Chapter 6: Employment Visas
Specifically, the Kauffman Foundation, a leading startup and entrepreneurship research organization, has found that immigrants are more than twice as likely to start a new business than native-born Americans. As the number of foreign-born entrepreneurs continues its steady climb, it is unsurprising that recent immigration reform regarding employment visas in the U.S. has been compelled to address this crucial issue.
With approximately 25 percent of technology and engineering startups founded by at least one immigrant founder, and nearly 45 percent of Silicon Valley startups launched with at least one immigrant founder, so foreign-born entrepreneurs and employment visas are a crucial asset to U.S. economic vitality. Despite efforts to streamline the visa process for foreign entrepreneurs, the path to obtaining a U.S. visa to start or participate in a business remains a labyrinth of arcane rules.
This section is designed to provide quick access to the various employment visas that are available to foreign entrepreneurs seeking to establish or join a business inside the U.S. It is not exhaustive, so discussing alternative options with a qualified immigration attorney is always recommended. It will, however, outline some of the more common routes foreign entrepreneurs pursue when seeking a U.S. visa to start or participate in a domestic business.
B-1 Business Visitor
This short-term visa is valid for only three to six months, and may be extended only once for an additional six month. It is not a work visa. It is intended for individuals who are visiting the U.S. to attend business meetings, network, obtain funding, secure office space, and negotiate contracts or other business.
E-2 Treaty Investor Visa
This non-immigrant visa allows a non-U.S. citizen who controls a substantial investment to work inside the country. The U.S. Citizenship and Immigration Services (USCIS) requires an E-2 visa applicant to submit extensive documentation to prove their investment.
To be eligible for an E-2 Investor visa, the applicant must be from a treaty investor country that has reciprocity with the U.S. A minimum $100,000 dollars investment is initially required. Startups are required to demonstrate an investment that will support starting and operating the business, so the USCIS uses a sliding scale appropriate to the business and its needs to determine the sufficiency of capitalization.
An E-2 visa is usually renewed every two years and there is no limit on the number of times it can be renewed, and there are no restrictions on leaving or re-entering the country. That is something to think about when considering employment visas.
L-1 Intracompany Transferee Visa
This non-immigrant visa is generally available to executives and managers of a company with offices in the applicant’s country and in the U.S. It requires the employee to have worked in the foreign office for at least one year within three years prior to application. The L-1 visa is also used to open a new U.S. office. Within the realm of similar employment visas is the L-1B which is designed to accommodate individuals who are not managers or executives, but who have specialized knowledge.
H-1B Specialty Occupation Visa
Also a non-immigrant visa, the H-1B is generally available to a company’s employees. The USCIS requires compliance with a lengthy list of qualifications including USCIS-issues labor certifications. The number of these visas is also limited.
Essentially, this visa allows U.S. employers to temporarily hire foreign workers in specialty occupations. A “specialty occupation” is defined as one that requires theoretical and practical application of highly specialized knowledge in a field such as biotechnology, chemistry, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, law, accounting, business specialties, theology, and the arts. It further requires a minimum educational level of a bachelor’s degree or its equivalent. Similarly, if a license is required to practice in the worker’s particular field (e.g., professional engineer), then the worker must also obtain the required state license.
An H-1B work-authorization is limited to employment with the sponsoring employer. If an H-1B foreign worker is dismissed or quits their position with the sponsoring employer, the employee is required to apply for alternative non-immigrant status, secure employment with another employer, or leave the U.S. If the worker finds employment with a different employer, then the new application must be granted and their visa status modified to reflect the reclassification.
O-1 Extraordinary Ability and Achievement Visa
This non-immigrant option is available to individuals with exceptional abilities in the sciences, arts, education, business, or athletics. The chief classifications of these employment visas are:
- O-1A: Individuals with extraordinary ability in the sciences, education, business, or athletics (excluding the arts, motion pictures or television industry)
- O-1B: Individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
- O-2: Individuals who will accompany an O-1 artist or athlete to assist in a specific event or performance.
- O-3: Individuals who are the spouse or children of O-1’s and O-2’s
J-1 Exchange Visitor
This J-1 visa is widely used by students and professors who are accepted to participate in approved study and work-based visitor programs.
F-1 / Optional Practical Training (OPT)
An F-1 student is eligible for a work authorization after completing their first full academic year. An F-1 student who qualifies for a science, technology, engineering, or mathematics (STEM) degree is eligible for a 17-month extension after completing graduate studies.
A student in their first academic year might be able to start a company if it is not located off-campus. Once the first academic is completed, the student may be eligible to both start and work at an off-campus company subject to specific restrictions and conditions.
