In these days of globalization, many multinational companies wish to transferexecutives and managers from affiliated companies to the US for limited “tours of duty”.
Depending on:
- the professional background of the proposed transferee,
- the length of the proposed stay, and
- the nationality of the foreigner, different options are available for the U.S. based employer.
These options are all contained in the Immigration and Nationality Act §101(a) (15), (8 U.S.C. §1101(a) (15)) and are typically referred to by the letter and number that denote their sub-section in that Act.
B-1 visas. These are used by foreign business travelers during a brief stay (not to exceed 1 year). These visitors are not allowed to engage in gainful employment and U.S. employers cannot compensate these visitors.
Travelers coming to the U.S. for tourism or business for 90 days or less from qualified countries (including Western Europe, Japan, Australia and New Zealand) may be eligible to visit the U.S. without a visa if they meet the visa waiver program requirements.
Company-sponsored employment authorization for foreign nationals can be divide into two categories:
- Non-immigrant status: a specific employer may seek authorization to hire a foreign national for a limited period of time; and
- Immigrant status or permanent residency: an employer may sponsor a foreign national for permanent residence.
Some visa categories do allow the transitioning from Non-immigrant (Temporary) Residency Status to Immigrant (Permanent) Residency Status, but not all do.
Each visa category has very specific regulations which must be followed closely, mostof which require coordination between the United States Citizenship and ImmigrationServices (part of the Department of Homeland Security) and other U.S. governmentdepartments, such as the Labor Department. Timelines are extremely important anddocumentation can be voluminous.
The key visa categories for the temporary non-immigrant employment offoreign nationals are L-1A (Multinational Managers/Executives), L-1B (SpecializedKnowledge), H-1B (Professional Workers), and TN Application (Canada and Mexico).
Usually spouses and children can accompany the worker and live in the U.S., but cannotbe employed (and common law domestic partners are not allowed to benefit from aprimary work permit). These visas are time limited and are not a good solution if theemployee is meant to stay for more than a few years.
L-1 Visa. There are four statutory requirements that a U.S. company and foreign national employee must meet when filing the L-1 visa:
- must have worked for the transferring company outside U.S. for 1 continuous year over last 3 ;
- must be an executive or a manager (L-1A) or have specialized knowledge (L-1B);
- transferring company must be active before and after the transfer; and
- U.S. company must be a parent, branch, subsidiary or affiliate of the transferring company
H-1B Visa. This visa is available to individuals:
- whose services are sought by a U.S. employer in a “specialty occupation” but who do not qualify for a L1 Visa.
- Specialty occupations are jobs that require at least a bachelor’s degree in a specific field.
- The company can hire a foreign national for up to six years with an option to extend this temporary status beyond the six-year limit if the company is in the process of sponsoring the foreign national for permanent residence.
- The annual quota of H-1B visas available is a critical part of the H-1B filing strategy (although not for the past two years, 2009 and 2010). These visas are effective as the October 1 of a given year.
TN Status. Under the North America Free Trade Agreement (“NAFTA”), qualifyingCanadian and Mexican citizens can enter the U.S. to work temporarily at a professionallevel as TN non-immigrants. To qualify for TN status, the offered position must fit withinone of the listed professions set forth in 8 C.F.R. Sec. 214.6(b)-(c) Appendix 1603.D.1..
This area of law is constantly evolving so consulting with an immigration attorney whodeals with these issues on a daily basis is a good idea.
Resources designed to assist you in addressing Employment Basedauthorization to hire foreign nationals to work in the United States for alimited period of time include the following:
