Employing and Hiring Foreign Nationals in the U.S. – Employer Sponsored Visas
Sep 03, 2010 QuickCounsel Download PDF
In this era of globalization, many multinational companies wish to transfer executives and managers from affiliated companies to the U.S. for limited "tours of duty." Depending on the professional background of the proposed transferee, the length of the proposed stay, and the nationality of the foreigner, different options are available for the U.S.-based employer. These options are all contained in the Immigration and Nationality Act and are typically referred to by the letter and number that denote their sub-section in Section 101, the definitions section of the Act (8 U.S.C. §1101(a) (15)).
Foreign business travelers use B-1 visas during a brief stay (not to exceed one year). U.S. employers cannot compensate these visitors. While in the U.S. as a business visitor, an individual may:
Travelers coming to the U.S. for tourism or business for 90 days or less from qualified countries (including Western Europe, Japan, Australia and New Zealand) may be eligible to visit the U.S. without a visa if they meet the visa waiver program requirements.
Sponsoring a Foreign Employee
Company-sponsored employment authorization for foreign nationals can be divided into two categories:
(1) Non-immigrant status: a specific employer may seek authorization to hire a foreign national for a limited period of time as a temporary worker; and
Some visa categories do allow the transitioning from Non-immigrant (Temporary) Residency Status to Immigrant (Permanent) Residency Status, but not all do. Under the "dual intent" doctrine, some non-immigrants are allowed to enter and/or remain in the U.S. temporarily with a nonimmigrant visa (such as H-1 or L) even though they have expressed a long-term intent to remain permanently. B-1, B-2 and F-1 categories do not lend themselves to application of the "dual intent" doctrine.
Each visa category has very specific regulations that must be followed closely, most of which require coordination between the United States Citizenship and Immigration Services (USCIS), part of the Department of Homeland Security, and other U.S. government departments, such as the Labor Department. Timelines are extremely important and documentation can be voluminous.
The key visa categories for the temporary non-immigrant employment of foreign nationals are L-1A (Multinational Managers/Executives), L-1B (Specialized Knowledge), H-1B (Professional Workers), and TN Application (Canada and Mexico).
Usually spouses and children can accompany the worker and live in the U.S., but cannot be employed (and domestic partners are not allowed to benefit from a primary work permit). These visas are time limited and are not a good solution if the employee is meant to stay for more than a few years.
There are four statutory requirements that a U.S. company and foreign national employee must meet when filing for an L-1 visa.
(1) The employee must have worked for the transferring company outside the U.S. for one continuous year over the last three;
The H-1B visa is available to individuals:
Under an H-1B visa, the company can hire a foreign national for up to six years with an option to extend this temporary status beyond the six-year limit if the company is in the process of sponsoring the foreign national for permanent residence. The annual quota of H-1B visas available and the first date of the year petitions are accepted are critical parts of the H-1B filing strategy. The current annual cap on the H-1B category is 65,000.
Under the North American Free Trade Agreement (NAFTA), qualifying Canadian and Mexican citizens can enter the US to work temporarily at a professional level as TN non-immigrants. To qualify for TN status, the offered position must fit within one of the listed professions set forth in 8 C.F.R. Sec. 214.6(b)-(c) Appendix 1603.D.1.
Immigration law for professionals is complicated and constantly evolving. Accordingly, if you determine it is appropriate to pursue one of these visas on behalf of your company, consulting with an experienced immigration attorney is recommended.
Additional ACC Resources
ACC Resource Library - Primer
ACC Resource Library - ACC Docket
ACC Resource Library - Article
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