More and more companies are looking to other countries to find the talent they need. Such companies should have a working knowledge of the options available in hiring foreign workers. The following is a brief overview of the most frequently used employment-based nonimmigrant visas.
Business visitors
B-1 business visitors are individuals conducting business on behalf of a foreign entity. Such activities include attending business conventions, conferences or meetings, negotiating contracts, consulting with business associates or conducting litigation. However, a business visitor may not engage in activities which constitute gainful employment. Therefore, the business visitor must remain on the payroll of the foreign employer for the duration of stay.
Business visitors are granted entry into the United States for a temporary period that coincides with their business needs.
Temporary workers
The H-1B visa category is used by U.S. employers for temporarily employed foreign workers in specialty occupations. A specialty occupation is one that requires the theoretical and practical application of highly specialized knowledge. Attainment of a bachelor’s degree or its equivalent must be a minimum for entry into the occupation in the U.S. The degree held by the alien must be common to the industry for the position.
Initial admissions in H-1B status may be for a maximum of three years, with extensions up to three years.
Intracompany transferees
The L-1 intracompany transferee is an individual seeking to transfer from a foreign to U.S. entity in order to work in an executive, managerial or specialized-knowledge capacity. The company abroad must have a qualifying relationship with the U.S. entity, such as parent, subsidiary, affiliate or branch. Also, the alien must have worked abroad for one continuous year within the preceding three years for the foreign entity.
Specialized knowledge L-1’s are permitted to remain in the U.S. for a maximum of five years, while managers and executives may remain for a maximum period of seven years.
Treaty traders and treaty investors
The E-1 and E-2 categories are reserved for citizens of countries with which the U.S. has a treaty of freedom, commerce and navigation, or a bilateral investment treaty. The employer and the applicant must be nationals of the treaty country. The applicant must also be coming to the U.S. to carry on substantial trade (E-1) or to develop and direct the operations of an enterprise in which the applicant has invested, or is actively in the process of investing, a substantial amount of capital (E-2).
The E visa is generally issued for a five-year term and is renewable. The authorized stay in the U.S. is usually two years, with extensions available in two-year increments.
NAFTA professionals
The TN (trade NAFTA) professional category is available only to Canadian and Mexican citizens who are coming to the U.S. to work in one of the qualifying professions listed in the Free Trade Agreement. Each of the qualifying professions has its own specific requirements.
Canadians may apply at a port of entry or qualifying airport; Mexicans must apply at a U.S. consulate. TN status can be granted for periods of up to one year and can be extended in one-year increments.
Individuals of extraordinary ability
The O-1 category is for individuals with extraordinary ability in the sciences, arts, education, business or athletics. Extraordinary ability means a level of expertise indicating that the individual is one of the few who have risen to the very top of the field of endeavor.
Extraordinary ability must be demonstrated by sustained national or international acclaim. As a result, qualifying for O-1 status is relatively difficult.
William J. Manning, a partner in the White Plains office of Jackson Lewis, is the immigration practice area coordinator for the firm. Joseph S. Palmiero is an associate in the Pittsburgh office of Jackson Lewis. With 21 offices across the country, Jackson Lewis represents management exclusively in workplace law and preventive strategies. Reach Manning at [email protected] or (914) 328 0404, and Palmiero at [email protected] or (412) 232-0404.
