Contributed by Ed McGinty

So You¹ want to do business in the U.S.! One of the issues You’ll need to understand and be able to do, is traveling to and from your home country and the U.S. In order to do this, you are going to need a Visa, which can be confusing, but we are here to help! To get a better understanding of the visa that you will need we will need to have an idea of (a) length of Your stays; (b) what You’ll be doing while in the U.S.; (c) the interrelationship between Your visits and the business venture; (d) the amount of money being invested and by whom; and (e) whether You’re already doing business in the US. After we determine this, we will help you obtain either an L, E, or H visa, which we explain in further detail below. It is important that you read about and understand these visas, but we will be here to help at any point along the way!

Immigration of Your Employees

If you or your employees plan on physically working in the U.S., a decision will need to be made about what type of U.S. Employment Visa to pursue. Initial visits to the U.S. can be accomplished with a simple B2 Visitor Visa, or if you are in a country where there is a Visa Waiver Program, an ESTA Visa. Visitor Visas are limited in time, and employees cannot be paid while in the U.S., however, they would be able to conduct business such as setting up a lease for office space or signing contracts with U.S. companies you plan to do business with. Once the initial framework of the business is set up, an Employment Visa will be required and you would want to apply for Employment Visas as soon as possible as there is significant processing time with U.S. Immigration (USCIS), and/or the U.S. Department of State (DOS).

There are three main types of Visas that are common to businesses or individuals looking to establish a U.S. presence: L Visa, H Visa, and E Visa. Below is a discussion of what they are, their features, and a comparison between them:

L Visa: The L Visa is the most common type of Employment Visa utilized by companies seeking to establish a U.S. presence and will be setting up a U.S. corporation or LLC. The main benefit is your company can send an executive/manager to the U.S. merely with the intention of setting up a business with a relatively small amount of documentary evidence needed to be approved by USCIS/DOS. You do not need the same type of “specialized skills” and education as you do with an H Visa and you do not need to make a large financial investment up front as needed with an E Visa. Once the business is set up, you can start sending employees to the U.S. to work at your U.S. entity with additional L Visas. Features of the L Visa include:

• Initial L Visas are for three years with an option to extend for an additional two years for an employee L Visa (L1B) or an additional four years for an executive/manager L Visa (L1A).
• L1 Visa holders can bring their spouse and children to the U.S. on derivative L Visas that would be valid as long and the primary L1 Visa holder is in status.
• Spouses are permitted to work. Children are not permitted to work but may attend school.
• Transition to Permanent Residency (Green Card) is available under certain conditions for both L1A and L1B

H Visa: H Visas (H1B) derive from the migrant’s “specialized skill” and education (Bachelor’s degree or higher) and the sponsorship of a U.S. company, whereas the L Visa derives from your business in your home country and in the U.S. USCIS maintains a list of “specialty occupations” and the intending migrant would have to have education and experience in those occupations. The job offer from the U.S. company would have to be for one of those “specialty occupations”. The U.S. company needs to show that there is a shortage in the U.S. labor market for that occupation. There is a cap on total H1B Visas granted per year. H1B employees must be paid the “prevailing wage” for their occupation (market rate). Features of the H Visa include:

• The H1B are good for up to six years.
• H1B Visa holder may change employers during the six year period whereas the L Visa must maintain employment with your company only.
• H1B Visa holders can bring their spouse and children to the U.S. on derivative H Visas that would be valid as long and the primary H1B Visa holder is in status.
• Spouses are permitted to work. Children are not permitted to work but may attend school.
• Transition to Permanent Residency (Green Card) is available if the U.S. employer sponsors the H1B employee for a Green Card.

E Visa: E Visas are essentially granted to an individual migrant; they are not “sponsored” by a foreign or U.S. company as with the L Visa or H Visa. The E Visa derives from the individual’s (or their company’s) (1) trade of goods and services with the U.S. or (2) significant investment (at least $200K to $500K) in a U.S. based company (a new business or controlling ownership stake in an existing U.S. business) that will employ Americans. The individual must generally have a personal stake (utilizing their own funds or assets) to support the trade or business. The main benefit of the E Visa is the Visa may be extended as long as the trade or business is ongoing. Once the trade or business is in existence, an E Visa holder may bring E Visa employees from outside the U.S. for executive/management positions or employees that have “special skills” required for the business to function. Features of the E Visa include:

• E Visas can be extended indefinitely as long as the underlying business is ongoing.
• E Visa holders can bring their spouse and children to the U.S. on derivative L Visas that would be valid as long and the primary E Visa holder is in status.
• Spouses are permitted to work. Children are not permitted to work but may attend school.
• Transition to Permanent Residency (Green Card) is available if a U.S. company sponsors the E Visa holder or under certain other conditions.