In this hour-long webinar with accompanying transcript, attorney Russell Ford presents frequently asked questions about Seasonal and Temporary worker visas, including:
- H-2B Visas
- H-3 Visas
- J-1 Visas
- F-1 Student Visas
- TN Visas
- P-1 & P-3 Visas
- L-1 Visas
- E-1 & E-3 Visas
- B-1 Visas
For more in-depth information, download our complimentary Student and Exchange Visitor Program Guide or J-1 Visa Guide Waivers for Healthcare Employers. If you have questions about hiring temporary or seasonal workers or other business immigration concerns, contact our attorneys today.
Seasonal and temporary worker visa issues
Transcript for Video
Good afternoon, and welcome to today’s webinar presented by FordMurray. It is our special holiday edition regarding seasonal and temporary workers, how you can employ them in your workforce from an immigration perspective, and we appreciate you being on our webinar today to learn about this timely topic. My name is Russel Ford. I’m an attorney with FordMurray, and I will be presenting today’s webinar.
Our agenda for today will cover some of the best options for your organization in bringing over temporary or seasonal workers from outside the US. We’ll go over options that are available to multinational organizations, as opposed to strictly domestic organizations. Multinational organizations have a few more options, and a little more flexibility, so we’ll go over that and what they can do to utilize that flexibility to their advantage. And we’ll go over the most typical question that we get from clients in this realm, which is, well, they’re only short term, sometimes less than a month, sometimes only a couple months. Can I really just bring them in on the visitor status?
Will anybody really care, and what is the impact? We’ll cover a little bit of that so you can get a better feel and understanding for the true purpose of the visitor visa, and why that may not be your best idea for your organization. Okay, jumping into our first option, we’re looking at the most common seasonal or temporary worker visa option, which is the H-2B. The H-2B is for non-agricultural positions. It is for positions that are strictly temporary in nature. Under new guidance from the USCIS, that temporary nature is actually nine months now.
H2B Temporary Visas
I know the slide says 10, and my apologies, but it’s nine months under the most recent guidance. And there’s an asterisk for that duration, because there is one category of H-2B which is allowed to avoid that. An H-2B, again, is for the temporary folks, and temporary is defined in the regulation as work that will have a finite period. It’s not open ended. It’s not at will. It’s a definite duration, whether it’s three days, all the way up to nine months, it has a definite duration. The work is full time, meaning at least 35 hours per week, and depending on the four types of H-2B, there are different ways that those workers can be categorized.
To prove your need as an employer or as an organization as temporary, there is a one-time occurrence where you can show as an organization you haven’t employed seasonal or non-seasonal workers within that position. You’re not going to have to employer workers in that position the future. This would be an example of when an employer signs a large contract, needs to fulfill that contract, needs a boost in the workforce to cover the contract duration, let’s say it’s six months, and this is a one-time contract deal. They don’t anticipate getting another contract like this, so they can bring workers in, fill that contract, get the work done, and move forward.
There is the true seasonal, where an organization can show that it has a season or a pattern that recurs every year. A prime example here in Maine is the ski resorts, where once the season starts they need more workers to come in, maintain the resort, maintain the grounds, work the mountain, and do various activities that are during their busiest time. And the busiest time is shown by their bank records, is shown by their sales, and they can demonstrate that between November and May, they have a much higher rate of occupancy, and they have a much higher rate of sales than they do other times of the year, and that recurs every year, and hence is a seasonal or recurring event.
Peak load would be, using the holidays as a prime example since this is our special holiday edition, would be a department store who has a warehouse, and they have to get large amounts of packages out between Halloween and New Year for Christmas, Kwanzaa, Hanukah. They have to make sure these packages are going out. They need extra workers in the warehouse. It’s their peak time of year. You’ve got permanent staff that work within the warehouse, and you need this uptick in staff for a short period of time just to cover that peak load need. The difference between this and a seasonal need would be, it’s not a recurring event.
