U.S. Visa Requirements for Staffing U.S. Projects

A valued customer wants its US office to have the benefit of your company's services, with which it has been very pleased.  Talk about low-hanging fruit!  But how will you get your staff into the United States to pick it?

Unless your employees are US citizens or green card holders, they will need US work visas to provide these services in the United States.  A common fallacy about the US "visa waiver" program is that it allows someone to work in the United States for up to 90 days before the person needs to obtain a work visa. 

This is not so.  If the purpose of the visit to the US is to work, an employee will need a visa.  "Work" in this context means being actively engaged in "productive employment" and, although there are some exceptions, that phrase means providing an income-generating service or producing a product there.  This principle applies regardless of the length of time this "productive employment" in the United States lasts, even if it is only for one day. 

The US immigration system offers an alphabet soup of work visa categories from which to chose, assuming your company will supply a service at your client's US office and not merely provide staff to fill positions there.  The visa categories most likely to be of use for your employees are L-1 (intercompany transferee) visas, E-2 (treaty investor) visas, and the H-1B (specialty occupation) visas.  Factors that can affect which visa category will be best for any particular employee include:

• nationality of the employee
• nationality of the majority of the ultimate owners of your company
• whether the position will be (a) executive or senior managerial or (b) technical
• more specifically, the duties and tasks the employee will perform on the US project
• how well a US project job description relates to a particular employee's qualifications and level of experience
• the length of time the employee has been employed in your company or group. 

L-1 visas can be obtained relatively quickly.  Your employees must have worked within your group of companies for at least a year in an executive, managerial or "specialized knowledge" position, and they must be going to work in any one of these capacities on the US project.  The narrow L-1 definitions of "specialized knowledge" and "manager" may reduce the usefulness of this option. 

Qualifying employees will receive only one year L-1 visas initially; they and your American business will need to go through the whole process again for them to work longer.  The government filing fees will be in the order of $2,300 for each employee each time; total processing time can be about 9-10 weeks. 

The E-2 visa category could be the most suitable and cost-efficient option.  If a British-owned business is making a substantial investment in establishing a business in the US, British employees can qualify for E-2 visas.  The "substantial investment" can be relatively low for a service business like the one you will be creating for the US project.  Most of your staff will need to have skill sets not readily available in the US market.  In all likelihood, qualifying employees will receive two year E-2 visas. 

The registration process at the US Embassy in London currently takes about 90 days; after that, an E-2 visa can be obtained in about 3 weeks.  The registration is valid for up to five years, during which time qualifying employees need only apply for their visas.  There is no government fee for treaty investor registration; so, government processing fees are $495 per employee.

H-1B visas are theoretically an option, but this option is severely restricted by the annual limit on the number of H-1B petitions that can be approved each year.  This year's allocation was exhausted in February; new numbers will become available in April but only for visa applications filed in October. 

Nevertheless, if this potential uncertainty is acceptable or the only option, H-1B applicants must be "professionals" and the US project position must be a relevant professional position.  A petition must be accompanied by a "labor certification" - prescribed evidence that you will pay your employee the prevailing wage for the occupation in the local US labor market.

All of these visa categories require you to have a US-based employer.  Generally, setting up a company in any of the US states is not difficult or time-consuming.  But this will have US and UK tax implications for both your company and your employees that should be carefully considered before this is done.  The ownership structure of the American company may also affect the visa options for your employees.

Republished with permission of Director of Finance.