SUMMARY OF TEMPORARY
U.S. BUSINESS VISAS
DAVID D. SPENCER
1621 Lake Mount Drive
Snohomish, WA 98290-1730
Tel 360.862.9101 or 206.650.7048
For non-U.S. businesses and investors, one for the first considerations in their planning process must be the proper visa status for individuals undertaking activities in the U.S. Unfortunately, visa matters are often overlooked until the last minute, when other elements of the business plan are moving forward. The result may be costly delays or a compression of options and planning opportunities.
Equally unfortunate is the tendency of business executives to rely on hearsay or the advice of non-professionals in immigration matters.
The best approach is to think of U.S. immigration law as every bit as complex as tax or securities law. If you do this, you will obtain sound professional advice in a timely way that may avoid mistakes that could be costly.
The following paragraphs briefly summarize the principal non-immigrant (temporary) U.S. visas available to business and investors and their employees. Permanent residency (green card) visas are not considered here, but often it will be appropriate to consider how a non-immigrant visa holder might transition to a more permanent status in the U.S.
Please note that every visa situation is different and must be analyzed on the basis of its specific facts. Accordingly, the following should not be considered legal advice. Readers are encouraged to retain competent counsel in the immigration area to develop and implement a visa strategy tailored to the facts of the case.
Business Visitors (B-1 Visa)
The B-1 visa is the visa for business visitors. Depending on the visitor’s nationality, the visitor may or may not be required by U.S. law to apply for the B-1 visa at the nearest U.S. consulate or embassy in the home country. For example, Mexicans entering the U.S. as business visitors are required to obtain a visa from the U.S. consulate or embassy, but Canadians are not. Also, the U.S. has a visa waiver program under which nationals of specified countries are not required to obtain a B-1 visa in advance. (See attached for list of countries.) Whether or not advance issuance of a B-1 visa is required, all foreign nationals entering as business visitors must meet the requirements of that status.
Requirements. The principal B 1 requirement is that the foreign national will receive no U.S.-source remuneration. Other requirements for this visa include an intent to stay for a limited time and return to a foreign residence which the entrant has no intention of abandoning. The INS will occasionally ask for evidence that the entrant has adequate financial arrangements to finance travel in the United States and to return home again. If frequent visits are planned, or if the particular port of entry is known to be especially demanding, the entrant may want to consider carrying a letter which specifies his or her activities in the U.S. so that there is no doubt that a B 1 visa is appropriate. Even if the foreign national will receive no wages or salary from a U.S. source during his or her visit, care should be taken to avoid activities, which principally benefit the U.S. company, rather than the employer abroad.
Examples of permissible activities under a B-1 visa: business meetings, negotiating contracts, taking orders, conducting market research, taking preliminary steps to set up a new business, and after-sales service of equipment sold to a U.S. buyer (provided such service is part of the sales contract for the equipment).
The period of stay under a B-1 visa usually is six (6) months. B-1 entries under the visa waiver program are limited to three (3) months, and changes to another type of visa while in the U.S. are not permitted.
Intracompany Transferee (L-1 Visa)
The L 1 visa is available to executives, managers or persons with “specialized knowledge” of their employer’s business. INS regulations provide detailed definitions of the above terms. The employee applying for an L 1 visa must also have worked for an affiliate of the U.S. employer outside of the United States for at least one (1) continuous year within the three (3) years preceding the application.
The L-1 visa petition is usually submitted by the prospective U.S. employer to the appropriate regional service center of the INS. The one exception to this filing requirement is that under NAFTA, L-1 petitions on behalf of Canadian citizen beneficiaries may be adjudicated at a major port of entry (i.e., a port of entry to which a “Free Trade Examiner” has been assigned).
The initial L-1 period of stay granted by the INS is usually three (3) years. The initial period of stay may be extended to a maximum of seven (7) years for L-1 executives and managers, and six (6) years for L-1 employees with specialized knowledge. These limitations on stay do not apply to L-1 employees who work six (6) months per year or less in the U.S., or who commute regularly to part-time work in the U.S.
Spouses and other dependents of L-1 visa holders receive L-2 visas, which allow them to stay in the United States concurrently with the L-1 visa holder, but do not permit employment. Children on L-2 visas who are under 21 years of age may attend public school. L-2 visas are usually issued at the same time as the L-1, when family members present themselves at the U.S. Embassy or Consulate together with the L-1 visa recipient and appropriate documentation that proves the family relationship.
U.S. employers of a certain size or which have sponsored ten or more L-1 visas may qualify for “Blanket L” status, under which the INS pre-approves the corporate relationship between the U.S. employer and certain affiliates overseas. Applicants who meet all L requirements and who have worked for at least one year for one of the approved foreign entities may submit an abbreviated application form to their nearest U.S. Consulate or Embassy directly.
