DUNBAR, HARDER & BENSON, L.L.P.
Attorneys at Law
one riverway, suite 1850
Houston, Texas 77056
Phone: 713/782-4646 Fax: 713/782-5544
www.dhbllp.com
Kenneth J. Harder Board Certified
Immigration & Nationality Law
Texas Board of Legal Specialization
Visa and Immigration Issues for Conducting Business in the United States
This memorandum is intended to provide an overview of the immigration options available to conduct business in the United States. Acting under the authority of legislation and agency policy, U.S. consular and immigration services have become progressively more restrictive in their interpretation and application of immigration law in recent years.
Citizens of Mexico may enter the United States for business as visitors with a B-1 visa. The U.S. Consulates in Mexico are authorized to issue a B-1 (or B-1/B-2) visitor visa upon demonstration of a legitimate need to visit the United States and return to Mexico. Once the Consulate is satisfied of the need for the visa, it may be issued with a validity period of up to ten years with multiple entries permitted during that time. Upon application for admission to the United States, the Customs and Border Protection (“CBP”) service typically authorizes a stay of up to six months.
The laws and regulations of the United States allow business visitors to engage in a wide range of business activities. Acceptable activities include: negotiating contracts, consulting with business associates, calling on customers (i.e., soliciting sales or taking orders for work that will be performed outside the U.S.), procuring goods, components, or raw materials for use outside the U.S, participating in conferences, conventions, or seminars, undertaking independent research, participating in litigation, attending board of directors meetings, setting up a new business or opening an office (but not managing the business or running the office).
This list is not exclusive. Rather, it is intended to provide illustrative examples. Generally, legitimate business activities should normally be associated with international trade or commerce and the principal benefit of the activity should accrue to the business person or entity abroad.
Where a worker reports regularly to an office or other location in the U.S. on a fixed schedule, the U.S. immigration authorities may consider the conduct to be impermissible local employment. A business visitor may not be placed on a local payroll in any circumstances. When a foreign worker will need to be assigned to perform duties in the U.S. on a regular or extended basis, it is necessary to obtain a visa that authorizes employment in the United States.
A foreign businessman requiring employment authorization in the U.S. may utilize a variety of options. Some of the most common visa categories include the Intracompany Transferee, L-1 visa, the Treaty Trader, E-1 visa, the Treaty Investor, E-2 visa, or the Specialty Worker H-1B visa categories, and the professional worker, TN visa, among others. These visas authorize temporary entry to, and employment in, the United States. The alternative, permanent resident (“green card”) immigration option currently takes well over a year to complete in the best circumstances. Each temporary visa category has relative advantages and disadvantages. Not every worker will qualify for each visa category.
The Intracompany Transferee L-1 visa category may be available to organizations that have an affiliated company in the U.S. and abroad. Usually, there must be at least 50% common ownership with the entity abroad but this is not an absolute rule. Employees must have worked for a foreign affiliate outside the U.S. as an executive, manager, or utilizing specialized knowledge for 12 months and must be coming to the U.S. to work in a similar capacity. Large companies that anticipate the need to transfer large numbers of workers to the U.S. may qualify for “Blanket L” classification. Use of the Blanket L process frequently reduces the time and costs associated with the immigration process.
In order to obtain L-1 visa classification, an employer must file a visa petition with the United States Citizenship and Immigration Services (“USCIS”) in the U.S. After approval of the petition, a Notice of Action is issued which the worker must present to a U.S. Consulate in Mexico to receive the L-1 visa. Companies with a Blanket L approval may have workers apply directly to the U.S. Consulate, saving the USCIS adjudication time and costs.
E-1 or E-2 visas may be available if a company qualifies as a treaty enterprise. The company in the U.S. must be at least 50% owned by Mexican nationals. A trader company is one that conducts more than half its trade between the U.S. and the Mexico. An investor enterprise is one that has made a “substantial” investment. To satisfy the substantiality test the investment being made must be proportionally large relative to the type of business involved, allowing even thinly capitalized, service companies to qualify.
As with the Intracompany Transferee visa category, managerial, executive and essential knowledge employees can qualify for E visas. Each employee applying for an E visa must have Mexican nationality, the same as the owners of the treaty enterprise.