There are three different types of off-campus employment F-1 students are eligible for:
- Curricular Practical Training (CPT)
- Optional Practical Training (OPT) (pre- or post-completion)
- Science, Technology, Engineering and Mathematics (STEM) Optional Practical Training Extension (OPT)
Any off-campus employment after the first academic year must be related to the area of study and be authorized by the designated school official and by the U.S. Citizenship and Immigration Services (USCIS) prior to starting any work. In the most general of terms, F1 students are prohibited from ‘engaging in business.’ At the same time, students on F1 visa are not expressly forbidden from ‘establishing’ their own business since they are allowed to engage in ‘preliminary business planning.’
EB-1 Extraordinary Ability Visa
An EB-1 visa is used to obtain employment-based permanent residency. It is generally intended for “priority workers” who are identified as foreign workers with “extraordinary abilities.” This classification usually consists of senior executives and managers who are transferred to the U.S. and those who qualify as “outstanding professors or researchers.”
EB-2 Advanced Degree Professional and Exceptional Ability Immigrant Visas
These visas generally require proof of a job offer from an employer and a DOL labor certification. EB-2 visas occasionally are granted to individuals who are seeking to waive the DOL labor certification. Specifically, subsection (C) does not require an applicant to have an employer. An advanced degree (masters and higher) or an exceptional ability in your field are required in addition to showing that the defined exceptional ability is in the national interest of the United States.
EB-5 Immigrant Investor Visa
The EB-5 Investor Visa requires at least a $1 million dollar investment ($950,000 dollars if the business or investment is located in a rural area). This program allows entrepreneurs, their spouses, and unmarried children under the age of 21 to apply for a green card (i.e., permanent residence) if they meet the following requirements:
- Make the necessary investment in a commercial enterprise within the U.S.; and
- Plan to create or preserve ten permanent full-time jobs for qualified U.S. workers.
In addition to obtaining visas from the USCIS, the Department of Labor (DOL) has very specific requirements that employers must comply with when hiring foreign workers and utilizing employment visas. The following two sections are the most relevant to U.S. startups, particularly those in the high tech industry.
Immigration and Nationality Act (INA): Foreign Workers Immigrating to the U.S. for Permanent Employment
The applicable provision – Section 212(a)(5)(A) – of INA applies to employers who will be hiring foreign workers immigrating to the United States for permanent employment.
The first requirement an employer must satisfy is to obtain a permanent labor certification from the Department of Labor. This document certifies to the U.S. Citizenship and Immigration Services (USCIS) two things: (1) that no U.S. workers are able, willing, available, or qualified to accept the job, and (2) that the alien’s employment will not adversely impact the wages or working conditions of similarly situated resident workers.
There is a fairly elaborate set of prerequisites that must be satisfied prior to applying for the certification. These include providing proof of adequate recruitment to locate U.S. workers, as well as a prevailing wage determination.
Because this process involves a labyrinth of complicated rules and regulations, it is advisable to seek an immigration attorney who will help guide you through the required steps.
There are no poster requirements. There are, however, certain requirements that notice be provided to bargaining representatives or employees at the place of employment if there is no bargaining representative.
All relevant documents must be retained for five years from the date of filing the Application for Permanent Employment Certification.
Penalties and Sanctions
Potential fraud or misrepresentation discovered prior to a final determination on the issuance of employment visas will result in a referral to the Department of Homeland Security (DHS). Additional penalties can include being barred from filing future applications for up to three years, invalidating an issued certification, and referrals to other relevant governmental entities for further investigation.
Immigration And Nationality Act (INA): Temporary Nonagricultural Workers
Employers seeking to hire temporary nonagricultural workers for temporary jobs in the U.S. in the absence of qualified resident workers are subject to H-2B regulations. Eligibility is determined after consultation between DHS, DOL, and all other relevant government agencies.
The number of visas issued under the H-2B program during any fiscal year is capped at 66,000 and generally cannot be issued for longer than a nine month period. The procedure for obtaining an H-2B visa is similar to that for immigrating workers: employers must obtain a labor certification from DOL representing that there are U.S. workers available to perform the work and the employment will not have a detrimental impact on the wages or working conditions of similarly situated employees.
The process for securing an H-2B visa involves an intricate maze of legal rules and regulations demanding scrupulous attention to each step. If you are considering hiring a foreign worker temporarily, then the best route is to seek legal guidance from an immigration attorney.
Posters advising H-2B workers of their rights and protections must be placed in an obvious location
Whether you are an employer seeking to engage a foreign worker, or a non-U.S. citizen whose objective is to work or start a business in the U.S., this list of employment visas can give you a better understanding of some of the available paths to living and working inside the country. Engaging a qualified U.S. immigration attorney will help you navigate through the rules and process and can ensure a successful experience.
Chapter 6 Checklist
In summary, we covered how to…