Types of Visas for Foreign Employees Employed by a U.S. Company

There are many types of visas that allow foreign individuals to enter the U.S. for various reasons. In situations related to business activities, the following types of visas are most applicable.

B1 Visa

The B1 Visa, also known as the Visitor for Business Visa, allows an individual to enter the U.S. temporarily to conduct business negotiations, seek or make investments, attend and fully participate in meetings and conferences, receive and exhibit orders that will be produced outside the U.S., and conduct research.[1] This visa does not cover activities such as managing a business in the U.S. or being employed in the U.S.[2] Duration of stay allowed for each applicant varies between three to six months and is up to the discretion of the immigration officer.[3]

Although applicants may apply at any U.S. consular office, it is suggested that they apply in the country of residence due to the greater degree of review such applications have recently been subjected to.[4] The application process consists of an interview, a fingerprint scan, and payment of an application processing fee.[5]

Applicants are presumed to an “intending immigrant”[6] under Section 214(b) of the Immigration and Nationality Act.[7] To overcome this presumption and apply for a visa, the applicant must show the following[8]:

  • The purpose of their trip is to enter the U.S. for business, pleasure, or medical treatment;
  • That they plan to remain for a specific, limited period;
  • Evidence of funds to cover expenses in the United States;
  • Evidence of compelling social and economic ties abroad; and
  • That they have a residence outside the U.S. as well as other binding ties that will insure their return abroad at the end of the visit.

B1 in Lieu of H-1B Visa

There are limited situations in which an employee may be issued a B1 visa in which the work would normally require an H-1B visa (see below) instead. This is usually applicable in situations where an employer may need a non-U.S. company or an overseas affiliate to send an employee to the U.S. for a limited period of time (less than one year) to conduct specific projects.[9] The requirements are [10]:

  • The work the applicant plans to perform in the U.S. is of H-1B level (i.e., specialty occupation).
  • The employee may not receive compensation from a source other than the foreign employer.
  • The employee must have the equivalent of a U.S. bachelor’s degree.
  • The work can be completed in a short amount of time.

The application process for this visa is the same as that of the B1 with the addition of a clear explanation of seeking the visa for this purpose in the Business Executive Program (BEP) cover letter.[11]

EB-2 Visas

For foreign nationals who have advanced degrees or skills, an EB-2 visa may be petitioned. In order to apply for this visa, the applicant must be sponsored by an employer who is required to complete a Petition for Alien Worker (Form I-140).[12] There are three categories under this visa:

  • Foreign nationals with an advanced degree (masters or higher) and with a job offer from a U.S. company that requires this advanced degree.[13]
  • Foreign nationals with an exceptional ability in the sciences, business or arts.[14] “Exceptional ability ‘means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.’”[15]
  • National Interest Waiver: Foreign nationals with an exceptional ability, or an advanced degree, who can show that their activities will substantially benefit the national interest of the U.S.[16] “[N]ational interest waivers are usually granted to those who have exceptional ability [] and whose employment in the [U.S.] would greatly benefit the national. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them).”[17]

EB-5 Visa

The EB-5 visa is also known as the Immigrant Investor Program.[18] It was created in 1990 by Congress to stimulate the U.S. economy through the creation of jobs for Americans and capital investment in U.S. companies by foreign investors.[19]

A foreign national who invests money in a U.S. company may obtain such a visa.[20] Specifically, the foreign national must invest at least $1 million dollars in a U.S. business and create full-time employment for at least 10 American employees.[21] If the investor invests in a high unemployment area or rural area, the investment need only be a minimum of $500,000.[22] If the investor meets these requirements within two years and remains involved with the business for that period of time, the investor may qualify for permanent resident status.[23]

H-1B Visa

Another visa that a foreign employee may qualify for is the H-1B visa as an individual in a “specialty occupation,” occupations that require a high degree of specialized knowledge.[24] The employer must petition for the employee’s entry by submitting a Labor Condition Application (LCA) with a Petition for Nonimmigrant Worker (Form I-129). [25] The U.S. Citizenship and Immigration Services (“USCIS”) usually starts accepting petitions six to eight months before the visa’s actual start date.[26] An annual cap of 65,000 visas only is issued under this category.[27]

The employee is required to have at least a U.S. bachelor’s degree or its equivalent and the occupation requires that degree.[28] For those who wish to practice in certain professions such as law, medicine, and accountancy, they will also be required to obtain the relevant state or federal license to practice in the employer’s jurisdiction.