Maybe it’s just one time that it happened. You had a large number of sales. Maybe it doesn’t happen every season, but it happens intermittently. Here and there you get a peak in business, and therefore you can’t tie it to a specific event, or you can’t tie it to a specific recurrence, so you go to the peak load need. And lastly is the intermittent need, where the employer can show that the worker is needed for a short duration, and the employer has not previously employed permanent or full time workers in the position.
Of these four, the one-time occurrence is where an employer can get past the nine-month duration period. Seasonal, peak load, intermittent, are all short term, short duration, can do it for nine months. I’m sorry, one time occurrence would be in the sense of, as an employer you have that contract that we used in the example. The contract might be for a ship builder who gets a large contract for a destroyer, has to build the destroyer. It’s a three-year project, while the H-2Bs could conceivably be built, or brought in, for that full three-year period, because this is a one-time occurrence.
Depending on how you define your need, will depend on the duration and the type of evidence that you have to present to demonstrate to the government that A, it’s temporary, but B, that it falls into one of these categories. The H-2B is a two stage process. Unlike most non-immigrant visas, the H-2B requires an initial step through The Department of Labor much like the green card process where you have to go through a labor certification process. The labor certification is a modified process, meaning less steps are required, or less advertisement is required, and that they are on an expedited track, so they don’t take eight months to adjudicate, because then your need would pass, but they do take some time to adjudicate and to process, and so planning is the key to an H-2B, primarily because their regulations indicate that as an employer, or as an organization, you can only start the labor certification process 90 days before your intended start date.
You’ve really got a three-month window in order to get everything coordinated, do your recruitment, file your labor certification, get the labor certification certified, file your I 129, get your I 129 approved, get the workers in from overseas through the embassy with their visas, and bring them in. Planning is the key on an H-2B, and working through the process quickly and efficiently is the key.
The labor certification, like any labor certification whether temporary or permanent, the employer still has to show they’ve advertised, they’ve recruited, they’ve interviewed, and they weren’t able to find workers to fill the position. Let’s say as a resort, you need an additional 25 staff for the peak season to take care of the hotel, or take care of the resort, to make sure that everything runs as it should. You’ll advertise for 25 positions, and if you happen to find five US workers who fit the bill, can do what you need them to do, complete their background checks, all of that, well, the labor certification can still go through, but it will only go through for 20 positions instead of 25, because that’s what you tell the government.
Well, I did my recruitment. I need 25. I found 5, but I still need 20. The H-2B is advantageous in that you can do one labor certification for multiple beneficiaries. If you’re going to do one labor certification for multiple beneficiaries, it’s got to be for one position, so as a resort, if you needed housekeepers, house cleaners, that would be one labor certification, but if you also needed grounds crew, that would be a second labor certification for those multiple positions. Each position would require its own labor certification, but if you needed multiple positions within that, or multiple employees within that position, then you could run one recruitment for groundskeepers, one recruitment for housekeepers, and still get through the process.
Likewise, once the labor certification is approved, you can list multiple beneficiaries on the I-129, assuming they’re all coming from the same location. A lot of times we’ll work with agencies who are getting workers in from different countries, whether it’s The Czech Republic, whether it’s Jamaica, whether it’s otherwise, and all of the workers will be coming from that one location. You’ll list 20 beneficiaries on the I-129. The USCIS will issue an approval notice that lists all 20 beneficiaries, and then all 20 beneficiaries will use that same approval notice with which to attain their visa at the embassy.
Because of the multiple stages, because of the coordination that’s required, because of the nature of the H-2B running through labor certification and like, it can be an expensive process, and for that reason employers, organizations, tend to view the H-2B as functional if, and only if, they have a need that outweighs the cost. I mean, if you were doing this for one employee for a 10 month period, that price tag might be difficult to swallow knowing that you’re only going to have that employee for a short duration, versus if you were bringing in 30 workers, running the labor certification, the I-129, all with that same price tag, then it becomes an efficient process.
You’re getting 30 workers almost for the price of one, and you, as a business, it makes strong business sense for you. Again, it’s usable for employers to bring workers in for a temporary need, but it’s most useful when the employer has multiple position openings within the organization that they can then do this process for.
H-3 Training Visas
The next category that we would look at is, or that we’re going to look at, is the H-3 trainee. This is for folks who are truly coming in, as it implies, to obtain training. You might have a situation where you’ve identified a worker, or more than one worker, outside of The US, who you think could benefit your organization either through training, and then placing them at another facility outside of The US, or vice versa, you might find just an individual that could be a benefit in your training program, and they could also obtain a benefit by working with your organization, getting some training, and then returning to their home country in order to work in their chosen field of training.
The key with the H-3 is, you have to prove that the individual cannot find the training in their home country, the position that you’re offering is not within the normal operation of your business, so you’re not bringing the trainee over, and then putting them into an open position that you’ve been unable to find a worker for, whether it’s on the line, whether it’s at your front desk, whatever the case may be. Any employment that they undertake in the H-3 training program has to be incidental to the training program, so you have to show that there is an actual formal training program, it’s got a classroom component.
They’re going to be supervised. There is structure to the training program. Ideally most of the training takes place through the classroom component, although we have done several training programs where there was a small classroom component, but a lot of the training was kind of on the job training, where they almost followed someone around, observed the position, engaged in hands on parts of the position while they were doing the hands on. The supervisor was there to say, “No, you need to do this,” or, “That was great, but maybe you could try it this way,” and gave formal, structured training during the on the job portion of it, and even that would be considered incidental employment.
And then the last key is showing that this training is going to benefit the beneficiary in securing employment outside of the US. You couldn’t necessarily use this to train someone to then take a full position with your company within The US. That’s frowned upon through the H-3. There are other avenues that we can look at if you’re seeking to achieve that goal. As a multi-national organization it’s conceivable that you have the advantage here where you could use the H-3 to train someone in The US, and then place them at one of your facilities outside of The US.
A lot of times what we see this for with our clients is, our clients are domestic, and they might have not so much an affiliation, but a contract, or a relationship with a foreign company. The foreign company will send its employees here to do training at The US company because they truly can’t get that training in their own home country, and then they go back to their job at the foreign employer. And this benefits the US employer because it solidifies their relationship with a client, or a relationship with an outside organization. It creates good will, and it also solidifies your market leadership with that outside organization.
It can be a useful tool for even domestic companies that do business with foreign companies. An H-3 trainee is limited to a 24 month stay in The US. Doesn’t have to be 24 months. It could be six. It could be eight. It could be ten. It depends on your formal training program, and it depends on the nature of the training that you’re trying to provide. Much like the H-2B, there is extensive documentation that the government wants to make sure that you are truly providing training.
They want extensive training materials. They want proof that the lack of the training in the home country is there. A lot of times that proof is by way of confirmation from the home country, whether that’s a letter from the embassy saying, “Yes, we’ve looked at this training program, and no training like this is available in such and such a country.” The internet has proven to be a valuable tool as to whether this training is available or not, but to me the biggest piece of evidence that we’ve used, and that has been accepted has been confirmation from the home country itself.
And then obviously the portion of incidental work, that evidence has to be sufficient. You have to be able to demonstrate that the training program is clear, that the training program has structure, the training program has supervision to ensure that the person is not coming over just to work. And again, like the H-2B, if you’ve got a formal training program, maybe it’s a manager training program, you can use that same training program for multiple H-3 trainees. You don’t necessarily have to re-invent the wheel for each trainee that comes in.
That can be, again, a nice way for either a multinational organization to train its own work force, or a domestic organization to train workers of relationship type companies where they work with or contract with a foreign entity. We mentioned that the H-3 had a component where the individual had to be headed back to their home country after the training program was over. And because of that, it can sometimes render that category not as effective for employers.
