FAQ

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Admission to the United States

What is ESTA?

The Department of Homeland Security (“DHS”) has published an Interim Final Rule amending its regulations by authorizing Customs and Border Protection (“CBP”) to collect a fee for VWP visitors utilizing the ESTA system for travel to the United States and for travel promotion. The ESTA program gathers data previously requested on Form I-94W, Arrival/Departure Record for aliens seeking admission to the United States under the VWP. This data is evaluated by CBP to determine the eligibility of citizens and eligible nationals of VWP countries to travel to the United States and whether such travel poses a law enforcement or security risk. This determination is made by CBP when a VWP visitor submits an ESTA request before traveling to the U.S. A travel determination made under ESTA remains, with certain exceptions, valid for two years and may be used for multiple applications for admission.

CBP introduced the ESTA system in order to comply with section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007. The goal of the ESTA is to provide greater efficiencies in the screening of international travelers by allowing CBP to identify subjects of potential interest before they travel to the U.S. CBP believes the introduction of ESTA increases security and reduces traveler delays upon arrival at U.S. ports of entry.

A travel authorization issued under ESTA is not a determination of admissibility to the U.S., nor is it a determination of eligibility to receive a visa. Aliens refused a travel authorization under ESTA are not eligible to travel to the U.S. under the VWP. Such aliens remain eligible, however, to apply for a visa at a U.S. Consulate. An alien planning to travel to the U.S. with a visa is not required to obtain an ESTA determination.

The Travel Promotion Act (“TPA”) of 2009 was enacted on March 4, 2010 mandating that DHS implement a user fee for the ESTA system in accordance with section 217(h)(3)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. 1187(h)(3)(B). The TPA also requires a travel promotion fee of $10.00 each travel authorization. In addition, the TPA requires an unspecified operational fee to cover the cost of establishing and administering the ESTA system. DHS determined the cost of establishing and administering the ESTA to be approximately $4.00 per application and established an initial operational fee of that amount. Effective September 8, 2010 ESTA fee required by the TPA is $14.00.

Can Customs and Border patrol (CBP) correct or replace a Form I-94, arrival/departure record to allow a longer period of Admission?

Customs and Border Protection (CBP) determines whether a person is eligible for admission and for how long he may be admitted to the United States. A nonimmigrant alien applying for admission normally will be admitted for a period of time no longer than the expiration date of his passport. When a nonimmigrant alien applies for admission to the U.S. with a valid visa that extends beyond the passport’s expiration, CBP may admit the nonimmigrant alien only through the expiration date of the passport rather than the visa expiration date. A question arises whether CBP will correct or issue a new Form I-94 with a new expiration date if the alien obtains a new passport.

CBP is required to correct a Form I-94 if it bears a mistake that was made by CBP. The correction is made by a CBP officer in a deferred inspection procedure. A Form I-94 issued to correspond to a passport expiration date, however, is not a CBP error. Therefore, CBP is not required to correct or replace such a Form I-94.

Furthermore, CBP is supposed to issue a new Form I-94 only upon admission of a nonimmigrant alien. Nevertheless, it appears that during deferred inspection CBP officers at some ports of entry will correct or replace a Form I-94 with a new expiration date if the alien obtains a new passport after admission to the U.S. This practice is not uniformly followed by CBP officers during deferred inspection and appears to be the exception to the general CBP practice.

Notably, a nonimmigrant alien is not maintaining lawful immigration status after the expiration date indicated on the Form I-94 if he or she has obtained a new passport. Before the expiration date of the existing Form I-94, the nonimmigrant alien either must depart the U.S. and re-apply for admission or file an application for extension of status. We acknowledge that either of these options may involve a financial hardship due to travel expenses or filing fees. Asking CBP to direct deferred inspection officers to issue corrected or replacement Forms I-94 in such circumstances, however, does not appear to be a viable alternative at this time.

How do I notify USCIS of my change of address?

U.S. lawful permanent residents and nonimmigrants who are in the U.S. for 30 days or longer must formally notify the U.S. Citizenship and Immigration Services (USCIS) of any changes to their home address within 10 days of moving.

All changes of address must be reported either by completing an online Form AR-11 Change of Address on the USCIS website or by mailing Form AR-11, Alien’s Change of Address Card to the USCIS address listed on the form.  If mailing a Form AR-11 Change of Address Card, the form should be sent by certified mail, return receipt requested.  To access the online change of address tool, click here: Online Change of Address.

Individuals with pending petitions or applications must also separately notify the USCIS of their change of address. If completing the online change of address form, as mentioned above, an individual can also update his or her address on any application pending with the USCIS by entering the receipt number on the designated section of the electronic Form AR-11. Alternatively, it is possible to notify USCIS of the address update for pending petitions/applications by mailing a written notification including a copy of the Form I-797 receipt notice for the pending application or petition, or the individual may notify USCIS of the address update for pending petitions/applications by calling the USCIS National Customer Service Center at 1-800-375-5283.

What is a visa?

A visa is a document that allows a foreign national to apply for admission to the United States. A visa does not guarantee admission to the United States, and a visa is different from “status” (the length of time an individual may remain in the United States), which is governed by the Form I-94 Arrival/Departure Record for nonimmigrants.

There are two types of visas, nonimmigrant and immigrant. The nonimmigrant visa is issued to individuals who intend to come into the U.S. for a temporary period of stay for a specific purpose. The immigrant visa is issued to individuals who intend to live and work permanently in the U.S. Individuals admitted with immigrant visas obtain lawful permanent resident cards (greencards) after arrival and are called lawful permanent residents.

What is a Form I-94 Arrival/Departure Record?

The Form I-94 Arrival/Departure Record is the document that governs a nonimmigrant’s ability to lawfully remain in the United States. The Form I-94 is created by U.S. Customs and Border Protection (CBP) when a nonimmigrant is admitted to the U.S.  On May 1, 2013, CBP began implementing its plan to automate Form I-94 admission records for certain nonimmigrants arriving in the United States.  Nonimmigrants arriving at air and sea ports will no longer receive a paper Form I-94, Arrival/Departure Record.  Instead, CBP will place a stamp and write the class and period of admission in the passports of such individuals.  Nonimmigrants arriving at a land border will continue to receive a paper Form I-94.

Nonimmigrants can access and, if desired, print the electronic record of admission created by CBP at www.cbp.gov/I94.  There is no legal requirement that nonimmigrant aliens access and print their Form I-94.  The passport stamp and handwritten notation of class and term of admission will also be proof of lawful status.

If an individual decides to remain in the U.S. beyond the date on the Form I-94, he or she must file a petition for an extension of stay with U.S. Citizenship and Immigration Services (USCIS) prior to the expiration of the Form I-94.

 

May an individual apply for admission to the U.S. as a business visitor during the pendency of a petition that allows for employment in the U.S.?

A foreign national whose employment abroad requires a trip to the U.S. may travel to the U.S. on a business visa (B-1) or under the visa waiver program, but the foreign national must not assume any of the responsibilities of the U.S. position while present as a business visitor. Foreign nationals admitted as business visitors are not permitted to engage in local employment in the U.S.  In addition, the foreign national must remain on the payroll of the foreign company while present as a business visitor.

In the event a foreign national applies for admission to the U.S. during the pendency of a petition that allows for U.S. employment, he or she will need to be able to clearly explain to the U.S. Customs and Border Protection (CBP) officer the legitimate business visitor activities in which he or she will engage.  The CBP officer will question the foreign national regarding the purpose of his or her visit, and the CBP officer may particularly scrutinize the application for admission, given the pendency of the petition that authorizes employment.

 

 

 

Employment Verification and Compliance

What are the civil and criminal laws affected by employment verification requirements?

The Immigration Reform and Control Act of 1986 prohibits employers from “knowingly” hiring or continuing to employ unauthorized workers. The law’s implementing regulations designate the Form I-9, Employment Eligibility Verification Record as the means employers must use to document the identity and employment eligibility for all post 1986 employees. Employers who disregard this law and fail to properly complete and retain Forms I-9 for post 1986 employees risk facing civil exposure and/or criminal prosecution. In addition, the employer may be debarred from receiving future federal contracts and/or government benefits.

The government takes the position that “knowingly” hiring or continuing to employ includes “actual knowledge” and “constructive knowledge.” It should be noted that the current trend is for the government and Courts to broaden the scope of situations leading to “constructive knowledge.”

The significance and importance of properly completing and retaining Forms I-9, Employment Eligibility Verification Records should not be underestimated. Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security, identified the Form I-9 audit as the most important administrative and investigative tool in building a criminal case against an employer. Employers should be aware that included in the government’s power to investigate are actions such as wiretapping, use of informants and cooperative witnesses, interrogations, seizure of documents and people, detention and questioning, administrative subpoenas (the government does not need a magistrate to issue the subpoena), warrantless arrests, seizure of real property, financial assets and documents, seizure of payroll and employment records, etc. Based on the information obtained from the Forms I-9, other subpoenaed documentation, (pay roll records, tax returns, Profit and Loss Statements, invoices, bills of lading, etc.) wiretapping, interviews with informants, etc., both ICE and the DOL bring criminal charges against employers, not only for knowingly hiring or continuing to employ unauthorized workers, but also for making false statements in Forms I-9, knowingly accepting fraudulent documents, harboring undocumented workers, smuggling undocumented workers, identity theft, money laundering, etc.

Various departments and agencies within the federal government are charged with enforcing the Immigration Reform and Control Acts’ prohibitions, such as the Department of Homeland Security (comprised of the United States Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE)); the Department of Labor (Employment Standards Administration’s Wage and Hour Division) and the Department of Justice.

Over the past few years all these departments and agencies, most notably ICE and DOJ, have expanded their enforcement activities and prosecutorial decisions to bring criminal charges against employers. Past governmental investigations unequivocally document that businesses in the critical infrastructure, public safety, national security, construction, food processing, restaurant, hotel and agricultural industries are especially vulnerable. It appears likely that the trend of aggressive enforcement and prosecution will continue or increase in the future. In this environment, it is vitally important for companies to establish and maintain sound Form I-9 Employment Eligibility Verification compliance practices.

Can a fiancé or spouse of a U.S. Citizen living abroad come to the U.S. and begin employment?

As a general rule, an alien must be authorized by U.S. Citizenship and Immigration Services (USCIS) in order to engage in employment in the U.S.  An alien may seek either resident alien (“green card”) status which confers indefinite permission to engage in employment, or temporary employment authorization based on a particular nonimmigrant visa category. 

The fiancé of a U.S. citizen is not automatically authorized to engage in employment in the U.S.  Once married to a U.S. citizen and present in the U.S., an alien may be eligible to apply to adjust his status from that of a temporary nonimmigrant alien to that of a permanent resident alien.  This process takes approximately 6 to 8 months depending on the backlog at the local USCIS office with jurisdiction over the alien’s place of residence in the U.S.  The alien can apply for an interim employment authorization document (EAD) while waiting to become a resident alien.  It takes USCIS approximately 90 days to issue an EAD.

If an alien enters the U.S. as a visitor, whether with a B-1/B-2 visa or as a visitor without a visa, USCIS expects that person to intend only a temporary stay in the U.S.  If such a person applies for adjustment of status from visitor to resident alien shortly after arriving in the U.S., USCIS may view such a series of events as evidence that the alien must have misrepresented the intended purpose of his visit at the time of applying for admission.  This could lead to serious, negative consequences. 

An alternative course of action may be to have the alien apply for a nonimmigrant visa that authorizes employment in the U.S.  Such an alien worker would be authorized to engage in employment immediately upon entering the U.S.  If, after arriving in the U.S., the individual subsequently decides to apply for resident alien status, he may do so.  While waiting to become a resident alien, the alien would continue to be authorized to engage in employment based on his nonimmigrant worker status.

Immigrant Visas

Immigrant Process (US Lawful Permanent Residence)

Can a fiancé or spouse of a U.S. Citizen living abroad come to the U.S. and begin employment?

As a general rule, an alien must be authorized by U.S. Citizenship and Immigration Services (USCIS) in order to engage in employment in the U.S.  An alien may seek either resident alien (“green card”) status which confers indefinite permission to engage in employment, or temporary employment authorization based on a particular nonimmigrant visa category. 

The fiancé of a U.S. citizen is not automatically authorized to engage in employment in the U.S.  Once married to a U.S. citizen and present in the U.S., an alien may be eligible to apply to adjust his status from that of a temporary nonimmigrant alien to that of a permanent resident alien.  This process takes approximately 6 to 8 months depending on the backlog at the local USCIS office with jurisdiction over the alien’s place of residence in the U.S.  The alien can apply for an interim employment authorization document (EAD) while waiting to become a resident alien.  It takes USCIS approximately 90 days to issue an EAD.

If an alien enters the U.S. as a visitor, whether with a B-1/B-2 visa or as a visitor without a visa, USCIS expects that person to intend only a temporary stay in the U.S.  If such a person applies for adjustment of status from visitor to resident alien shortly after arriving in the U.S., USCIS may view such a series of events as evidence that the alien must have misrepresented the intended purpose of his visit at the time of applying for admission.  This could lead to serious, negative consequences. 

An alternative course of action may be to have the alien apply for a nonimmigrant visa that authorizes employment in the U.S.  Such an alien worker would be authorized to engage in employment immediately upon entering the U.S.  If, after arriving in the U.S., the individual subsequently decides to apply for resident alien status, he may do so.  While waiting to become a resident alien, the alien would continue to be authorized to engage in employment based on his nonimmigrant worker status.

Nonimmigrant Visas

What visas are available to train foreign workers in the US?

Training of foreign workers in the U.S. is accommodated by three visa categories under U.S. immigration law. These include the H-3 trainee, J-1 exchange visitor and B-1 business visitor categories. Each is briefly discussed below. The advantages and disadvantages of each category are evaluated following the description of the three categories.

H-3 Trainees

The H-3 trainee visa category may be used to bring an alien worker to the U.S. for up to two years to receive commercial, professional or industrial training that is not available in his normal place of employment abroad. The trainee may not be placed in a normal productive job position that would displace a U.S. worker but may engage in productive activities related to the training that will benefit the trainee’s career outside the U.S.

In order to obtain H-3 classification for a trainee, a company in the U.S. first must file a petition with the U.S. Citizenship and Immigration Services (USCIS). The petition must be accompanied by detailed information demonstrating that the company has a structured and supervised training program indicating the proportion of time devoted to productive employment, classroom instruction and hands-on work. The U.S. company must explain why the training is not available in the alien’s home country and must be provided in the U.S.

The USCIS takes approximately two to three months to adjudicate an H-3 petition. The USCIS interprets and applies U.S. immigration law in an extremely restrictive manner. When the USCIS believes that more information is required before approving a petition it will send a request for evidence (RFE). This occurs with a statistically significant number of petitions, even when evidence presented should satisfy the applicable legal standard of proof. If the USCIS issues an RFE, the time required for adjudication of a petition may exceed four months from the date of filing.

Upon approval of a petition, the USCIS issues a Notice of Action that may be presented at a U.S. Consulate to obtain an H-3 visa which may be used to apply for admission to the U.S. in H-3 status. Citizens of Canada are exempt from the usual requirement of obtaining an H-3 visa and may apply directly to the U.S. for admission in H-3 status to receive training.

J-1 Exchange Visitors

The U.S. Department of State (DOS) is authorized to designate sponsors of exchange visitor programs to provide foreign nationals with opportunities to participate in educational, cultural and training programs in the United States.

1. Sponsor Eligibility

Individuals and reputable organizations that are citizens of the United States may apply to the DOS for designation as an exchange visitor sponsor. A variety of commercially operated exchange visitor sponsorship programs provide practical training to business professionals, technicians or skilled workers. These provide a J-1 visa option to entities that do not qualify as an exchange visitor sponsor due to foreign ownership or who wish to avoid the cost and regulatory responsibilities associated with being a program sponsor.

2. Program Requirements

Trainees may be brought to the United States under an exchange visitor program to enhance their skills and to improve their knowledge of American techniques, methodologies or expertise within the individual’s field of endeavor. The program sponsor must provide a detailed training plan with a defined objective for the trainee, ensuring continuous supervision and periodic evaluation of the trainee. A program may include classroom instruction, seminars, rotation through several departments, on-the-job training, and attendance at conferences.

Use of the exchange visitor program to fill routine staff requirements is strictly prohibited. A trainee may gain potential experience through hands-on employment, however, as a component of a bona fide training program.

Organizations that operate as commercial exchange visitor sponsors typically collaborate with individual companies to identify and select prospective exchange visitors for program participation. The training takes place at the facilities of individual companies.

The period of training for each exchange visitor must be no less than three weeks and may last up to 18 months.

3. Sponsor Application Procedure

Any individual or entity meeting the eligibility requirements may apply to the DOS for designation as a program sponsor. The application must provide a detailed description of the proposed exchange program and demonstrate the applicant’s ability to comply with the DOS requirements. The application must be accompanied by evidence of the legal status of a corporation, partnership or other legal entity and include evidence of financial responsibility and certification that the individuals to be designated as Responsible Officers are citizens of the United States.

Upon approval of the application for exchange visitor program sponsorship, the DOS will authorize the sponsor to issue the documentation needed to bring exchange visitors to the United States. The designation as an exchange visitor sponsor is valid for a renewable period of up to five years.

Due to the complex nature of the application process and the detailed, on-going responsibilities associated with being a program sponsor, companies that train only a few workers each year usually utilize the services of a commercially available exchange visitor sponsor.

4. Application Procedure by the Alien

An exchange visitor sponsor issues documentation needed to obtain a J-1 visa directly to an exchange visitor alien. Upon issuance of the visa by the U.S. consulate, the exchange visitor may be admitted to the United States in J-1 status. Upon admission to the United States, an exchange visitor is authorized to remain for the duration of the designated program plus a grace period of thirty days in which the alien is to depart the United States.

Citizens of Canada are exempt from the usual requirement of obtaining a J-1 visa and may apply directlyto the U.S. for admission in J-1 status to receive training.

5. Two-Year Home Country Physical Presence Requirement

Some exchange visitors are subject to a requirement that they return to their home country for a period of two years on completion of the J-1 program. An alien may be subject to the two-year home country physical presence requirement if the program was financed in whole or in part, directly or indirectly, by an agency of the U.S. government or by the government of the alien’s country of nationality or last legal permanent residence. An individual who is a national or resident of a country that has designated that person’s skills or field of knowledge as a shortage occupation also may be subject to the two-year home country physical presence requirement. Finally, while not applicable here, an alien who participated in graduate medical education or training in the United States while in J-1 status is subject to the two-year home country physical presence requirement. An exchange visitor, who is subject to the two-year home country physical presence requirement but has not fulfilled it, may not change his status or obtain a visa to enter the U.S. as an L-1 intracompany transferee, an H-1B specialty worker or in lawful permanent resident status until the requirement is satisfied.

6. Waiver of the Two-Year Home Country Physical Presence Requirement

An exchange visitor subject to the two-year home country physical presence requirement may request a waiver of that requirement. Waivers may be sought for a variety of reasons, including persecution of the alien should he return to his country of residence abroad, exceptional hardship to the U.S. citizen or lawful permanent resident spouse or child of the exchange visitor, and the absence of an objection by the exchange visitor’s home country government, among others.

B-1 Business Visitors

An alien may apply for admission to the United States as a business visitor to receive training. Citizens of about three dozen countries may be admitted to the U.S. as visitors without visas under the Visa Waiver Program (VWP). Citizens of Canada are exempt from the visa requirement under separate statutory authority. Citizens of all other countries must apply for a visitor visa at a U.S. consulate abroad prior to seeking admission as a visitor at a port of entry.

An alien who would qualify for H-3 classification as a trainee may be eligible to be admitted to the U.S. as a business visitor if the alien will receive no salary or other remuneration from a U.S. source other than reimbursement for expenses incidental to his temporary stay. Accordingly, to qualify for training in the U.S. as a business visitor, an alien must remain on the payroll of the overseas employer.

No advance petition or application is required to apply for a visitor visa or to apply for admission to the U.S. in B-1 classification. To support an application for B-1classificaiton as a trainee, however, an alien must present a letter or statement describing in detail the training program and its schedule. This should be accompanied by evidence that the worker is regularly employed outside the U.S. and will depart the U.S. to apply the knowledge gained through the training program following its completion.

When an individual is required to obtain a visitor visa prior to applying for admission to the U.S. as a visitor, officers of the DOS at a U.S. Consulate abroad will make an initial determination of the individual’s eligibility for classification as a visitor. Upon issuance of a B-1 business visitor visa, an alien trainee may apply for admission to the U.S.

Officers of the U.S. Customs & Border Protection (CBP) make an independent evaluation of an individual’s eligibility to be admitted to the U.S. as a business visitor. When an individual is eligible to apply for admission to the U.S. without a visitor visa, either under the VWP or as a citizen of Canada, a CBP officer will make the initial determination of the alien’s eligibility for admission as a business visitor.

Upon satisfying a CBP officer that he or she is admissible as a visitor to receive training in the U.S., an alien may be admitted for a period that is reasonable for the completion of the stated purpose of the visit up to one year. If additional time is required, the alien may file an application for extension of status with the USCIS.

Recommendations

The discussion above gives a brief description of the three visa categories that accommodate training of foreign persons in the United States. As noted at the beginning of this letter, each category has certain advantages and disadvantages. We believe for the reasons explained below that, when individual circumstances support use of the B-1 business visitor visa category, it is the most efficient and cost effective solution for companies to train foreign workers in the U.S.

H-3 Advantages and Disadvantages

Use of the H-3 visa category requires a company to first file a petition with the USCIS. Once the USCIS approves an H-3 petition, the Notice of Action issued provides a certain measure of certainty that the trainee will be issued an H-3 visa and/or admitted by CBP. The CBP normally should not re-adjudicate a trainee’s eligibility to be admitted as a trainee once the USCIS has issued an approval notice.

The requirement of filing a petition with USCIS, however, requires a lead time of at least two months from the time a petition is filed until it is adjudicated. As a practical matter, this means that the decision to send a worker to the U.S. for training must take place three to five months before the training is expected to begin in order to allow sufficient time to prepare and file the H-3 petition, receive an approval, have the worker apply for a visa, if necessary, and be admitted to the U.S.

The USCIS currently adjudicates nonimmigrant petitions in a very rigorous, often arbitrary, manner. As a result, even thoroughly documented, highly meritorious petitions may be delayed by issuance of a request for additional evidence or denial by the USCIS.

We believe that the additional cost and time associated with the preparation and filing of an H-3 petition along with the uncertainty in the time taken by USCIS to adjudicate such a petition makes this visa category not the best option if others are available.

J-1 Advantages and Disadvantages

As may be gathered from the discussion above, the J-1 exchange visitor category involves a multi-stage process. Unless a company anticipates it will train a significant number of alien workers in the U.S., obtaining approval as an exchange visitor sponsor is not likely to be a cost effective option due to the many responsibilities imposed by DOS regulations. As a result, utilizing the J-1 category to bring trainees through a commercial exchange visitor program sponsor is the preferred procedure for all but the largest organizations.

Using a third party exchange visitor sponsor can be a faster and more reliable process than filing an H-3 petition with USCIS. The program sponsor is authorized by the DOS to issue the documentation needed to apply for a J-1 visa. Program sponsors usually are more accessible than USCIS personnel making it possible to have a constructive dialogue about the intended training and the trainee’s eligibility to participate.

Commercial exchange visitor sponsors charge a fee for their services which may range from $1500 to $2500 depending on the entity involved. This added cost is a factor that weighs against the J-1 category.

Companies should use the J-1 exchange visitor category with caution when trainees are residents of countries that have developing economies. Such trainees may become subject to the two-year home country residence requirement. Recognizing that companies normally should not use the J-1 visa category to train workers for positions in the U.S., plans sometimes change either while the worker is training or within two years after completing the training. If a worker is subject to the two year home country residence requirement, it may not be possible to find a visa solution until he or she has returned to the place of residence abroad for at least two years.

The cost of using a third party vendor and the possibility of subjecting a worker to the two year home country residence requirement make the J-1 category less desirable than the B-1 business visitor category, if it is available.

B-1 Business Visitor Advantages and Disadvantages

The primary advantages associated with use of the B-1 business visitor visa category to bring foreign workers to the U.S. for training are the lower costs and faster timeline associated with the application process.

There is no requirement to file a petition with the USCIS in advance of an application for a B-1 visa. Accordingly, there are immediate savings in government filing fees and attorney fees. In addition, the lead time between making a decision to train a worker and having him or her apply for the visa is greatly compressed. Essentially, the lead time is defined by the amount of time needed to assemble a description of the training program and additional supporting information needed to file a visa application at a U.S. consulate abroad.

Those workers who are visa exempt, either under the VWP or as citizens of Canada, have an even faster timeline. Such visa exempt trainees can present their application for business visitor classification concurrently with their application for admission to the United States.

The primary disadvantage of using the B-1 visa category for trainees is that the worker applies for admission without an advance approval of his or her status as a trainee. The decision concerning the individual’s eligibility as a trainee is made by a CBP officer at a land border or Pre-clearance station. While most CBP officers are reasonably well trained and accurately apply the law, on occasion, officers may be unfamiliar with the law or fundamentally misunderstand the information being presented to them. If this occurs, the trainee’s admission to the U.S. can be delayed.

In order to avoid unanticipated delay in the admission of a trainee as a business visitor, it is prudent to thoroughly document the purpose and expected duration of the trip each time an individual applies for admission to the U.S. Thorough documentation is appropriate regardless of whether a trainee is applying for admission with or without a B-1 visa in his or her passport. By furnishing the worker with documentation that demonstrates compliance with the legal requirements for admission as a trainee, the company maximizes the likelihood of admission and minimizes the possibility that a CBP officer may misapply the law.

In those situations where a CBP officer denies a meritorious application for admission as a business visitor, it is possible to speak by telephone with the officer or the port supervisor to explain the law or supplement the facts to the satisfaction of the officers involved. This option is not available when USCIS officers misapply the law or misconstrue the facts. When the USCIS makes an error when adjudicating an H-3 petition the only practical recourse is to file an administrative appeal or file a new H-3 petition. Consequently, while it is not possible to guarantee CBP officers would always make the correct decision concerning an application for admission in B-1 status to receive training, the process is fast and provides a means of rapid review in the event of an erroneous decision.

When weighing the advantages and disadvantages of the B-1 business visitor, H-3 trainee and

J-1exchange visitor visa categories, the cost and time savings enjoyed by using the B-1 visa category makes it the superior choice when a worker will remain on the payroll of the company outside the U.S. and will return to his or her employment abroad following the training in the U.S.

What is the best visa for employing a foreign worker in the United States?

The Best Visa to Transfer Employees to the United States
By Kenneth J. Harder
Dunbar Harder, PLLC

After making the decision to open an office in the United States, a foreign company may need to transfer key employees from abroad to start operations. Faced with the question of how to obtain employment authorization for key foreign workers, such companies ask how to identify the best visa category. The better question is, however, which is the best visa for a specific employee given a company’s specific business plans.

