THE ART OF EMPLOYING FOREIGN NATIONALS.
Florida has become the epicenter of trade with Latin America, and the Caribbean. As we grow in trade so must we grow in multinational skills; hence, the need for foreign nationals and their specialized expertise. The presumption so often encountered by an immigration lawyer is that this is a formidable task. The simple answer to that question is NO, it is not formidable, but it requires expertise in Immigration Law. Our nation recognizes the value of immigration and has written laws to enable needed skilled workers to come and work here for the same salary as a U.S. worker. The million dollar questions are always, what visa and how fast. Once a corporation realizes it can tap into the pool of foreign workers the next question is invariably; “can they come yesterday?” The answer to that question is also easy: we have an alphabet of employment-based visas. The harder question is which one does your future employee qualify for, as this determines the speed with which they can transfer in. The most commonly used employment based visas are non-immigrant visas; that is, they are temporary in nature and last up to seven years. There is a mandate to the Immigration Service to adjudicate these visas expeditiously. Should the employer wish to offer a permanent job there are other immigrant visas available. However, these visas take longer to obtain, so a non-immigrant visa is usually the first step in the process. In addition to being used by employers, these visas also are available to investors or entrepreneurs who wish to set up their own business in the United States.
EMPLOYMENT BASED NON-IMMIGRANT VISA CATEGORIES
Commonly known as the professional visa. This visa is designed for employees who will be offered “professional jobs”. This is a term defined and interpreted by the Immigration and Nationality Act. Strangely enough it is not always consonant with the business world. A company president is not considered a professional. The employee must have a 4-year University degree or the equivalent and must earn at a minimum the prevailing wage set by the Department of Labor for this profession (another scary thought).
PROS: Quick turn around time and relative small amount of paper work involved.
CONS: The person needs to be employed by a company and willing to pay 7.5% of their income taxes (See Antonia’s Lines Fall 1999 Issue).
Commonly known as the intercompany transferee visa. The key to this visa is that a) a U.S. corporation has an affiliate or subsidiary overseas and b) 51% of the shares of both the corporation abroad and the U.S. Corporation are held by the same person or corporation. The two companies must continue to exist, with virtually the same corporate structure, through out the validity of the visa. This is a somewhat difficult scenario to maintain in our world of mergers and acquisitions. The employee must be at the executive or managerial level, or have specialized knowledge. Prior to entry to the U.S. he or she must have worked for one year in the last three years for the foreign company. (See Antonia’s Lines Fall 1999 Issue)
PROS: Quick turn around time and if the U.S. Corporation has been actively doing business for more than one year the employee can obtain permanent residence immediately.
CONS: Time consuming as there is a serious paper trail unless the U.S. Company has a published annual report. In addition corporate ownership is not always simple to trace.
The treaty or investor visa. These visas depend on a treaty of commerce between the U.S. and the foreign national’s country. Those qualifying for the E-1 (Trader) or E-2 (Investor) visas can pursue long term business objectives using these practical visas. (See Antonia’s Lines Winter 2000 Issue).
PROS: If the employee is not a professional or managerial they may have specialized knowledge which can be used to obtain the visa.
Countries with treaties for E-1 Visas: Argentina, Australia, Austria, Belgium, Bolivia, Bosnia & Herzegovina, Brunei, Canada, China (Taiwan), Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Korea, Latvia, Liberia, Luxembourg, Mexico, Netherlands, Norway, Osman, Pakistan, Paraguay, Philippines, Slovenia, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, United Kingdom, and Federal Republic of Yugoslavia (Serbia & Montenegro).
Countries with Treaties for E-2 Visas: Argentina, Armenia, Australia, Austria, Bangladesh, Belgium, Bosnia & Herzegovina, Bulgaria, Cameroon, Canada, China (Taiwan), Colombia, Republic of the Congo, Democratic Republic of the Congo, Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Kazakhstan, Korea, Kyrgyzstn, Latvia, Liberia, Luxembourg, the Former Yugoslav Republic of Macedonia, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, Federal Republic of Yugoslavia (Serbia & Montenegro), and Zaire.
CONS: There are several countries that do not have a commercial treaty with the United States. The Consular Post has to verify all and any documentation and approve the visa. Before you consider this visa option, you should verify first that your home country has a treaty with the United States.
Countries Pending Treaties for E-2 Visas: Azerbaijan, Belarus, Haiti, Jordan, Nicaragua, Russia Fed. and Uzbekistan.
The O visa nonimmigrant visa category enables foreign nationals who have demonstrated extraordinary ability or extraordinary achievement in a variety of fields, or those who have critical skills and experience with such an individual, to obtain a temporary working visa.
PROS: For individuals that have demonstrated extraordinary ability in the sciences, arts, educations, business, or athletics or extraordinary achievement in the fields of film or television, proven by sustained national or international acclaim or receipt of internationally recognized awards. It is valid for up to 3 years and can be further extended. The majority of the required documentation can be utilized for the permanent residence. These visas are relatively fast to be approved if the person qualifies.
CONS: Even tough you might consider yourself a person with extraordinary abilities, it is INS who determines if you qualify under this category. Individuals have to present a schedule of events and show their assistance to a series of particular events.
B-1 / B-2 Visas:
Most of all non-immigrant applicants arrive to the United States with a B-1/B-2 visa stamped on their passports. These visas allow you to enter the US on a “temporary basis” and are usually extended for six months. Did you know that these visas are not the same? That is, they are intrinsically independent of one another and entitle the bearer to certain benefits? It is very important to understand and recognize the differences between these two visas.
B-1 Visa: Are used for business purposes or for educational training. With a B-1 visa you can engage in commercial transactions not involving gainful employment such as negotiating contracts, litigation, consulting with clients or business associates. Traditionally, an alien that would otherwise be an H-1, but received no salary or remuneration other than expense allowance or other reimbursements incidental to temporary stay could enter as B-1. You have to keep in mind that any payment to a B-1 must be made abroad. However, salary remuneration, so long as the source is outside the US, may be arranged through a US banking or other financial institution. If you have a B-1/B-2 visa stamp on your passport you are allowed to purchase property or establish any type of bank account.
B-2 Visa: It is the most common non-immigrant visa. Mostly for tourist, social, relative or family visits and health purposes. You will get a B-2 visa if you tell the consular officer that you are coming to the United States to visit Disney World or a relative and then that you will return back to your home country. You will have to be able to demonstrate through bank letters and other financial documents that you are capable of supporting yourself for the period of time stamped on your I-94 card, which is usually up to six months and can be extended for another 6. With this visa you are not allowed to work, receive any sort of financial remuneration, or seek any employment opportunity.