J-1 Trainee Visa
And that’s where this J, international exchange visitor, comes into play. There is a J-1 trainee category that does have, underlying it, that same premise, that an individual is getting training to ideally help them outside of The US. However, the J-1 has more flexibility in how that is applied, how that is looked at, and often times a J-1 can be an effective use of a trainee, or an intern, seasonal temporary worker who you want to, for lack of a better term, try out. You want to give them a chance to run through your training program to see if they’re going to be a solid manager, or a solid participant in your organization, or it might just be a true seasonal situation where you need interns during a certain time of year, and the J-1 provides an opportunity for you to bring in several interns to cover a particular season, or to cover a particular need, and run through an internship type of experience where they’re helping your organization get through one of those times.
The J-1 has many different categories, professors, research, scholars, so on. The ones that are most applicable to our topic today are the trainees and the interns. The trainees get a little longer duration. They can stay for up to 18 months. They can do the training either during their educational bachelor’s degree program, or after their bachelor’s degree program. If they are an intern, you have to show that they do have a degree, but they have less than one year of experience. The internship category can be somewhat limiting in terms of who you can use it for, but it can be a viable option. If they don’t have a degree, then you have to show that they have less than five years of experience.
And the internship is limited to a 12-month period. They can come in 12 months. The big key that is nice for employers is that dependents of the J-1 principle can apply for work authorization incident to their dependent status. If you have a trainee who’s coming in, and he or she is married, their spouse can apply for an EAD card, employment authorization document, that allows the spouse to work for you, or work for somebody else in any capacity, which can be advantageous in helping you recruit certain trainees who don’t want to uproot families, or don’t want to be away from their spouse for a duration of time, whereas the H-2B or the H-3, their spouses can still accompany them, but they can’t work, and sometimes families don’t have that option.
This gives employers and beneficiaries a huge advantage in allowing the spouse to also apply for work authorization. The downside for the J-1 is the fact that a lot of them can have what’s called a two year home residency requirement, meaning that at the completion of the J-1 program, the individual is required to return to their home country for two years to serve out this requirement before they can change status to another status in The United States, whether that be a visitor, or whether that be a work authorizing status like an H-1B, or let’s say you had a J-1 who came here and was a trainee.
They met a US citizen, fell in love, wanted to get married. If they had this two year home residency requirement, they wouldn’t be able to file for a green card until the fulfilled the requirement or have it waived. Often times the two year home residency requirement in this type of situation is tied to what’s called the exchange visitors skills list, and I provided the link herein, where you can go to this link, type in the country, and it will list all of the skills that are needed in that individual’s home country. And if the skill that they’re obtaining training on, or an internship in, matches a skill on the skills list, then you have an idea that this two year home residency requirement will apply, and it is something that you’re going to have to either navigate around, or they’re going to have to understand that it will apply to them, and they’re going to have to either go home and fulfill that requirement, or try to find some way to have the requirement waived.
The other advantage to the J-1 is, most J-1 programs are run by third party providers, where a company will go to the department of state, complete an application for a particular category, J-1 trainees for instance. The Department of State will review the program, will say, “Yes, you, company X, can bring in 200 trainees in a given calendar year.” The third party provider is then the arbiter of those 200. If you as an organization decide you need an intern or a trainee, you locate this trainee that you want.
You could go to the third-party provider and say, “Here is this person that we’ve identified for training.” They would vet the individual through an interview process, make sure the background checks out, make sure that your idea for the training makes sense, and they would issue the documents that are required for the individual to get the visa stamp. It almost allows you as an organization to bypass the government, so to speak, and it results in a much quicker process. Often times, for our clients, we get J-1s in less than 30 days, but because there’s a third party provider you’re looking at program fees.
Often times, because a J-1 requires that the company offer insurance, and a specific kind of insurance, you have to also buy that insurance from a third-party provider, as well as pay service fees. Those fees can add up relatively quickly, but the benefit: Faster processing, quicker turnarounds, and more flexibility in terms of what kind of training you can provide and obtain. What about employers that have colleges, universities, community colleges nearby where there are a plethora of international students currently at the school on F-1 status?