The following discussion provides an overview of some of the issues that should be considered to select the best visa category to accomplish a company’s objectives. It is a starting point for a conversation about the visa process rather than an exhaustive set of instructions applicable to all situations.

New Company Challenges

Companies that are in the process of establishing a presence in the U.S. and wish to send managerial or technical staff to start or run the company may confront challenges under U.S. immigration law. Current U.S. immigration law provides several visa categories that provide temporary or permanent residence and employment authorization for foreign workers in the United States. Each of these visa categories has advantages and disadvantages due to their distinct documentary and procedural regulatory requirements. Selecting the best visa category for a given set of circumstances usually results in saving both time and money for a company sending a key employee to the U.S. Consequently, it is usually better to make a final decision of which visa category is most efficient and cost-effective only after reviewing all the relevant documentation and information.

Business Visitor Classification

The simplest, quickest and least expensive way to send a worker to the United States is as a visitor without a visa under the Visa Waiver Program (“VWP”). A foreign worker may lawfully enter the U.S. as a business visitor to perform a wide range of services on behalf of a foreign employer. These include developing business opportunities, meeting with existing clients, signing contracts and completing steps to set up an affiliate in the United States.

There is no legal limit on the amount of time that a business visitor may present in the U.S. Those who enter under the VWP are limited on each trip to a 90 day stay but may re-apply for admission after departing the U.S. without any minimum stay abroad. A nonimmigrant alien presenting a B-1 Business Visitor visa may be admitted for an initial period of up to one year. More commonly, business visitors with a B-1 visa are admitted for six months with an option to extend their stay within the U.S. by filing an application with the U.S. Citizenship and Immigration Services (USCIS).

Once a worker begins to perform services for a U.S. affiliate or is assigned to a U.S. payroll, however, it is necessary to obtain a visa that authorizes employment in the U.S. A worker who will remain on the payroll of his foreign employer and perform services exclusively for that company is not required under U.S. immigration law to obtain a visa that authorizes employment even if he will spend an extensive but defined period of time in the U.S. Usually, it is advisable

for him to do so, however, to avoid the risk of being refused admission to the U.S. by a Customs and Border Protection inspector.

L-1 Visa Category

The L-1 category allows an alien to transfer from a company abroad to a company in the U.S. that is related by common ownership. The alien worker must have been employed abroad by the commonly owned company for at least 12 months as a manager, executive or specialized knowledge worker and be coming to the U.S. to perform such services.

The L-1 category requires a company to file a petition with the USCIS in the U.S. to classify the foreign worker as an alien eligible as an Intracompany Transferee. Currently, the USCIS takes approximately 60 days to adjudicate an L-1 petition. It is possible to request USCIS Premium Processing of an L-1 petition which yields a decision from the USCIS in a maximum of 15 days. The USCIS Premium Processing procedure, however, requires payment of an additional $1000.00 USCIS filing fee.

The initial period of L-1 eligibility for an employee of a new company (i.e. one that has been doing business in the U.S. for less than 12 months) is one year. At the end of the initial one year period in L-1 status, it would be necessary for the company to file a new petition with the USCIS to seek an extension of the worker’s L-1 status if the worker’s assignment will extend beyond the first year.

Once the USCIS has approved the L-1 petition, the worker must present a visa application at a

U.S. Consulate to obtain an L-1 visa. This process currently takes about one week at the U.S. Consulate in London. The L-1 visa allows the worker to apply for admission to the U.S. Once admitted to the U.S. with an L-1 visa an alien worker is immediately eligible to engage in employment.

H-1B Visa Category

The H-1B visa category allows a U.S. company to obtain the services of a professional level alien employee. The alien worker must have at least a four year university level degree or equivalent knowledge. The job to be filled by the alien professional must require a worker with a university-level degree or require unique, specialized or complex knowledge typically obtained through a degree program. The company seeking to employ the alien professional is not required to show that it has a pre-exiting pattern of doing business, has existing employees or has a relationship with a company abroad.

A numerical quota is imposed on the H-1B visa category. Demand for H-1B visas greatly exceeds the supply in most years. During robust economic times, H-1B visas are unavailable for most of the year. Visas are presently available under the H-1B quota but the supply may become exhausted at any time due to building demand.