The initial visa may be granted for up to three years and may be extended thereafter for up to six years.[29] During this time, H-1B visa holders who wish to stay in the U.S. for a longer period of time may apply for permanent residency. Otherwise, once the six-year maximum period for the visa expires, the employee will be required to live outside the U.S. for at least one year before another application is made to have the employee re-enter the U.S. on another H-1B visa or different visa.

H-3 Visa

A foreign national may also enter the U.S. through a H-3 visa as a trainee to receive training that is not available in the national’s home country and that is not related to a graduate program or medical training.[30] The visa “is not intended for U.S. employment. It is designed to provide an alien with job-related training for work that will ultimately be performed outside the United States.”[31]

In order to obtain an H-3 visa, the U.S. employer must describe the training program in detail, the number of hours per week the trainee will spend on classroom training and on-the-job training, and the trainee’s prior experience.[32] If granted, the duration allowed under this visa is a maximum of two years.[33]

L-1 Visa

The L-1 visa allows companies that are operating both in the U.S. and in other countries to transfer certain classes of employees from its foreign branches to its U.S. branches.[34] The employee, however, must have worked for a subsidiary, parent, affiliate, or branch office of the company in a foreign country for at least one year in the last three years prior to the application of the L-1 visa.[35]

Two types of employees may be sponsored under the L-1 visa:

  • Executive/managerial staff: The executive or manager must have supervisory responsibility for professional staff and/or for a key function, department or subdivision of the employer. Such employees have issued an L-1A visa initially for three years which may be extended in two-year increments for up to seven years.[36]
  • Specialist knowledge staff: The employee must have knowledge of the company’s products or services, research, systems, proprietary techniques, management, or procedures. Such employees have issued an L-2B visa initially for three years which may be extended to up to five years. For employees who will be stationed at an unaffiliated employer worksite, the employer must show that the employee will not be supervised by the unaffiliated employer and that the employee will not be considered hired by the unaffiliated employer.[37]

The Pending Startup Visa Act of 2011 (EB-6)

This bill creates another category for foreign entrepreneurs who wish to start a company in the U.S. but currently face limited visa options. The bill has been introduced in 2010 (Startup Visa Act of 2010) and was referred to the Judiciary Committee but no further action was taken thereafter.[38] The bill was then again introduced into Senate on March 14, 2011, by Senator John Kerry and is currently awaiting Committee review.[39] Under this legislation, the EB-6 visa would be a temporary visa which would convert the visa holder into a U.S. permanent resident after two years if certain conditions are met[40]:

  • Entrepreneurs living outside the U.S.:  A U.S. investor must agree to invest a minimum of $100,000 in the venture. Two years later, the startup must have created five new American jobs and either has raised over $500,000 in financing or be generating more than $500,000 in yearly revenue.
  • H-1B visa holders or graduates from U.S. universities in science, technology, engineering, mathematics, or computer science:  Such individuals must have an annual income of at least 250% the federal poverty level or assets of at least two years of income at 250% the federal poverty level and have had a U.S. investor make an investment of at least $20,000 in their venture. Two years later, the startup must have created three new American jobs and either has raised over $100,000 in financing or be generating more than $100,000 in yearly revenue.
  • Foreign entrepreneurs whose business has generated at least $100,000 in sales from the U.S.: Two years later, the startup must have created three new American jobs and either has raised over $100,000 in financing or be generating more than $100,000 in yearly revenue.

In all the above conditions, the investor must be a qualified venture capitalist, a U.S. citizen who has made at least two equity investments of a minimum of $50,000 per year in the last three years (“super angel investor”).[41] The investor may also be a qualified governmental entity.[42]

[1] U.S. Department of State, “Business Travel to the United States – What Type of U.S. Visa Will You Need”, available at http://travel.state.gov/pdf/BusinessVisa.pdf.

[2] Id. at 2

[3] See U.S. Immigration Support, B-1 Business Visa Application Guide, https://www.usimmigrationsupport.org/b1-business-visa.html (last visited Aug. 12, 2011); USAVisaNow.com, B-1 Visa for Business Visitors, http://www.usavisanow.com/b-1-b-2-visa/b-1-visa/ (last visited Aug. 12, 2011); workpermit.com, B1 and B2 Visitor Visas, http://www.workpermit.com/us/employer_b1_b2.htm (last visited Aug. 10, 2011).

[4] U.S. Department of State, “Visitor Visas – Business and Pleasure”, http://travel.state.gov/visa/temp/types/types_1262.html#extendstay (last visited Aug. 12, 2011).

[5] Id.

[6] Id.

[7] Immigration and Nationality Act, 8 U.S.C.A. § 1184(b) (2009).

[8] Visitor Visas, supra n. 3.

[9] US Visa Group, US Visa Peru – Work Visas, http://www.usvisaperu.com/work-investor-B1-E1-E2-E3-EB5-H1B-H1B1-H4-L1-L2-O1-O3-P1-P4-D1.html (last visited Aug. 12, 2011); workpermit.com, supra n. 3.

[10] Embassy of the United States, New Delhi, India, B1 in Lieu of H, http://newdelhi.usembassy.gov/types_of_visas/temporary-employment-holp/b1-in-lieu-of-h2.html (last visited Aug. 12, 2011); Consulate General of the United States, Mumbai, India, Nonimmigrant Visas: B-1 in Lieu of H-1B, http://mumbai.usconsulate.gov/b1_in_lieu_of_h1b.html (last visited Aug. 12, 2011).

[11] Id.

[12] U.S. Citizenship and Immigration Services, Employment Based Immigration: Second Preference EB-2, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=816a83453d4a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=816a83453d4a3210VgnVCM100000b92ca60aRCRD (last updated Aug. 02, 2011).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] U.S. Citizenship and Immigration Services, EB-5 Immigrant Investor, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=facb83453d4a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=facb83453d4a3210VgnVCM100000b92ca60aRCRD (last updated May 18, 2010).

[19] Id.

[20] Investors must invest in a “new commercial enterprise,” a business established after November 29, 1990 or a business that was established before that date and has since been restructured into a new business or expanded to result in a 40% increase of employees or net worth. Id.

[21] Id.

[22] Id.

[23] Id.

[24] U.S. Citizenship and Immigration Services, “H-1B Specialty Occupation Visa Program”, available at http://www.uscis.gov/USCIS/Resources/Resources%20for%20Congress/Congressional%20Reports/2011%20National%20Immigration%20&%20Consular%20Conference%20Presentations/H-1B_Specialty_Occupation_Visa_Program.pdf (last visited Aug. 12, 2011).

[25] U.S. Citizenship and Immigration Services, H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=73566811264a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD (last updated Mar. 24, 2011).

[26] See U.S. Citizenship and Immigration Services, USCIS to Start Accepting H-1B Petitions for FY 2012 on April 1, 2011, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=31f803aea7ace210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD (Mar. 18, 2011).

[27] Id.

[28] H-1B Specialty Occupations, supra n. 25.

[29] Id.

[30] U.S. Citizenship and Immigration Services, H-3 Nonimmigrant Trainee or Special Education Exchange Visitor, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=8d500b89284a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=8d500b89284a3210VgnVCM100000b92ca60aRCRD (last updated May 25, 2011).

[31] Id.

[32] Id.

[33] Id.

[34] U.S. Citizenship and Immigration Services, L-1A Intracompany Transferee Executive or Manager, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=64d34b65bef27210VgnVCM100000082ca60aRCRD&vgnextchannel=64d34b65bef27210VgnVCM100000082ca60aRCRD (last updated Mar. 08, 2010); U.S. Citizenship and Immigration Services, L-1B Intracompany Transferee Specialized Knowledge, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=bfd10b89284a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=bfd10b89284a3210VgnVCM100000b92ca60aRCRD (last updated May 19, 2010).

[35] Id.

[36] L-1A Intracompany Transferee Executive or Manager, supra n. 30.

[37] L-1B Intracompany Transferee Specialized Knowledge, supra n. 30.

[38] Startup Visa Act of 2010, S. 3026, 111th Cong., available at http://thomas.loc.gov/cgi-bin/bdquery/z?d111:SN03029:@@@L&summ2=m& (Feb. 24, 2010).

[39] Startup Visa Act of 2011, S. 565, 112th Cong., §2 available at http://thomas.loc.gov/cgi-bin/query/z?c112:S.565: (Mar. 14, 2011).

[40] Id.

[41] Id.

[42] Id.

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