F-1 Student Visa
That can also be a beacon of temporary or seasonal workers for you. Often times, student workers, or students in F-1 status can obtain, excuse me, something called curricular practical training during their studies. If they can show that they’re a full time F-1 student, they’ve completed one year of study, and the work being offered by your organization is related to their major, then they can engage in a work study, internship, coop, or other type of practical experience where they can work at your organization part time, and during seasonal periods, to get experience, and to help you fill a need.
The other option for F-1s is optional practical training. This would be … Often times it’s utilized post-graduation, although there is a pre-graduation OPT. But for workers, or for students who are graduating, and haven’t line up a permanent position, and you as an employer may have a temporary position, and a temporary need, as long as that need relates to their major that they graduated in, then the student can obtain an EAD card. That’ll allow them to work for up to 12 months.
If it is pre-completion OPT, and they work for you part time, the good thing is that is deducted only half rate. If they worked two months at a part time position for you, they would really only utilize one month of their OPT time. And again, because they’re limited to 12 months, that can make a difference to an F-1 student.
If you have an institution, or an institution of higher education close to your organization, if you have a relationship with that institution of higher education, or if you don’t, this could be a great opportunity for you to begin fostering that relationship, especially with the career services department, where you can advertise, recruit, obtain seasonal temporary workers through the international student work force, or through the domestic student workforce for that matter.
But it can give you an opportunity to locate these types of employees in a different place, or a place you might not have thought of. International students need experience, well, domestic students too, need experience. They need something to put on their resume. They need relationships to help network their way into permanent positions, and for international students, because they’re limited to 12 months post-graduation, they really need to get this opportunity, and to foster these relationships so that they can build up a resume and try to find permanent employment, and stay here, and obtain H-1Bs, and things of that nature.
It could be an opportunity for you to try students out, almost interview them on the job, whether they work for you for several months in an F-1 status, OPT or CPT, you can. The other benefit as an employer, because the student is either working incident to status at CPT, or with an EAD card through OPT, no sponsorship as an organization is required by you. That individual can simply come to you, and it’s on them to demonstrate to the school that the work is related to their studies, and it’s on them to notify the school and to make sure that they stay in status.
And as an employer, the CPT or the EAD card give you the documentation you need to complete the I-9 and place them on payroll for that period of time. It is a cost savings operation as well, because you’re not paying for immigration attorneys. You’re not paying USCIS filing fees. You’re not having to engage in sponsorship, and things of that nature. And it gives you greater flexibility, and a larger workforce from which to pull from for these types of temporary or seasonal positions.
TN Visas for citizens of Canada or Mexico
Now, another category that’s often used for non-seasonal, more permanent positions, but does make sense in this context, is the TN, or the trade NAFTA. Now, the TN is only available to citizens of Canada and Mexico, and there is a very specific list of occupations in the NAFTA appendix. Again, we’ve listed here a link that lets you look at those occupations and see what those occupations entail.
The list is comprehensive, so there are a lot of positions that are available. Most of those positions require some kind of degree or diploma. In terms of seasonality or temporary, you’re going to use this mostly for higher level positions within your organization, or at least professional positions within your organization. It may not work if you’re looking to recruit housekeepers, or front office clerks, or things of that nature, but it does work for, like you’ve got a temporary need for software engineers, or you’ve got a temporary need for management consultants, or you’ve got a temporary need for nurses.
Whatever the case may be, this might be an opportunity for you to bring in a group from Canada, or Mexico, who have the requisite experience, have the requisite education. You pull them in, fill that temporary need. Because it’s under NAFTA, processing is a little easier. For Canadian citizens, they can make the application directly at the border, whether that’s at an international airport, or driving through at a crosscheck. For citizens of Mexico, they have to apply at the embassy, so that slows the process down slightly in the sense that they have to schedule an appointment, go to the interview, obtain the visa, get the visa and their passport, and then come in.
But even with that being said, for Canadian citizens, I mean, for a lot of the TN’s that we do, it’s a one, two-week turnaround before they could come in. Citizens of Mexico, often times it could be as little as 30 days to get the appointment, get their paperwork drafted, get the paperwork to them, get the interview and get the visa, and have them come in, which is still, comparatively speaking, much faster than doing an H-1B, an H-2B, or something of that nature.
If you’ve got a specific need for a professional type position, the individuals that you have located, or the individual that you have located is from Mexico or Canada, this might be a viable option for you, even if that need is only six months in duration. Now, a TN can be issued for up to three years, but it doesn’t have to be. If you’ve got a six month need, this can be an opportunity to still look at the TN and not dismiss it.
P-1 & P-3 Visas
What if you are an organization that runs an artistic endeavor, or runs an entertainment endeavor? South by Southwest in Austin, Texas comes to mind, or a similar type of festival, where there are performers. And you’re the host of the organization, or you are an organization that brings performers in for such an event, then you might want to look at the P option. The P is got several different categories. The most applicable to this type of arrangement is the P-1B, which is for performers within a group.
Group in the context of the P-1 statute means two or more. If you have a solo artist, or someone who is on their own, they’re not part of a group, then you might have to consider a different category like the O-1. Or there’s the P-3, if what that performance is what’s called a culturally unique program. One of the things that comes to mind is a particular style of dance. If that is unique to a particular culture, and let’s say you’ve got a group of 15 folks that are coming in, and they’re going to perform this type of dance.
And they’re going to perform at several events around the US, you as the sponsor organization could secure P-3s for them as a culturally unique program, and the P-3 could cover all of those events. And they could do their tour under the P-3. The culturally unique is actually quite a flexible definition. It basically requires that you demonstrate that what they’re doing is going to further the understanding of some type of art form. That’s a pretty broad definition.
If you are doing anything with any kind of artist or group who is performing, or will be performing, or will be teaching a certain art form or style, this is definitely a category to consider, and to think about. Again, as an employer, if you’re running a music festival, if you’re bringing folks in, sponsoring folks who perform at a music festival, or an art festival, or other type of event, it’s another category for you to consider, and for you to look at that will allow you to bring folks in from outside The US, and maybe create a little more diversity, a little more breadth within that festival and event.
All right. Let’s go to multinational organizations. We touched on it a little bit when we talked about the H-3 and the benefit that a multinational organization might have with that category. Some of the other visa categories that jump off the page for organizations that … And again I call them multinational, basically in my mind they have one or two offices outside The US, and one or two offices inside The US. That makes them multinational.
One of the things that jumps off the page for an organization like that is the L-1. Now, usually when you think of an L-1 as a multinational organization you’re thinking about a permanent placement, someone who’s coming over here long term to transfer from one of your offices to another office in The US. And that’s the most common use, but the L does have a great deal of flexibility, especially if you’re an employer that is qualified for a blanket L program, and can apply for your L’s directly at an embassy.
That can give you flexibility, and it can also give you an opportunity to identify workers from outside of The US that have a skillset you might need in The US for a short period of time just to train US workers, have an expertise that you might need in The US for a short period of time, or maybe they have a client contact. Let’s say one of your clients recently opened a domestic office, and they’ve only had contact with your office in The UK.
Well, maybe it benefits you to bring two or three of those contacts from The UK over to The US to establish The US relationship, further The US relationship, create the contacts, get that opportunity primed and ready, and then head back to the UK. The L-1 does not necessarily have to be just for a long term assignment, and it can be a viable short term option, especially in the sense that, if you’ve got all of the L-1 basics down there, the person has worked for at least one year out of the last three years for your company overseas. They’re coming to work for you in The US. The position is going to be managerial or specialized knowledge.
The position overseas was managerial or specialized knowledge. You can show the affiliated relationship between the two entities. If all of that is in place, you can obtain an L-1. It could be valid for up to three years, but not necessarily used for that full three year period. It could be used for six months, and they could go back to The UK. But if, for whatever reason, the person needs to come back a year later, well they’ve still got the visa stamp on their passport. They can use that visa stamp to come back in, and go back and forth.
The other advantage to that is, there is a concept in the L-1 rules known as intermittent L-1, where a company, or an individual, who’s spending less than six months per calendar year in the US, well the time limits don’t then apply. For an L-1A a person can stay in The US for up to seven years. For an L-1B it’s five years, but if they’re spending less than 180 days per year in The US each year, well, you can petition the government to go past that seven year limit.
