an embassy without prior application or appointment, bearing a copy of the L-1 blanket approval and a job letter and obtain an L-1 visa.
NIV Summary
There are many other nonimmigrant visa categories, most of which are inapplicable for general business purposes. Two that may have some relevance to multinational corporations are the H-3 trainee category and J-1 industrial and business trainee category. An H-3 trainee is someone coming the United States to pursue a course of training not available in his or her home country, not displacing American workers, and not productively employed in the United States. J-1 business and industrial
trainees may come to the United States to train for up to 18 months for an entity previously approved by the INS as a J-1 visa sponsor. While the J-1 process is very easy for employers to use, all trainees must return to their home countries after completing training, unless a waiver of this requirement is obtained. Such waivers are hard to obtained.
Green cards are obtained through the sponsorship of spouses who are green card holders, or parents, adult children, spouses, or siblings who are U.S. citizens. Green cards can also be obtained through the annual diversity visa lottery, through the asylum process, or through the sponsorship of an employer. Obtaining a green card based on a job is a relatively painless process for very highly skilled persons who plan to do unique work in the United States, because it is presumed that these people do not displace American workers. For ordinary professionals or skilled workers, however, the process requires advertising and recruitment to prove to DOL that there are no U.S. workers minimally qualified to perform the job. Called "labor certification," this process is integral to most employment-based green card cases and can take one to two years to complete.
Multinational executives and managers (see L-1 category above) have a distinct advantage in obtaining job-based green cards because no labor certification is required. The requirements are identical to the L-1 category described above, with the exception that specialized knowledge employees may obtain L-1 visas but may not obtain green cards through this category.
Other Issues
Employment of foreign personnel impacts personnel policy in several ways beyond the visa petition process. Employer sanctions, I-9 forms, travel documentation, family related issues, anti-discrimination, and job contract issues may also arise.
For further information on these or any other immigration issues, please contact Miller Mayer