The H-1B category requires a company to file an application with the U.S. Department of Labor and comply with certain record keeping requirements. The employer also must file a petition with the USCIS in the U.S. to classify the alien professional eligible as a Specialty Worker. Currently, the USCIS takes approximately 60 days to adjudicate an H-1B petition. It is possible to request USCIS Premium Processing of an H-1B petition which yields a decision from the USCIS in 15 days. The USCIS Premium Processing procedure, as noted above in connection with the L-1 petitioning process, requires payment of an additional $1000.00 USCIS filing fee.

The initial period of H-1B eligibility is three years even for an employee of a new company (i.e. one that has been doing business in the U.S. for less than 12 months). After the USCIS has approved the H-1B petition, the alien professional must present a visa application at a U.S. Consulate to obtain an H-1B visa.

The visa appointment scheduling process currently takes about one week at many U.S. Consulates. The H-1B visa allows the alien professional to apply for admission to the U.S. Once admitted to the U.S. with an H-1B visa an alien professional is immediately eligible to engage in employment. At the end of the initial three year period in H-1B status, it is possible for the company to file a new petition with the USCIS to seek an extension of the worker’s H-1B status if the worker’s assignment will extend beyond the first three years.

Due to the costs and record keeping requirements of the H-1B process, the limitations on the visa’s availability and the need to file an individual H-1B petition for each worker, the E-2 visa category may offer more advantages depending on a company’s business plan.

E-2 Visa Procedures

The E-2 visa category allows certain foreign companies making a substantial investment in the

U.S. to qualify as a Treaty Investment Enterprise. The Treaty Investment Enterprise must be at least 50% owned by nationals of a country that has a qualifying bilateral treaty with the U.S. Such an enterprise may employ key alien managerial, executive or essential knowledge workers in the U.S. There is no requirement that the alien worker previously worked for the company outside the U.S. as with the L-1 visa category. There also is no requirement that the alien worker has a university-level degree as with the H-1B visa category. The alien workers, however, must have the same nationality as the ultimate owners of the Treaty Investment Enterprise.

There is no need to first file a petition with the USCIS in the United States to obtain E-2 classification. An application is filed initially at a U.S. Consulate. Once the company has been approved as a Treaty Investor Enterprise by the U.S. Consulate, an individual employee may apply at the consulate for an E-2 Treaty Investor visa.

The procedures for obtaining E-2 visa classification vary greatly among U.S. Consulates. Some consulates require a company to file an application for classification as a Treaty Investor Enterprise before the worker schedules a visa application appointment. Others require the initial company application to be filed along with the E-2 visa application for an individual worker. An E-2 visa may be issued with a validity period up to five years, depending on the individual’s nationality. Some U.S. Consulates, however, issue E-2 visas with a two year validity period for employees of an investment enterprise newly established in the U.S.

The adjudication time for an initial Treaty Investor Enterprise application also varies among consular posts. Currently, the U.S. Consulate in London, for example, takes approximately 60 days to adjudicate an application to register a company as a Treaty Investor Enterprise. There is no premium processing procedure available at U.S. Consulates for Treaty Visa applications. After the company is approved as a Treaty Investor Enterprise in London individual workers may present E-2 visa applications to the U.S. Consulate. At many U.S. Consulates, the scheduling process takes about one week depending on the demand for appointments.

There is no limit on the number of E-2 visa applications that may be supported by a registered Treaty Investor Enterprise. Consequently, companies anticipating a need to transfer a number of

workers to the U.S. over time frequently enjoy cost savings with the E-2 visa category over the L­1 or H-1B visa categories. However, due to the specific documentary requirements for the E-2 visa category, , new companies sometimes find it easier to satisfy the L-1 or H-1B visa categories rather than the E-2 requirements for their company.

Alternative Visa Options

As noted at the beginning, this discussion is a review of some of the considerations associated with selecting a visa category suitable for sending key foreign workers to the U.S. There are several other visa categories that may be a superior choice for certain situations. Some of these include the TN visa for certain Canadian or Mexican business professionals, the E-1 visa for Treaty Traders, the E-3 for Australian professionals, the H-1B1 visa for Chilean or Singaporean professionals, the O-1 visa for aliens of extraordinary ability and for trainees, the H-3 or J-1 visa categories.

Plan of Action

Companies considering sending key workers to the United States should begin the visa application process well in advance of the date that the worker is expected to arrive in the U.S. It is virtually impossible to start the planning process too soon. Proceed by gathering the necessary documents and information pertaining to business plans in the U.S., the worker’s employment history and intended duties in the U.S. Once this information is assembled and analyzed it is possible to identify the available visa options and outline a strategy to select and obtain the best visa category.

General Process (NonImmigrant Visa Status)

U.S. Lawful Permanent Residence

Maintaining Lawful Permanent Resident (LPR) Status