Considerations for Entrepreneurs and Business Owners: Sponsoring Foreign Employees to Work in the Un-Considerations for Entrepreneurs and Business Owners: Sponsoring Foreign Employees to Work in the Un-【移投策】

Considerations for Entrepreneurs and Business Owners: Sponsoring Foreign Employees to Work in the Un

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2017-09-30

Many clients, particularly entrepreneurs and business owners, who are considering immigrating to the United States are looking to either start a new business or start a new American branch of an existing business. After obtaining permanent residency themselves, possibly through a self-petitioned EB-1A I-140 as an alien of extraordinary ability, a principle concern becomes how to staff the U.S. business entity. The U.S. is ripe with talent and hiring locally is always an option, but there are any number of reasons the client might prefer to hire someone from outside the United States, including the possession of unique knowledge from employment at an affiliate abroad, a lack of available workers in the United States, or the employee may just be extraordinarily talented at what they do. Below are a few simple descriptions of nonimmigrant work visa categories to equip you to answer client questions.  

The L-1A Intracompany Transferee Executive or Manager

The L-1A Visa allows a U.S. business entity to sponsor executives or managers from a related foreign business entity to work for the U.S. business as an executive or manager. In order to take advantage of the L-1A the two businesses must have a legally documented qualifying relationship (branch office, parent/subsidiary, or affiliates), each business must be actively doing business, the employee must work as either an executive or a manager abroad, and the employee must have been employed as an executive or manager abroad for at least one full year.

The L-1B Intracompany Transferee with Specialized or Advanced Knowledge

The L-1B has the same requirements as the L-1A with one difference. Instead of an executive or manager, the employee must simply possess specialized or advanced knowledge which is specific to the employer. This means the employee has specialized knowledge of the business’s internal products, services, research, equipment, techniques, management, or other advanced level of knowledge or expertise in the business’s processes and procedures. Put simply, the employee has to possess knowledge specific to the employer that no one outside the employer will have. For example, knowledge of how to use word processing software is not special. Knowledge of how to use a proprietary database technology may be special.

The H-1B Visa for Specialty Occupations

One of the most common temporary work visas, the H-1B allows employers to sponsor employees working in specialty occupations. Specialty occupations are those which require the employee to possess knowledge and skills typically associated with possession of at least a bachelor’s degree. A very large number of occupations and a very large number of individuals could theoretically qualify for an H-1B visa, but because only a limited number are available each year this can be a slow and unreliable way to hire an employee from abroad. For profit businesses can only file for new H-1B visas once per year in April and because more people apply each year than there are new visas available all petitions are subjected to a lottery to determine which petitions receive visas. 85,000 visas are available each fiscal year and in recent years the government has received over 200,000 petitions each year.

The O-1 Visa for Individuals with Extraordinary Ability

The most flexible of the temporary work visas, the O-1 visa also has the highest legal standard. Its requirements are nearly identical to the EB-1A and the individual must be able to demonstrate their extraordinary ability in the sciences, education, business, athletics, the arts, or the motion picture/television industry by satisfying at least three out of eight evidence categories. This visa type requires careful assessment by a U.S. immigration attorney, but it can be an excellent avenue for hiring extreme high achievers from abroad who do not qualify for an L-1A or L-1B and need to start in a faster more reliable timeframe than the H-1B.

It should go without saying that each element of the legal requirements for the above visa types is significantly more complex than just the information presented here, but this basic information may help ease client and potential client concerns regarding the ability to hire trusted and reliable employees from abroad to work for a new U.S. business endeavor. Specific cases require careful assessment by a U.S. immigration attorney, but the answer to the question “is it possible to sponsor someone from China to work for my new U.S. business?” is an optimistic maybe. 


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