It’s conceivable that an executive in The UK who just wants to, or who you need on a seasonal basis for two months a year during the busy season, you could get them an L. They could come in for two months during the busy season, go back home, and do that every year, and it wouldn’t necessarily be limited to a seven year period. They could do that every year for as long as you needed them to do it, because the limits wouldn’t apply. It is an option that, as an employer, you can look at as a flexible operation, or as a flexible category for some of these positions that you may have a need for either short term, recurring, and some of those other H-2B categories you had in mind, but you’ve got overseas operations from with which to draw.
E-1 & E-2 Visas
Another prime example is the E-1 or the E-2. Again, herein you’ve got a US organization that’s got affiliated entities overseas. The difference here might be the person you’ve identified doesn’t have one year of work experience with the organization. How else can I get them in? I don’t want to do the H-2B, because it’s only one person. Well, if you are a multinational organization that’s actually foreign owned, so your parent company is UK, and the individual is a UK national, holds UK citizenship, then you can look at this E-1 or E-2, because that individual shares the same nationality as the foreign entity that owns the overall organization.
If you are an organization primarily engaged in trade, which the definition is of an international exchange of goods or services between the US, and a majority of that trade has to occur between the parent company country, so in our example it was the UK … If the trade is primarily between The US, and the UK, which means, primarily is 50% or more, and the individual is a UK citizen, parent company is a UK company, then you can look at what’s called the E-1 treaty trader, which much like the L, specialized knowledge, manager executive, they can come in whether it’s short term assignment, one, two, three, four, five months, whether it’s recurring.
It gives them flexibility to move back and forth, and it doesn’t necessarily have to only be utilized for long term assignments. The E-2 treaty investor is for organizations that maybe aren’t engaged in trade, but if you can show that the foreign entity invested a substantial amount of cash into The US entity, that that investment was at risk, meaning that if The US entity had failed the foreign company would have lost the investment, then you can show that the person is entitled to an E-2.
Now, in the E-2 category, or the E-1, you’ve got to show that there is a commercial enterprise, which means that there has to be an actual organization that is doing business. It can’t be like a real estate investment trust where it’s a passive investment, and unfortunately it can’t be a non-profit organization. Non-profits are excluded from the E-2 category, or the E-1 category. The other thing to bear in mind is, there needs to be a requisite treaty between the home country and The US.
We’ve done a previous webinar on ease, which was very extensive in this category. If you think that the E might be applicable, or might suit your organization, I encourage you to go to our website www.fordmurraylaw.com, and click on the link to our prior webinars. And as I said, there’s a very extensive one on Es, as well as Ls, for that matter, if you wanted to learn more about the L as well.
Two others that jump out are the B-1, in lieu of H-1B. And what this is, is often times a B-1 is considered a business visitor, but there are special categories of B-1, in particular there’s one called the B-1 in lieu of H-1B. If you can show that the position that the person is going to undertake is an H-1B position, it requires a degree, the person has a degree, then this becomes applicable in the sense, or in the realm of, they’re going to stay on foreign entity’s payroll. And this is why the multinational portion comes into play.
If you can show that that individual is going to be paid by a foreign source, and but for that fact they would be eligible for an H-1B, then you can look at the B-1 in lieu of H-1B option. And the key here is, it gives you greater flexibility, because it’s a B-1 in the sense of, they can apply directly at the embassy for it. There’s no USCIS. The petition time is faster. Petition time is quicker. It’s more efficient.
And then you run into that situation, but the difference is the H-1B individual can work. They can come in. They can do local employment. They can work in a position, or in a need that you have in The US, so long as you can show that their remuneration is coming from overseas. The key here is, the B-1 in lieu of H-1B can be for a short term assignment as little as a month, all the way up to a 12 month assignment. It gives you great flexibility if you do have a seasonal or a temporary need, and it’s for a position that would be an H-1B type of position, and you’ve got a worker from overseas who maybe doesn’t qualify for the L, or you just don’t want to go through the L-1 process, this could be an opportunity for you to bring them in in a quicker, more efficient manner, and allow them to come in, conduct that work, obtain the B-1 in lieu of H-1B in a quicker, more efficient fashion, and come in for you and get things done.
The other category that we looked at, or that we look at from multinational organizations is tied to NAFTA, similar to the TN, and similar to the B-1 in lieu of H-1B. Under NAFTA there’s a specific category for business visitors, or visitors for business, which is very close to the B-1 in lieu of H-1B. It requires that the source for remuneration is outside The US. And then there’s a specific concept that they have to fulfill.
Like the B-1 in lieu of H-1B where you had to show it was an H-1B position … Oh, my apologies. Here, you have to show that what they’re doing is an authorized activity. And under NAFTA, the three most common authorized activities are to provide after sale services on a contract, to conduct marketing or provide marketing for the overseas entity, or to provide training or obtain training, either way, whether they’re coming in to get training, or they’re coming in to give training, is another opportunity for you to look at workers from your Canadian, or from your Mexican operations, and bringing them in in a faster, quicker fashion to allow for fulfilling that temporary, seasonal need.
Now we come to the last portion of our agenda, which was, what do we do for … We’ve got a need. It’s a very short term. In my example here I called it one month. Why can’t I just use a business visitor? Why do I have to meet one of these other categories? Why can’t I just have someone apply for a visitor status, come in, and then they can just do what I need them to do, and who’s going to get hurt?
Well, there’s been a real crackdown on visitors. The government asks more questions. They’re more cognizant of travel. And the reality is, for someone who’s a visitor, that entry is supposed to be limited for the sole purpose of them engaging in legitimate activity related to business. And then there’s a host of things that the government says are related to business. And if you look at the bottom of that slide, there was a Board of Immigration appeals decision that involved a tailor who came in from outside of The US to measure customers for suits that were going to be manufactured outside of The US, shipped from outside of The US, to clients within The US.
Because the government, the Board of Immigration Appeals, found that the principle place of business, and the profits were all going to happen outside of The US, then that was a legitimate B-1 activity. And from that decision, the government has tried to outline several things that they think are legitimate business activities.
You could engage in commercial transactions that don’t involve employment in the US. The example of the tailor, you’re a merchant who’s taking orders for things that are going to be manufactured outside The US. You’re coming in to negotiate contracts. You’re coming in to consult with business associates, to engage in litigation, participate in a conference, do independent research here where you’re going to do the research, but then you’re going to finish the project outside of The US.
These are all things that the government looks at. If your activities that you’re proposing are local employment, and they don’t fall within the legitimate business activities, what you run the risk of is not just that person being refused entry, but if they see a pattern or practice of you having several visitors trying to come in, it could lead to the company being flagged in the system, where all of your visa entries are then questioned harder, denied entry more frequently. Worst case scenario, if they really see a pattern or practice of abuse, is they just completely bar your organization from using the B-1 program at all.
And so, you have to remember that the B-1, or visa waiver, is not intended to allow beneficiaries to work in the US, and it’s not intended for organizations to circumvent the seasonal or temporary categories just because they don’t want to spend the money on a one or two-month assignment. Even though you may get a few folks in on visitor status, and you may never get audited, and you may never get quote, unquote caught, the reality is the visitor status is truly a visitor status.
Its sole purpose was to create a category for folks to come in and do a very limited set of activities. And abuse of that program can lead to penalties for the individual. It could lead to penalties for the company, and can lead to problems for your organization. And there’s no reason to invite such issues and problems when there are so many other categories available to you to use, so many creative ways to bring in seasonal, temporary workers, fill that temporary need, get the job done, and do it the right way.
We thank you for your time on this webinar today. We appreciate your attendance. As always, if anything that’s come up today has created any questions, you can reach me at the email address on this slide, or at the phone number. We’re happy to answer any questions that you may have. Happy holidays. Enjoy it, and have a great day.