There is no need to apply for treaty enterprise classification with the USCIS in the U.S. in advance of applying for an E visa. A company applies directly to the U.S. Consulate in Mexico. After approval as a treaty enterprise, individual employees must present individual applications at the U.S. Consulate to receive an E visa. By using the E visa category, smaller companies may benefit from the advantages of the “Blanket L” visa without the need to demonstrate the previous employment needed to qualify for that category.
The Specialty Worker H-1B visa category is available for those with a four year bachelor’s degree, or equivalent knowledge. The worker must be coming to fill a job which typically requires advanced knowledge. There is no requirement that the alien worker has been employed abroad by an affiliate or that he has Mexican citizenship. The employer, however, must pay the worker at least the “prevailing wage” in the region where he will be employed and comply with other regulatory requirements.
An employer in the U.S. must file a visa petition with the USCIS in the U.S. for the alien worker to obtain H-1B classification. Once the USCIS approves the petition, a Notice of Action is issued which must be presented by the worker to a U.S. Consulate abroad to obtain the H-1B visa.
There is an annual quota or up to 85,000 H-1B visas. In recent years the quota has been exhausted early making advance planning essential if this visa category is to be effectively used.
Mexican nationals may qualify for a TN visa to engage in temporary business activities at a professional level. Typically, qualifying professional activities require attainment of a bachelor’s degree for entry into the occupation although there are exceptions. A TN visa application may be filed directly at a U.S. Consulate in Mexico. The application must be supported by documentation demonstrating that the applicant is a Mexican national who possesses an educational degree or other qualifying evidence and is coming to work temporarily in a qualifying occupation under the North American free Trade Agreement.
There are a variety of other temporary visas that authorize employment. Among them are the O-1 visa for aliens of extraordinary ability, the J-1 visa for trainees or those conducting studies or research, and the H-2B visa for nonprofessional employees coming to fill a temporary worker shortage. It should be emphasized that the visa discussion here is intended only to convey a general idea of the visas available rather than to provide a comprehensive review of the immigration process. There may be various immigration options available in a given situation, depending on individual circumstances.
One of the biggest challenges companies encounter is the delay in adjudication of applications by the USCIS or the U.S. Consulates in Mexico. The USCIS can take from 2 to 3 months to adjudicate a visa petition. An expedited, 15 day service is available from the USCIS in exchange for payment of a $1000.00 filing fee. Treaty enterprises or those with Blanket L approvals can avoid these costs and delays by filing application directly at a U.S. Consulate abroad.
Each worker must apply for a visa at a U.S. Consulate. The wait for a visa appointment differs among the various consulates. Typically it takes from a few days to several weeks to obtain an appointment. There is no expedited appointment service available at U.S. Consulates at this time. Accordingly, companies should plan well in advance of any anticipated employee transfer to the U.S. in order to avoid delays in project start dates due to immigration requirements.
In very limited situations, companies experiencing immigration delays may be able to send a worker to the U.S. as a business visitor in advance of obtaining an employment based visa. This can be a risky option. Both immigration authorities in the U.S. and Consular Officers abroad may take the view that the entry to the U.S. was gained through a misrepresentation as to the actual purpose of the trip. If either authority concludes that the worker was really entering the U.S. to begin his assignment prior to obtaining the proper visa, he may be refused the visa at the consulate or denied entry upon applying for admission to the U.S. Accordingly, if a company needs to send a worker to the U.S. prior to obtaining an employment based visa, it should carefully document the purpose and intended duration of the trip to demonstrate that it is truly a visit rather than commencement of employment without authorization.
Immigration Inspectors at ports of entry are part of the CBP in the Department of Homeland Security. Inspectors have the authority to refuse admission to the U.S. to foreign nationals engaged in unauthorized employment. The distinction is not always apparent. To deal with this ambiguity, there are certain steps that a business visitor may take to minimize the possibility of encountering problems at the port of entry. Firstly, visitors should be prepared to state the exact purpose and duration of their trip. A business visitor should indicate that he is coming to consult, review plans, etc, as appropriate. This will help avoid misunderstandings by the CBP Inspector. Secondly, the worker should not carry business cards with a U.S. address. CBP Inspectors are trained to ask for a card when in doubt about the admissibility of a business visitor. A card with a local address suggests local employment and often results in refusal of admission. These observations may help to facilitate business travel to the U.S. and minimize sources of misunderstanding by U.S. immigration authorities.
We caution that the foregoing discussion is a very broad summary of legislation that is very complex. Availability of visas for any given situation depends on a wide range of individual circumstances. This information should not be construed as legal advice for any one immigration matter.