A foreign business entity or individual planning to do business in the United States should assess U.S. immigration laws at the earliest opportunity. Planning immigration strategies and alternatives, for both the long and short term, is crucial, as U.S. immigration law does not accommodate all foreign persons seeking to work and live in the U.S.
Assessing the U.S. Market / Establishing a Business
Businesspersons seeking to enter the U.S. for the purpose of assessing the market & taking initial steps to set-up an appropriate business entity may generally do so as Business Visitors on the B-1 visa. This visa is available to persons who have their permanent residence outside the U.S. and desire to enter the U.S. on behalf of their foreign employer for the purpose of business assessment & efforts at initial set-up.
B-1 Business Visitors may be admitted to the U.S. for an initial period of up to one year, with extensions available under appropriate circumstances.
However, citizens of countries participating in the Visa Waiver Program [VWP], including the following,
Andorra, Austria, Australia, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the United Kingdom and Uruguay,
may apply for admission to the U.S. without a B-1 visa under Visa Waiver Pilot Program, providing they otherwise qualify for a B-1 visa and desire to remain in the U.S.
To enter the U.S. on the VWP, travelers from participating countries must: Have a valid passport issued by the participating country and be a citizen (not merely a resident) of that country. As of October 1, 2003, the passport presented at the U.S. port of entry must be a machine readable passport; Be seeking entry for 90 days or less as a temporary visitor; If entering by air or sea, have a round-trip transportation ticket Have proof of financial solvency and hold a completed and signed visa waiver arrival/departure form (I-94W), on which he/she has waived the right to a hearing of exclusion or deportation.
More on Establishing the Business
As indicated above, B-1 visa holders as well as those entering under the VWP may take initial steps to establish a U.S. business enterprise. This can include instructing lawyers to incorporate a U.S. entity and generally attending to all aspects of the start up phase of the business including signing leases, contracts & the like. However, no follow-on participation is allowed. As well, citizens of the 28 countries entering under the VWP are restricted in their efforts to a period of only 90 days, not the one-year period afforded to B-1 visa holders.
Working for the U.S. Business Entity on a temporary basis
The Nonimmigrant Work Visas
U.S. Immigration law offers a number of the nonimmigrant work visas that permit temporary work in the U.S. Those visas would include:
H-1B Visa
The H-1B visa is available to specialty occupation workers, who will work in a professional field and is most often used for technology related positions. The visa presupposes that the job in question requires the equivalent of a US bachelor's degree [4 years of full time study] in a particular field and that the foreign national possesses such a degree.
The H-1B visa program is subject to quota, with 65,000 visas being available for the year starting October 1, 2005 plus 20,000 H-1B visas limited solely to those aliens who have received a master's or higher degree from a U.S. institution of higher education.
The H-1B visa is valid for an initial period of up to three years and can be extended for an additional three year period, for a maximum of six years.
The L-1 Intra-company Transferee Visa
The L-1 intra-company transferee visa is available to executives, managers and specialized knowledge personnel, who are to be transferred to a U.S. parent, branch, subsidiary or affiliate. The transferee must have worked for the overseas entity for at least one full year in the previous three years prior to transfer to the U.S. and in an executive, managerial or specialized knowledge capacity.
There is no nationality restriction or quota imposed on intra-company transferees.
The maximum period of stay for executives and managers is 7 years. Specialized knowledge personnel are limited to a maximum of 5 years.
The E Treaty Visas [ E-1 and E-2]
The E Treaty visa is available to citizens of certain countries that have entered into a Treaty of Friendship, Navigation and Commerce or such other arrangement with the U.S. Most of the European countries have such treaties, and other countries include Canada, Mexico, Japan, Australia and New Zealand. The E-1 visa is available to treaty traders and the E-2 to treaty investors. Note that the E visa is available to individual entrepreneurs, as well as to employees of treaty trading or investing entities.
Spouse and other Dependents
The U.S. nonimmigrant work visas [L, E and H-1B] do not normally afford a spouse or any other dependent the right to work in the U.S.
Working for the U.S. Business Entity on an indefinite basis
If the U.S. business needs the services of the foreign national on an indefinite basis, an immigrant visa [know as a green card] option should be taken under consideration.
The immigrant visa [green card] gives the holder the following rights and obligations:
Rights to:
· Live and work in the U.S.;
· Apply to become an American citizen after holding a "green card" for a certain length of time;
· Petition for a immigrant visa for a spouse and unmarried children Obligations to:
· Maintain the place of actual residence in the U.S [exception - commuters]
· Pay U.S. taxes on a worldwide income
· Not to remain outside the U.S. more than one year at a time without special permission
Note that a wife and all other legal dependents of an immigrant visa holder are eligible to obtain immigrant visas on a derivative basis
Three principal ways to obtain an immigrant visa:
First: Family Based Petition
U.S citizens may petition the Service to classify spouses, parents and unmarried children under the age of 21 as permanent resident aliens. Such immediate relative petitions are not controlled by an annual quota. Preference petitions may also be filed by permanent resident aliens on behalf of their spouses and children, but these petitions are subject to numerical quota and significant delays.
Second: Employment Based Petition
U.S. employers may file an immigrant preference petition on behalf of a foreign worker.
In order to qualify for a immigrant visa [green card] through employment a foreign person must:
· Have a specific job offer from a U.S. employer,
· Have the correct background in terms of education and work experience for the job been offered,
· There must be no qualified American Citizen willing or able to take the job- [Labor Certification] except in categories where Labor Certification is not required.
Whether a foreign person needs a Labor Certification to obtain an immigrant visa [green card] through employment depends on the preference work category.
The five employment preference categories are:
Employment First Preference [No Labor Certification required]
Priority workers: 1) persons of extraordinary ability, 2) outstanding professors and researches, 3) transferring executive or managers of multinational companies.
Employment Second Preference [Labor Certification required]
Workers with advanced degree or exceptional ability 1) advanced degree professionals, 2) persons of exceptional ability.
Note: Labor Certification and job offer requirements could be waived in the second category if the applicant's presence will 'benefit' the U.S. in the future. By 'benefit' the Immigration & Naturalization Service means a favorable impact on economic, employment, educational, housing, cultural or other important aspect of the country. The impact must be national and substantial.
Employment Third Preference [Labor Certification required]
Skilled or unskilled workers without advanced degree 1) professional workers (bachelor degree and less than five years of work experience), 2) skilled workers (at least two years of training experience}, 3) unskilled workers (less than two years of training experience).
Note: no waiver available for either labor certification or job offer.
Employment Fourth Preference [No Labor Certification required]
Religious workers and various miscellaneous categories of workers and other individuals 1) religious workers, 2) foreign medical graduates, 3) former overseas U.S. government workers, 4) retired employees of international organizations, 5) persons employed in the United States Consulate in Hong Kong, 6) persons declared dependent on a Juvenile Court, 6) accompanying spouses or children under 21 of a special immigrant.
Employment Fifth Preference [No Labor Certification required]
Individual investors willing to invest $1,000,000 in a U.S. business [or $500,000 in economically depressed area]
Third: Diversity Lottery Program
The U.S. also makes available a number of immigrant visas for persons who were born in certain countries and regions from which the U.S. has experienced relatively low immigration during the prior five years are the primary recipients of these so-called lottery visas.
