Friday, April 24, 2015

U.S. business-related visas

A foreign national cannot be paid from a U.S. source for services rendered in the U.S. without a U.S. visa so permitting. The permanent residence visa or “green card” is a permanent or “immigrant” visa, the other listed types are temporary. A green card holder becomes a permanent U.S. resident for federal income tax purposes. That means the green card holder becomes taxable in the USA on income earned anywhere in the world.

B-1. This type of visa does not allow a foreigner to be paid for work in the US. Nevertheless, the B-1 holder can negotiate contracts, consult with business associates, solicit sales or investment, discuss planned investment or purchases, make investments or purchases, interview and hire staff, and engage in similar permitted activities in the U.S. With a B-1, each U.S. stay will be limited to a short period (6 months is the maximum but may not necessarily be granted for a particular stay). There is a “visa waive program” applicable to nationals of particular countries permitting them to stay in the States for up to 90 days without a B-1 (or B-2 visitors for pleasure) visa.

E-1 (“Treaty Trader”). The E-1 is only available for nationals of countries that have concluded a particular type of treaty with the USA granting access to it. The E-1 may be available if a company from such a treaty country having a U.S. operation. The applicant must show that he/she will hold an executive or supervisory position in the US operation. At least 50% of the US Operation’s total volume of trade, which must be “substantial”, must be with the foreign treaty country.  Nationals of the treaty country must own at least a 50% of the foreign company. The individual seeking the visa must be coming to the USA to carry on that business.

E-2 (“Treaty Investor”). The E-2 is available only to nationals of a country that has a particular type of treaty with the USA according access to it. As with the E-1, one must first determine if, in the particular situation, the E-2 is available at all. The key for the E-2 is the amount of “capital” the foreign company or individual has invested its US Operation. It must be sufficient for the type of business concerned (no precise amount is specified in the regulations). The applicant can be, but need not be, an owner of the foreign treaty company, but he/she must be employed by it. He/she must be a manager or highly trained or specially qualified employee who is needed to develop and manage the US Operation. As with the E-1 (Treaty Trader) visa, nationals of the foreign treaty country must own at least 50% of the treaty country company. The E-2 holder can be paid for his/her services by the US Operation. Spouses of E-1 holders are eligible, by prior authorization, to work in  the USA.  No  quotas exist for  E-2s.

Permanent Resident Visa Based on a Substantial U.S. Investment (Visa EB-5): This is a special type of permanent resident visa. It is for a foreign national that make a significant investment in a “new U.S. enterprise”. The new U.S. enterprise can be a newly created one, or the expansion of an existing one, or one resulting from the purchase of an existing U.S. business and its restructuring or reorganization. The applicant must invest at least US$ 1 million in the new U.S. enterprise (US$500,000 in certain exceptional cases). He/she must show a benefit to the U.S. economy and satisfy certain other requirements and criteria regarding employment, new job creation and certain others.

L-1. This visa is for a foreign national “executive”, “manager” or “person of specialized knowledge” (all defined terms in the U.S. immigration law) who has worked for an enterprise outside the U.S.A. for at least 1 year within the past 3 years in one of those capacities and is being transferred to that enterprise’s U.S. subsidiary, branch office or affiliate temporarily in a comparable capacity. With an L-1, the holder can be paid for his/her services by the U.S. sub, branch or affiliate. Extensive documentation is usually required for L-1 applications. The person seeking an L-1 does not have to be a national of the same country as the country in which the foreign enterprise is formed. The L-1 is tied to the particular U.S. employer (subsidiary, branch or affiliate of the foreign company), meaning that the holder cannot work for another U.S. employer. By filing a special application, the spouse of L-1 visa holder can receive a visa permitting the spouse to work in the USA.

The “H” Category Visas. 1. The H-1B: The applicant must have professional level qualifications for a professional level position in the USA. Usually, this means that the position typically requires a baccalaureate (university) degree or an equivalent combination of education and experience. State licensure, if required to practice in that field, is also necessary. Applying for and receiving labor certification from the U.S. Department of Labor is also required for the H-1B. In the application, the employer must attest that wages offered are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or alternatively, pay the prevailing wage for the occupation in the area of intended employment, whichever is greater. Employers are not required to seek and advertise for local talent before—foreign H-1B workers can be hired even when a qualified U.S worker wants the job, and a U.S. worker can be displaced from the job concerned in favor of a foreign worker. The H-1B visa is tied to the particular employer seeking the visa for the individual, meaning that the visa holder cannot work for another U.S. employer. Members of the immediate familiar of the visa holder (spouse and children under 21 years of age) receive H-4 visas but cannot work in the USA. There are annual numerical caps for H-1B visas. The normal duration of H-1B stay is 3 years, extendable to 6 (and possibly beyond under particular circumstances). The H-2: Generally, the H-2 is for non-U.S. national workers or technicians needed to perform specific tasks in the States. One example might be to install and teach other workers of a U.S. company how to operate certain machinery. That U.S. company may pay the H-2 holder for his/her services. As with the H-1B, labor certification is required. The H-3: The H-3 is for an alien coming to the USA to receive training from a U.S. employer.