United States: Doing Business In The USA: Immigration Law

Foreign employers who wish to send personnel to the United States either for business meetings or to work for extended periods of time must obtain visas for their employees.

There are two main visa categories:

Nonimmigrant visas—these permitting foreign nationals to enter the U.S. temporarily.

Immigrant visas—these permitting foreign nationals to live in the U.S. permanently.

The vast majority of foreign nationals sent by foreign employers to the U.S. for business or employment enter on nonimmigrant visas. Depending on the visa, these may permit the individual to remain in the U.S. for anywhere from three months to many years.

This chapter provides an overview of the types of nonimmigrant visas available to foreign nationals for purposes of business and employment in the U.S. It also discusses an employer’s legal obligations in employing foreign nationals in the U.S.

The immigration laws in the United States have been administered by various U.S. government departments and agencies, including the Immigration and Naturalization Service (INS), a branch of the U.S. Department of Justice; the U.S. Department of State; and the U.S. Department of Labor. In some cases, these U.S. government agencies are assisted by state government departments such as the state departments of labor. Depending on the type of visa desired, application must be made to one or more of these entities. Visas are obtained from the U.S. embassy or consulate in the foreign country. However, depending on the type of visa requested, approvals must be obtained from other U.S. government departments and the INS in the U.S. before application may be made to the U.S. embassy or consulate abroad for the visa.

As of March 1, 2003, the INS will become part of the Department of Homeland Security, and will change its name to the Bureau of Citizenship and Immigration Services (BCIS), which will perform the same functions as the INS did.

The B-1 visa is available to individuals entering the U.S. as temporary visitors for business, provided they continue to be employed by a non-U.S. company outside the U.S., receive no remuneration in the U.S. (except for certain incidental expenses), and are not working in the U.S. Individuals entering the U.S. under B-1 visas may attend business meetings and seminars, negotiate contracts, solicit orders for goods manufactured outside the U.S., and seek investment opportunities.

Although B-1 visas may be issued for periods ranging from one month to several years, the period of initial admission to the U.S. can be granted for no more than one year. Typically, individuals entering the U.S. under B-1 visas will be admitted into the U.S. for no more than six months at a time. Once in the U.S., it is possible to obtain extensions of stay for additional six-month periods.

The B-2 visa is available to individuals who seek to enter the U.S. for pleasure. Like the B-1 visa, a B-2 visa may be issued for a period ranging from one month to several years, and the maximum period of stay an individual may be initially granted can be no more than one year. However, entries are typically allowed for periods of no more than six months. B-2 visas may be issued to spouses and children who accompany B-1 business visitors, or to dependents of other nonimmigrants, if they do not qualify for another visa.

The Visa Waiver Program (VWP) allows individuals from certain countries who would otherwise be qualified for business (B-1) or pleasure (B-2) visitor visas to enter the U.S. for a period of up to 90 days without obtaining visas. To qualify for the VWP, an individual must enter the U.S. with a return trip ticket, have an unabandoned foreign residence, not be entering the U.S. for the purpose of employment and not receive any remuneration in the U.S. VWP participants are not permitted to extend their period of stay or change their status in the U.S.

Persons from the following countries are currently eligible to enter the U.S. under the VWP: 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.

E visas, otherwise known as treaty trader (E-1) or treaty investor (E-2) visas, are available to certain executives, managers and individuals with essential skills who seek to enter the U.S. pursuant to the provisions of a treaty of commerce and navigation between the U.S. and the foreign state of which they are a national.

To obtain an E-1 visa, an individual must be entering the U.S. as a manager, executive or employee with specialized knowledge of a company that carries on substantial trade, principally between the U.S. and the foreign state.

To obtain an E-2 visa, an individual must be entering the U.S. as a manager, executive or employee with specialized knowledge of an enterprise in which the individual or the individual’s employer has invested or is actively in the process of investing a substantial amount of capital.

A company wishing to send an employee to the U.S. under E visa status must first file an application with a U.S. embassy or consular post in the company’s home country to register the company as an organization eligible for the issuance of E visas. The validity of E visas depends on reciprocity provisions with the foreign country. For many countries, E visas are valid for up to five years. Typically, individuals who hold E visas are admitted into the U.S. for an initial period of two years. Extensions of stay are available in two-year increments, and there are no limitations on the number of extensions that can be granted as long as the individual continues to meet the requirements for E-1 or E-2 status. E-1 and E-2 visas are available to the spouse and minor children of E-1 and E-2 visa holders.

The H-1B visa is available to persons coming to the U.S. to work in a "specialty occupation," that is, an occupation that requires the attainment of a bachelor’s degree (or its equivalent) in a body of specialized knowledge as a minimum requirement for entering the occupation in the U.S. If the specialty occupation requires licensure, the individual must possess full state licensure to obtain the visa.

To obtain an H-1B visa for a future employee, an employer must make certain attestations on a Labor Condition Application (LCA) and post the LCA at its place of business. On the LCA, the employer must attest that (1) the H-1B nonimmigrant will be paid the higher of the prevailing wage for the position in the region or the actual wage paid in the workplace; (2) employment of the H-1B nonimmigrant will not adversely affect the working conditions of workers similarly employed; (3) at the time of filing, there is no strike or lockout in the alien’s occupation at the workplace; and (4) the employer has provided notice of the filing of the LCA to the applicable collective bargaining representative or, if there is no such representative, it has conspicuously posted the LCA in the workplace. The employer must also keep certain records and make them available for public inspection.

The LCA must be approved by the U.S. Department of Labor as a precondition to obtaining approval of an H-1B petition with the BCIS. After the BCIS has approved the employer’s H-1B petition, the individual may apply for the visa at a U.S. embassy or consulate abroad. H-1B visas are available for an initial period of up to three years, and they may be renewed for a period of up to three additional years. The spouse and minor children of H-1B visa holders may obtain H-4 visas.

The H-3 trainee visa is available to individuals who enter the U.S. to obtain training in a profession for which training is unavailable in the individual’s home country. The employer’s training program may include classes, seminars and observation and must be designed to benefit the individual in pursuing a career outside the U.S. The H-3 nonimmigrant may not engage in productive employment in the U.S. unless such employment is incidental to and necessary to the training.

H-3 visas may be granted for up to two years. A petition for an H-3 visa must first be filed with the BCIS in the U.S. Upon approval, the individual may apply for the visa at a U.S. embassy or consular post in their home country. H-4 visas are available to the spouse and minor children of H-3 visa holders.

The L-1 intracompany transferee visa is available to executives, managers and individuals with specialized knowledge who have worked for a non-U.S. employer outside of the U.S. for one continuous year within the preceding three years and are entering the U.S. to work for the non-U.S. employer, or an affiliate thereof, in executive, managerial or specialized knowledge capacities.

The U.S. employer must file a petition on behalf of the individual with the BCIS in the U.S. After the BCIS has approved the petition, the individual may apply for a visa at a U.S. embassy or consulate abroad.

L-1 visas are available for an initial period of up to three years. L-1 visas for executives and managers may be extended for a period of up to four additional years; for individuals with specialized knowledge, L-1 visas may be extended for up to two additional years. The spouse and minor children of L-1 visa holders may obtain L-2 visas.

The O-1 visa may be granted to persons who have extraordinary ability in the sciences, arts, education, business or athletics and whose achievements have been nationally or internationally recognized in their field. O-1 visas are also available to persons involved in motion picture or television productions—including producers, directors and actors—who have a demonstrated record of extraordinary achievement.

O-1 visas are generally given to individuals who come to the U.S. to perform services relating to a specific event or series of events, which can last for up to three years initially. For example, O-1 status may be appropriate for a prominent scientist coming to spend a sabbatical year at an American university; for a world-renowned artist to put on an exhibit at a U.S. museum or gallery; or for a prominent business executive to engage in a special project.

