General Practice, Solo & Small Firm DivisionMagazine
Nonimmigrant U.S. Visas
Counseling Your Small Business Clients
BY Boyd F. Campbell
Y our small-business clients can stay competitive, despite the tight labor market, by identifying skilled foreign nationals and using U.S. visas to bring them into the United States on a temporary basis.
Temporary skilled labor may enter the United States in different kinds of immigration status, each of which has its own set of statutory and regulatory requirements and limitations. Violations of immigration laws can result in serious consequences for your business clients, but if they need the skilled labor that many foreigners can provide, you will need to know how to help them. In order to successfully utilize nonimmigrant U.S. visas, employers must comply with the Immigration and Nationality Act (INA), the Immigration Reform and Control Act of 1986 (IRCA), the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), and other federal immigration regulations.
Because of greater restrictions on the hiring of foreign skilled labor, lawyers must be flexible in their approaches to specific cases. In close cooperation with their small-business clients, they must carefully plan the entry of foreign workers, and advise clients on applicable federal income tax laws, treaties (both foreign and domestic), and even U.S. foreign policy.
Nonimmigrant U.S. visas are identified by letters and numbers that refer to applicable subsections of the INA, including:
• B-1, business visitors
• H-1B, temporary specialty workers
• H-2A, temporary or seasonal agricultural workers
• H-2B, temporary nonagricultural workers
• O-1, aliens of extraordinary ability
• P-1, internationally known athletes, individually or as part of a group, and entertainment groups
• P-3, culturally unique entertainers
• TN, Canadian or Mexican professionals entering under the North American Free Trade Agreement (NAFTA).
All regulations governing the visas described in this article are contained in Title 8, Code of Federal Regulations. Let’s take a closer look at some of these categories.
The B-1 visa is for business visitors who seek to enter the United States to engage in business, not to be employed. Small-business clients may wish to encourage foreign professionals to use this visa when a foreign entity has a contract with the U.S. business, and the business visitor is coming to the United States to work on a contract held by the overseas employer.
The business visitor must be able to produce adequate funds for support while in the United States and must show substantial ties to the country of residence. Practitioners should advise clients about the use of B-1 visas and assist them in complying with the law and regulations. B-1 visaholders should be able to show upon entry to the United States that no payment will be received in the United States and no employment undertaken while in the country.
For foreign nationals from Visa Waiver Pilot Program countries, it may be advisable for the foreign national to obtain a B-1 visa stamp in his passport and to present a letter at the port of entry fully disclosing the nature of the engagement in the United States.
If a foreign national tries to enter the United States in B-1 rather than H-1B (specialty worker) visa status, an INS officer might well find the foreign national excludable under either 212(a)(6)(C) or 212(a)(7) of the INA. The foreign national would have no right to a hearing before an immigration judge, and no consular officer would be able to overrule such findings made at the port of entry.
U.S. employers have used the B-1 visa in lieu of H-1B because commerce is time sensitive, and the H-1B visa takes longer to obtain. But practitioners should emphasize that the foreign national should enter the United States on the correct visa, depending upon the purpose of the foreign national’s entry.
B-1 visaholders can commonly engage in
commercial transactions; negotiate contracts; consult with business associates; engage in litigation; participate in scientific, educational, professional, or business conventions, conferences, or seminars; or undertake independent research. But again, the B-1 visaholder must not receive a salary or other remuneration from a U.S. employer.
Application for the visa is made on U.S. Department of State form OF-156, which may be filed, with the appropriate fee, at any U.S. consulate around the world.
The H-1B visa applies to foreign workers in a specialty occupation, defined as "an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States."
The degree requirement must fulfill one of the following conditions: it must be common in the industry in which the alien will be employed; the U.S. employer must normally require such a degree or its equivalent for the position offered; or the specific duties of the position must be so specialized and complex that knowledge required to perform them is usually associated with a bachelor’s or higher degree.
If licensure or certification for the position is required by the state in which foreign workers will be employed, they must obtain it. If they have not completed a bachelor’s degree, they may show three years of experience for each year of college-level training, through progressively responsible positions directly related to the specialty. Immigration lawyers use credentials-evaluation services to translate foreign academic and work experience in order to meet these requirements.
Training and work experience cannot substitute for a degree in positions requiring a master’s degree. Equivalency can be shown only by possession of a bachelor’s degree, plus at least five years’ experience in the specialty occupation.
Specialty workers’ wages must meet a prevailing wage test by submitting a request for a prevailing-wage determination to the state employment service, or by using a recognized wage survey for the area in which the employer does business and in which the alien will work. Following a prevailing wage determination, the employer must complete a labor condition attestation. It must be posted in two or more conspicuous places in the place of employment for a total of at least ten days, and a copy must be furnished to the labor bargaining representative.
H-1B visas are limited to 115,000 for fiscal year 1999. As of April 30, 1999, the INS had recorded 103,753 petitions against the cap for FY99. As of April 30, there were 42,376 H-1B petitions pending at the four INS service centers. Since, on average, the Service approves 92 percent of the H-1B petitions it receives, INS reached the cap for this fiscal year in April. Application is made to an INS service center by completing INS Form I-129, with H Supplement, and by submitting an INS filing fee of $110 and a separate fee of $500 in compliance with the American Competitiveness and Workforce Improvement Act of 1998.
The L visa is for intracompany transferees and is available to foreign nationals who have worked abroad for at least one continuous year within the preceding three years for an entity affiliated with the U.S. business (the petitioner). The U.S. parent or subsidiary must conduct business in the United States and at least one other country for the duration of the L visaholder’s stay in the United States.
Foreign nationals qualify for this visa by showing either "executive capacity," "managerial capacity" (L-1A), or "specialized knowledge" (L-1B). The visa is valid for seven years for those in executive and managerial categories, and for five years for those with specialized knowledge.
Individual petitions must be submitted to INS service centers with the required $110 fee. Blanket petitions (approval for at least ten "L" visa executives, managers, or aliens with specialized knowledge during the past 12 months) may be filed with the U.S. consulate in the country in which the overseas qualifying entity does business. To qualify for blanket treatment, the petitioning business may also show that it has U.S. subsidiaries or affiliates with combined annual sales of at least $25 million, or has a U.S. workforce of at least 1,000 employees.
Trade (NAFTA) Visas
U.S. employers hiring Canadians and Mexicans can benefit from the TN visa, which is governed by the North American Free Trade Agreement of January 1994 (NAFTA). This visa category has become more important to U.S. businesses because the visa cap for H-1B visas has been reached prior to the end of the year for the past three fiscal years.
TN visa status is available to only 63 professions that are listed in NAFTA Annex 1603. A licentiatura degree (normally five years) is an alternative to the bachelor’s degree, which need not be obtained in a four-year program. Canadians and Mexicans in TN visa status are expressly prohibited from engaging in self-employment.
While U.S. businesses may file petitions for Canadians at a Class A U.S. port of entry, a U.S. airport handling international traffic, or a U.S. preclearance/preflight inspection station, petitions for Mexicans may be filed only at the INS Nebraska Service Center.
Canadian and Mexican applicants are issued an INS Form I-94, Arrival-Departure Record, valid for a period not to exceed one year. Canadians may apply for an extension of stay directly at the port of entry or by the petitioner’s filing of INS Form I-129 at the INS service center. Mexicans must receive extensions through the petitioner’s filing of the I-129 form with the Nebraska Service Center. CL
Boyd F. Campbell practices immigration and nationality law in Montgomery, Alabama. He is immediate past chair and senior vice-chair of the ABA’s General Practice, Solo and Small Firm Division’s Immigration Law Committee.