The skills and experience of senior personnel are crucial to the success of a new operation in the United States. But before you start deploying manpower stateside, you will need to get your immigration visas in order.
US immigration laws are highly complex and change regularly, so specialised legal advice is an absolute necessity. What follows is a sketch of the various visa options available and the requirements each entails.
The Visa Waiver Programme (VWP) allows you to travel to the US without a visa for ‘limited business purposes’ but does not allow you to take up employment. The VWP is intended for short, infrequent trips, of no more than 90 days duration, and is good for visiting trade shows, attending conferences, and for preliminary market research and pre-investment activity.
If you cumulatively spend more than 50% of your time in the United States in one year, you will almost certainly be denied further entry under the VWP. If you are denied an Electronic System Travel Authorisation (ESTA) at any time for whatever reason, you will require a visa for all future travel to the United States.
To travel to the US under the VWP, you must apply online for an ESTA in advance. To obtain an ESTA authorisation, you must possess a return, or onward, travel ticket indicating that you are not planning on staying permanently.
B for basic
If you cannot avail of the VW programme, you will need a visitor visa. The B-1 visa is for temporary visitors on business and the B-2 visa is for tourists. B-1 visas for Irish citizens are usually valid for 10 years but only allow holders entry into the US for a maximum of six months. The same restrictions on business activity apply to B-1 holders as to those on the VW programme: you are not allowed to take up employment in the US.
A B-1 visa application will probably require an interview with an American embassy official, during which you will be asked to provide evidence of the purpose of your planned visit and of the ties you have in Ireland – economic, family and social – to ensure that you won’t ‘overstay’.
L for longer
If you are setting up a US operation, you will need to be in the United States for a substantial period of time, so one possible option is an L-visa.
An L-1A visa is for managers and executives who previously worked with a foreign company and are transferring to the United States to work, for at least one year, with a new subsidiary company, or an affiliate company, or an American parent company. L-1A visas can be extended for up to a maximum of seven years.
An L-1B visa is for employees with specialised knowledge (SK) of a foreign company’s business systems and processes. An L-1B visa allows a maximum stay, including extensions, of five years. Generally, L-1B visas are more suitable for established US companies than for foreign start-ups trying to get a foothold in the American market.
Before applying for an L visa at the US embassy in Dublin, you must first gain petition approval from the US Citizenship and Immigration Service (USCIS).
E for easier
An E visa is for employees of foreign businesses in which the employee is a citizen of a country with which the US has a significant trade treaty. The employee must be entering the US to engage in ‘substantial international trade’ or to ‘develop and direct the operations of an enterprise that has, or is, investing in the United States’.
E visas are issued for a maximum of five years but, typically, for those employed by smaller organisations, they are usually granted for an initial two-year period, with renewals up to a maximum of five years at the discretion of the US Consulate.
The E-1 visa is for those who come from countries in which 50% or more of national trade is with the US, so it is not suitable for Irish citizens.
The E-2 visa is the closest thing to a ‘US start up visa’ for Irish entrepreneurs. E-2 applicants must be of the same nationality as the foreign entity that employs them and they must be engaged in an executive or supervisory capacity or have special qualifications essential to the enterprise.
There is a minimum investment requirement, usually at least US$100,000. E visa applications are more straightforward than L visa applications, with the process conducted at your local US consulate.
H for highly-skilled
H visas are for people who belong to speciality occupations. Applications must be approved by the US Department of Labour and petitioning companies must prove that the foreign employee will be paid a fair wage and will not displace US workers.
The H-1B visa is for highly-skilled workers who have a university degree or equivalent. A H-2B visa is for technical workers, such as employees posted to the US to install new machinery and teach Americans how to operate it. A H-3 is a training visa for employees availing of upskilling courses unavailable in their home country.
O for OMG
The O-1 visa is for individuals with extraordinary ability and/or achievement in the sciences, education, business, athletics, or the arts. The visa is initially granted for up to three years and can subsequently be extended for one year at a time, with no upper limit on the number of extensions that may be granted.
Another visa that applies to a small minority of applicants is the EB-5, which is for those who make substantial investments in the US economy, generally in excess of US$1 million.
Green for Go
Foreign nationals can be granted permanent residence, known as having a Green Card, based on continued employment in the US, or by showing you have a job offer.
Once you are granted a Green Card you are subject to US income tax assessment. Additionally, Green Card residents must maintain their status, for example, showing that they intend to be long-term residents of the US, although they may be temporarily resident elsewhere.
Employers may ‘sponsor’ a Green Card applicant by presenting evidence of a job offer. Often, applicants must already hold a temporary, unexpired visa, such as a B-1.
More information about the visa application process is available here.
The Irish-American law firm O’Brien & Associates runs regular updates on US visa requirements here.