What Businesses Need to Know Before Transferring Employees to the U.S.

by Parker Poe Adams & Bernstein LLP
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Over the course of the past year, it has become harder for companies to bring foreign employees to the U.S.

Although for the most part current laws governing visas, business meetings, and tourism have not changed, the federal government’s interpretation of those laws has. The result is that, compared to the Obama administration, the Trump administration is applying stricter standards across all categories of immigration that can create challenges for global businesses.

With a clear understanding of the current policies, however, companies can put themselves in a good position to successfully navigate the U.S. immigration system. My colleagues and I routinely work with international businesses who transfer foreign employees to the U.S. on a temporary or permanent basis. Below are some of the key things to know and steps to take before any foreign national comes to the U.S.

Define the Primary Purpose of the Visit

The first question businesses need to answer before bringing an employee to the U.S. is: What’s the primary purpose of the visit? Any foreign national who travels here has to come under some particular status, whether it’s for a specific job, a business visit, tourist activity, or family event. Across the board, you need proper authorization and that authorization should reflect the primary purpose of the visit.

For most of our clients, the primary purpose of bringing employees over is tied to productive work, which requires employment authorization in the United States. Once it is clear that an employee needs work authorization, however, clients must determine which option is the best fit (if any).

Determine What Travel Authorization You’ll Use

Typically, companies first bring employees over on a temporary transfer basis. There are a wide variety of visas authorizing  nonimmigrant (or temporary) work. Here are a few common ones:

  • The B-1 visa is for temporary business visitors who, for example, may be consulting colleagues, traveling for a specific convention or conference, or even meeting with customers of the foreign company. Beware to understand whether the travel is within the scope of permissible activities under this category. U.S. Customs and Border Protection reviews these travelers closely.
  • E-1 or E-2 visas are for treaty trader or for treaty investor companies or individuals (and their employees) who are citizens of countries with which the U.S. maintains a qualifying treaty.
  • The H-1B visa is for specialty occupation professionals, which is generally considered to mean that the position requires at least a bachelor’s degree in a specialty field to perform the duties.
  • The L-1 visa is for executives, managers, or specialized knowledge workers transferring from a qualifying foreign affiliate of a U.S. company.
  • The O-1 visa is for extraordinary ability in business, science, education, or certain other fields.

There is also a visa waiver program that citizens of 38 countries, including most of Europe and some parts of Asia, are eligible for. However, that program is for a limited set of activities (similar to the B-1 or B-2) and a visit of 90 days max. You can find more temporary visa options that we help clients with here.

Be Prepared for a Slow, Costly Process

Receiving U.S. government authorization can take several months, so it’s important to prepare as far in advance as possible. For most nonimmigrant visa categories, the earliest you can apply is six months before the proposed work date. Applying that early gives you the best possible shot of getting through the process on time. Government filing fees depend on the non-immigrant visa category but can add up if using premium processing or including dependents.

Do Your Homework Before the Visa Interviews

It is critical for each individual employee to be prepared for visa interviews. Attorneys do not represent clients before the Consular or Border Officers, where the individual applicant appears in person when applying for a benefit at U.S. Consulates or at the border. Travelers need to be able to explain what type of visa they have, why they have it, and how they qualify. While most employees understand what they do for work, often they do not understand why that is important for the visa category. Having a clear picture of the how and why can be the difference between an approval and a denial.

Understand the Difference Between and Importance of Your Documents

After receiving authorization to be in the United States, some clients have been confused by the different “validity dates” in their immigration documents. There may be an approval notice with one validity date, a visa with a different validity period, and a Form I-94 that you receive once in the States with yet another date. Understanding the meaning and repercussions of those expiration dates is essential to maintaining legal status in the U.S.

Consult With Legal Counsel

In some cases, companies have waited to consult with counsel until they encountered a roadblock. While experienced attorneys can be helpful at any point, the best approach is to work with counsel throughout the process of transferring employees to the U.S.

In the early stages, an attorney can help devise the best strategy for the company’s needs, including analyzing which employees are most likely to be approved under current U.S. policies. Counsel can also help determine what type of authorization would be the best fit and walk companies and their employees through the visa application process.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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