Immigration: Effective Visa Planning for U.S. Market Entry
January 24, 2020Guest Post by Melissa Azallion Kenny, Partner, Burr & Forman
From 2014-2018, 13.9% of newcomers to the Upstate came from international populations, with a net gain of 9,883 arriving, our Research team reported in our post “Who’s Moving to the Upstate.” The influx of internationals parallels the increased Foreign Direct Investment in the Upstate over the last five years: more than $6.5 billion dollars of capital investment and almost 12,400 jobs created.
For companies to engage in foreign-direct investment into the United States, understanding various visa options and requirements is vital for successful planning. That can bring many questions, such as: what are the routes to obtaining visas, how long do they last, and how many are available?
In this guest post, Burr & Forman Partner Melissa Azallion Kenny offers an introduction into the business immigration process through U.S. Citizenship and Immigration Services (USCIS):
Strict enforcement of the immigration laws does not mean visa options are unavailable. In fact, businesses continue to routinely utilize immigration strategies to employ top talent and ensure competitiveness in the marketplace. The key to success in business immigration planning involves creative strategizing and fully understanding the company’s objectives, timeframes and overall goals.
The following business visa strategies can be used for entry into the U.S. marketplace:
B-1/B-2 – Business Visitor
The Business Visitor Visa is commonly utilized by foreign nationals for short periods in the United States to engage in business activities not rising to the level of “gainful employment”. Business activities include: (1) engaging in commercial transactions not involving gainful employment; (2) negotiating contracts; (3) consulting with business associates or attending company meetings; (4) providing consulting services regarding import or export of goods; (5) installing, repairing, or maintaining equipment under a contract; or (6) training workers after a sale of commercial or industrial equipment in certain instances.
Business Visitors can remain in the United States for up to six months per visit. Importantly, Business Visitors may not be paid by the U.S. entity, although they may be paid by a foreign entity. Companies seeking to utilize the visitor classification should equip foreign nationals with documentation confirming the purpose of their trip.
H-1B – Professional
Foreign nationals who work in a position requiring at least a Bachelor’s Degree in a specific field may be eligible for an H-1B visa. Congress has capped the number of H-1B visas available each year at 65,000, with an additional 20,000 available for foreign nationals with a U.S. Master’s Degree.
In the past, employers seeking an H-1B for an employee filed their petitions in the first five business days of April. When USCIS received more H-1B applications than available visas, a random lottery was conducted to select petitions for adjudication.
In 2019, USCIS began implementing new rules aimed at enhancing the chance of more highly educated foreign nationals being selected in the H-1B lottery. USCIS first conducts the regular H-1B cap selection with all Master’s Degree petitions included. Once the regular H-1B cap selection has been completed, USCIS conducts the Master’s Degree allocation selection. According to immigration officials, the new process significantly increases the chances that individuals with a Master’s Degree or higher will receive an H-1B visa.
In 2020, a new H-1B registration system will be rolled out as well. Recently, USCIS announced a registration fee of $10.00 per petition. In prior years, employers were required to prepare a full visa petition, despite the chance that the petition may not be selected in the lottery. The new registration system will allow employers to electronically register for the H-1B lottery from March 1 to March 20, 2020 by completing an application with basic information about the company, foreign national and position to be filled. The employer would prepare and file a full visa petition only if selected in the lottery.
H-1B beneficiaries are eligible for six (6) years in H-1B status, with additional extensions available for those involved in Green Card sponsorship. The H-1B visa also encompasses “dual intent” which provides a number of advantages to foreign nationals throughout the Green Card process.
L-1 Intracompany Transferee
U.S. companies with a qualifying corporate relationship to a foreign corporate entity can transfer certain workers from the foreign entity to the United States under the L-visa classification. Parent/subsidiary, affiliate and branch offices constitute qualifying corporate relationships for L-visa purposes.
In order to qualify for an L-visa, the employee must have worked for the foreign entity in either a Managerial/Executive role or Specialized Knowledge position for one of the most recent three years and come to the United States to fill a Managerial, Executive or Specialized Knowledge position.
Certain large multi-national corporations can obtain a “Blanket-L” visa. The Blanket-L is extremely advantageous because it allows most L-visa beneficiaries to apply for a visa directly at the U.S. Consulate rather than obtaining initial USCIS approval. The Blanket-L is particularly advantageous in today’s immigration climate since USCIS has stopped giving deference to prior approvals on extension petitions. There have been recent announcements about some upcoming changes to the Blanket L program as well.
Those coming to the United States as a Specialized Knowledge Worker receive an L-1B visa, are eligible for an initial three-year stay, and can apply for a two-year extension. Managers and Executives are issued an L-1A visa. L-1A visa holders receive an initial three-year stay and are eligible for two, two-year extensions.
E-2 Treaty Investor
When a foreign entity or individual invests a substantial amount of money into a U.S. business, the E-2 Treaty Investor visa may be a viable option. At the outset, the E-2 visa requires a qualifying treaty between the United States and the foreign investor’s country of nationality. Currently, more than 80 countries currently hold E-2 treaties with the United States.
The E-2 visa criteria require that both the foreign national and the foreign investor have the same nationality. The investment in the U.S. business must also qualify as “substantial.” The definition of “substantial investment” is a sliding scale, but investments of $100 thousand or more typically qualify.
The E-2 strategy can be utilized to sponsor either the investor (if any individual) or an employee of the U.S. operation. An individual coming to work as an employee must either serve in a supervisory role (interpreted in a manner similar to that of an L-1A Manager) or possess skills necessary to the operation of the company in the United States.
As with the Blanket-L, E-2 applicants have the advantage of bypassing USCIS and applying directly at the U.S. Consulate. E-2 visas can be issued for up to five years and have no maximum number of renewals. E-2 entrants are typically granted a two-year period of admission.
Conclusion
These visa classifications can be useful for a variety of different positions depending upon the facts and timing needed by the company. Before choosing an immigration strategy, it is imperative that employers consider all of the legal and practical advantages and pitfalls to ensure utilization of the best option.
For questions, please contact Melissa Azallion Kenny ([email protected]) or Jonathan Eggert ([email protected]) of Burr & Forman’s immigration team at (843) 785-2171.
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Interested in more on immigration? See other posts in our series: