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Crossing Borders, Part 3: Getting Your Technology Employee to the US

Crossing Borders, Part 2: Getting Your Technology Employee to Canada

In today’s global economy, the United States is a major player. Enterprises of all sizes have a presence in the United States, whether through foreign direct investment, strategic alliances, or simply having clientele in the U.S. Thus, being able to transfer personnel to the U.S. quickly and seamlessly has become a necessary component of business for many enterprises.

This article discusses three types of U.S. visas that can be used to transfer personnel to the U.S.: the H1B, L1 and TN.

The H-1B Visa: Entering the US to Work in a Specialty Occupation

The H-1B visa permits non-U.S. citizens to enter the United States and work within what is referred to as a “specialty occupation.”

To obtain H-1B status, a U.S. employer must submit a petition on your behalf. This article provides an overview of the basic requirements, rules, and procedures pertaining to the H-1B application process.

Specialty Occupation: 4-Year Bachelor’s Degree or Equivalent

To be eligible for an H-1B visa, you must have been offered a position with a U.S. employer to work within a specialty occupation. A job may qualify as a specialty occupation if it requires at least a four-year bachelor’s degree or its equivalent in work and/or educational experience.

Professions that will most certainly fall within the definition of a specialty occupation include, but are not limited to, software engineers and most IT professionals, lawyers, accountants, physicians, architects, social workers, professors, artists, pharmacists, chiropractors, librarians, computer system analysts, chemists and engineers.

If it is unclear as to whether or not your field of work will be considered a specialty occupation, you must assess the requirements of the offered position. If the position you have been offered requires at least a four-year bachelor’s degree, there is a good chance it will qualify as a specialty occupation.

If the job you have been offered does not require at least a four-year bachelor’s degree, then the position must require the equivalent of a four-year bachelors’ degree in work and/or educational experience.

The United States Citizenship and Immigration Services (USCIS) usually wants to see three years of specialized training and/or work experience for every year of university that you would have attended. Therefore, if you have not attended any university, you must have at least 12 years of professional experience.

Necessary for the Performance of the Job

It is very important to note that the offered position must require a professional with at least a four-year bachelor’s degree or its equivalent. Thus, if someone with less experience would be qualified for the offered job, the position is not a specialty occupation.

For example, an employer may seek to hire a bookkeeper with at least a four-year bachelor’s degree or 12 years of experience in the industry. However, the offered position would not be considered a specialty occupation because, even though the employer prefers to hire someone with extensive experience, such credentials are not necessary for the performance of the offered job.

Your H-1B status will expire after three years. Prior to its expiration, you may extend your H-1B for an additional three years, which means you may stay in the U.S. for a total of six years as an H-1B non-immigrant. However, under certain circumstances, you can extend your stay in the U.S. beyond six years as an H-1B visa-holder.

The L-1 Visa: Entering the US as a Company Transferee or Entrepreneur

The L-1 visa permits foreign companies to transfer managers, executives or employees with specialized skills to the company’s U.S. branch, subsidiary, affiliate or joint venture-partner.

The L-1 visa can be used by individuals and companies that already have a pre-existing business operation in the U.S. or individuals/companies who wish to establish a business in the United States. As such, the L-1 visa is often the visa of choice for established companies that have a presence in the U.S., companies seeking to set up operations in the U.S., and entrepreneurs who wish to open a business in the U.S.

Valid Relationship

A valid relationship between the foreign company and U.S. company must exist. A valid relationship will exist if the U.S. company is a parent, subsidiary, 50/50 joint venture partner, branch, or affiliate of the foreign company.

In essence, for two companies to have a valid relationship, the U.S. and foreign business entities should have the same owners (i.e. directors, partners, shareholders, etc.).

Foreign Company Must Continue its Operations Abroad

The foreign company must continue to do business outside of the United States for the entire duration of the L-1 visa. Thus, during the term of the non-immigrant’s L-1 status, the foreign company may not close all of its non-U.S. operations.

However, the company may relocate its non-U.S. operations. For example, a company with its main operation in India and a branch office in the U.S. may move its Indian operations to Canada after conducting an L-1 transfer. Such relocation is authorized as long as the company maintains an office outside of the United States.

If L-1 companies were permitted to cease all non-U.S. operations, the L-1 visa-holder would not be able to relocate back to the foreign company upon expiration of his L-1 status, which of course would compromise the temporary nature of the visa.

Transferee Must Have Worked Outside of the U.S.

To be eligible for an L-1 visa, a transferee must have held an executive or managerial role in the company or a position requiring specialized knowledge. The transferee must have held such a position with the foreign company for at least one full year within the three years immediately preceding the L-1 visa application date.

It is imperative that the transferee’s work was performed outside of the U.S. for at least one full year without interruption. For example, if within the three years prior to the date of the L-1 application, the transferee worked as a manager for one year, but six months of that year was spent working in the United States for the foreign company’s U.S. branch, the applicant would not qualify for an L-1 visa.

In such a situation, the transferee was not working outside of the U.S. as a manager for the company for at least a year without interruption, but instead only worked outside of the U.S. for six months without interruption.