Professional (H-1B Visa
The requirements for an H-1B visa are as follows: the prospective employee must be coming to the U.S. to perform services in a “specialty occupation,” which is defined as one requiring “theoretical and practical application of a body of highly specialized knowledge.” Such an occupation must be one for which a four-year college degree (or its equivalent from a university abroad) is typically required. The prospective employee must also possess a four-year degree or the equivalent.
Prior to filing an H-1B petition, the U.S. employer must file a Labor Condition Application with the U.S. Department of Labor. The approved Labor Condition Application is submitted to the INS with the H-1B petition. Like the L-1 petition, the H-1B papers are submitted to the appropriate INS regional service center. Unlike L-1 petitions for Canadian citizens, H-1B petitions for Canadian citizens cannot be adjudicated at ports of entry.
The initial period of stay granted under an H-1B visa typically is three (3) years. The maximum period of stay is six (6) years, after which the employee is ineligible for an H-1B or L-1 visa until he or she has been present and resided abroad for at least one (1) full year. There is an exception to the maximum allowable stay when the beneficiary works in the U.S. less than six (6) months per year, or when the beneficiary resides abroad and commutes regularly to the U.S. for part-time employment.
Spouses and other dependents of H-1B visa holders receive H-4 visas, which allow them to stay in the United States concurrently with the H-1B visa holder, but do not permit employment. Children on H-4 visas who are under 21 years of age may attend public school. H-4 visas are usually issued at the same time as the H-1B, when family members present themselves at the U.S. Embassy or Consulate together with the H-1B visa recipient and appropriate documentation that proves the family relationship.
Professionals from Canada and Mexico (TN Visa)
The TN visa is a major liberalization in the law governing the movement of Canadian and Mexican professionals to the U.S. Eligibility for the TN visa is limited to professionals whose occupations appear in Appendix 1603.D.1 of the North American Free Trade Agreement. Professionals entering under the TN visa almost always must have the equivalent of a U.S. baccalaureate degree. The visa is granted for periods of one (1) year, but there is no specific limitation on the number of extensions (or new visas) that can be obtained. Canadian citizens may obtain a TN visa at a port of entry. Mexicans must obtain the TN visa through the INS Service Center in Lincoln, Nebraska. There is also a numerical limitation of 5,000 per year on TN visas granted to Mexican citizens.
Especially for Canadian citizens, the TN visa is a very flexible and relatively easy way of bringing professional employees to the United States to work.
Spouses and other dependents of TN visa holders receive TD visas, which allow them to stay in the United States concurrently with the TN visa holder, but do not permit employment. Children on TD visas who are under 21 years of age may attend public school. TD visas are usually issued at the same time as the TN, when family members present themselves at the border crossing or pre-flight inspection facility together with the TN visa recipient and appropriate documentation that proves the family relationship.
Traders and Investors (E-1 and E-2 Visas)
The “E” visas usually are obtained at the U.S. consulate or embassy abroad that corresponds to the foreign national’s place of residence. They may also be obtained through a change in status application made through the INS if the beneficiary is already working in the U.S.
The fundamental eligibility requirement of an E visa is the existence of a treaty of friendship between the U.S. and the foreign national’s country that supports the visa. Such a treaty exists between the United States and Germany. An E visa is usually valid for 4 to 5 years, and can be renewed. The holder of the visa is normally granted a length of stay of 1 year, which is extendable almost indefinitely, so long as the activity for which the visa was granted is continuing.
Spouses and other dependents of E-1 or E-2 visa holders also receive E-1 or E-2 visas, which allow them to stay in the United States concurrently with the principal visa holder, but do not permit employment. Children on such visas who are under 21 years of age may attend public school. Dependent E visas are usually issued at the same time as the principal visa, when family members present themselves at the U.S. Embassy or Consulate together with the principal visa recipient and appropriate documentation that proves the family relationship.
The H-3 visa is available to a U.S. employer for training individuals from overseas. The employer is required to submit a detailed description of the training program being provided, including a breakdown of hours to be spent in classroom and in on-the-job training, evidence that such training is not available in the foreign national’s country, and an affirmation that the foreign national will not engage in productive employment while in the U.S. The maximum period of stay under an H-3 visa is two (2) years.
Spouses and other dependents of H-3 visa holders receive H-4 visas, which allow them to stay in the United States concurrently with the H-3 visa holder, but do not permit employment. Children on H-4 visas who are under 21 years of age may attend public school. H-4 visas are usually issued at the same time as the H-3, when family members present themselves at the U.S. Embassy or Consulate together with the H-3 visa recipient and appropriate documentation that proves the family relationship.
List of Countries Under the Visa Waiver Program*
*Updated February 2011. The Department of State periodically adds new countries to this list. Please contact us if your country of interest does not appear here.