Petitions for O-1 visa status must be supported by a written advisory opinion or "consultation" from an appropriate "peer group"—a group or organization that is comprised of practitioners of the individual’s occupation or, in certain cases, an appropriate labor organization.

O-1 petitions can be approved for an initial period of up to three years, and may be extended in one-year increments thereafter. The accompanying spouse and minor children of O-1 visa holders may be granted O-3 visas.

Certain persons who have been in the U.S. as students or exchange visitors are eligible for temporary employment either during or upon completion of their degree or exchange programs.

1.9.1. F-1 Practical Training. The F-1 visa is granted to students enrolled at qualifying U.S. educational institutions, such as a college or university, for a full course of study. F-1 students who are in a bachelor’s, master’s or doctoral degree program may obtain employment authorization for temporary employment for up to one year during vacation periods or after completion of their course of study. Known as "practical training," such employment must be related to the student’s major area of study. This means that an employer may hire a foreign student directly out of college for a period of up to one year under the practical training component of the F-1 visa.

The spouse and minor children of F-1 visa holders may obtain F-2 visa status.

1.9.2. J-1 Practical Training. Students who come to the U.S. to participate in a recognized exchange visitor program may hold J-1 exchange visitor visas and may be eligible, as part of or upon completion of their exchange program, for up to 18 months of practical training with an employer in the U.S. J-1 visas may also be granted to trainees who are coming to the U.S. to receive training in their specialty for a period of up to 18 months. Employers in the U.S. may thus employ J-1 trainees under the auspices of a sponsoring J-1 program recognized by the U.S. Department of State for up to 18 months.

The spouse and minor children of J-1 visa holders may obtain J-2 visa status.

The U.S. immigration laws prohibit employers from employing persons who are not authorized to work in the U.S. and require employers to maintain records concerning their compliance with the immigration laws. Civil and criminal penalties may be imposed on individuals who circumvent the immigration laws.

The Immigration Reform and Control Act of 1986 (IRCA) prohibits an employer from hiring or continuing to employ unauthorized aliens. It also requires employers to verify employees’ authorization to work in the U.S. by directing employers and employees to complete an I-9 form; employers are required to inspect employees’ employment authorization and identity documents. IRCA also sets forth various record keeping requirements for the employer and prohibits discrimination in hiring, discharge and recruiting for a fee on the basis of citizenship status and national origin.

Penalties for noncompliance with record keeping requirements can range from $110 to $1,100 per violation. Penalties for employing unauthorized aliens can range from $275 to $2,200 for first violations; from $2,200 to $5,500 for second violations; and from $3,300 to $11,000 for three or more violations. In addition, criminal penalties can be imposed for a pattern or practice of violations. Violation of the antidiscrimination provisions of IRCA can lead to awards of reinstatement, backpay, civil fines and attorneys fees.

It is also unlawful for any person or entity knowingly to forge any document, or possess or use any forged document, for the purpose of satisfying IRCA’s work authorization verification requirements. An employer who knowingly accepts fraudulent documents for I-9 purposes can be subject to both civil and criminal penalties. Civil penalties for document fraud can range from $250 to $5,000 (depending on the number of violations) for each fraudulent document or proscribed activity.

The immigration laws also prohibit anyone from encouraging a person to enter the U.S. unlawfully, bringing a person into the U.S. unlawfully, or harboring or transporting an illegal alien into the U.S. Anyone violating these laws is subject to criminal penalties and to government seizure of any vessel, vehicle or aircraft used to bring in, harbor or transport an illegal alien to or in the U.S.

Experienced business immigration lawyers can assist employers in obtaining the appropriate visas for their incoming staff and advise employers on how to comply with applicable immigration laws concerning the employment of U.S. citizens, permanent residents and expatriates. In addition, to ensure ongoing compliance with U.S. immigration laws, employers should perform internal audits of their immigration and IRCA procedures with the assistance of counsel.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.