Executive, Manager or Specialist

As noted above, to be eligible for the L-1 visa, the transferee must have held an executive or managerial role in the company, or a position requiring specialized knowledge.

Your L-1 status will be granted initially for one to three years with extensions available in two-year increments.

If you enter the U.S. as a manager or executive, you will be entering the country as what is referred to as an “L-1A visa-holder.” Those who enter the U.S. as an employee with specialized knowledge are referred to as “L-1B visa-holders.” An L-1A visa-holder may stay in the U.S. for up to seven years, while an L-1B transferee may reside in the U.S. for no more than five years.

Upon the expiration of your term as an L-1 visa-holder, you must leave the U.S. for at least one year and return to your post within the foreign company.

The TN Visa: Entering the US as a Canadian or Mexican Professional

The NAFTA Treaty visa (TN) is a product of the North American Free Trade Agreement (NAFTA), an agreement signed by the governments of the United States, Canada and Mexico, which created a trilateral trade bloc in North America.

TN status permits Canadian and Mexican citizens to work in the United States so long as the applicant fits within a certain occupational category. Though the TN is a temporary visa, it may be renewed in two-to-three year increments. Currently, there is no cap on the amount of times it can be renewed.

Furthermore, TN applicants may bring their accompanying spouse and children into the United States upon entry or after the applicant has been granted TN status.

TN status can be attained at the port of entry into the United States (i.e. the United States border or airport in Canada) generally within 40 minutes or less. Unlike most visas, TN status does not require the completion of forms and is not restricted by quotas or waiting periods. Thus, TN status is generally considered the quickest and most easily attainable work visa for Canadians and Mexicans who qualify.

To obtain a TN visa, the applicant must meet the following requirements:

  1. Citizenship: To obtain a TN-1 visa you must be a Canadian or Mexican citizen. Thus, Canadian/Mexican landed immigrants and non-citizens are ineligible for TN status.
  2. Employment Offer: You must have an offer of employment from a business located in the United States. The employment offer must not be tentative, however. In other words, your employment must be guaranteed on the condition you receive TN non-immigrant status.
  3. Temporary Intent: TN status is a non-immigrant visa, which means you may only stay in the United States temporarily while in TN status. Accordingly, while applying for TN status at the United States port of entry, it is imperative that if questioned, you express temporary intent — that is, the intent to return to Canada upon the expiration of your visa.
  4. Temporary Duration: Your employment in the United States must be intended to last for no longer than three years. However, at the end of the three-year term, you and/or your employer may renew the visa for another three-year term. There is no limit on the amount of times your TN status may be renewed. Nonetheless, upon each renewal you must have temporary intent.
  5. Occupational Category: TN applicants must be offered a position as a professional that falls under the category of occupations listed in Chapter 16 of NAFTA, Appendix 1603.D.1 (the “Schedule of Professions”). The profession must be exactly the same as one of the professions listed in the aforesaid schedule or you will not qualify for TN status.
  6. Position Requires a NAFTA Professional: The position you have been offered must actually require a NAFTA professional. For example, if you are seeking to enter the United States under TN status as a lawyer, but you will actually be working as a journalist, and thus the position does not actually require someone who is licensed as a lawyer, then you will not be granted TN status.
  7. Educational and/or Experiential Qualification: You must meet the educational and/or experience requirements for the profession as set out in the Schedule of Professions. Unless otherwise noted, each profession requires at least a baccalaureate or licenciatura degree that is directly related to the given profession. However, many of the professions listed in the schedule only require experience and/or post-secondary certification other than a baccalaureate or licenciatura degree.
  8. Licensure Requirement: If applicable, you must have the relevant license required to engage in the given profession within the particular location in the United States where you will be working. This requirement only applies if licensure is necessary to practice within the given field. This requirement is purely profession-specific.
  9. No strike or lock-out: To obtain a TN visa, your prospective employer must not be experiencing a strike or lockout. However, even if the company is currently engaged in a strike or lockout, it is possible that this event may not prohibit you from receiving a TN if it is wholly unrelated to your position.
  10. Healthcare Professionals: Certain healthcare professionals must complete a visa screening requirement prior to applying at the border.

Spouses and Children

TN family members consist of spouses and children. Thus, a mother, aunt, cousin, brother and so on are not considered a TN family member for admission purposes.

The TN visa-holder’s spouse and unmarried children under the age of 21 may also enter the United States accompanying or following the TN visa-holder, and these individuals are referred to as “Free Trade Dependents” (TD). However, the family member must demonstrate a bona fide spousal or parent-child relationship to you.

Spouses and children cannot work while in the United States in TD status, but they are permitted to study.

Non-Canadian Family Member

Unlike TN visa holders, TDs do not have to be citizens of Canada or Mexico to enter the United States as non-immigrants.

However, non-Canadian/Mexican TDs must follow an application process that is considerably more extensive and less straightforward than their citizen counterparts.

Ife Ashabo, a member of Heydary Hamilton, is a U.S. immigration attorney (Illinois) and a licensed foreign legal consultant (Ontario).

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