Business Law Advisor

[#1]

Many small businesses chose to operate with foreign partners, investors, or workers in some capacity.  Before you start booking plane tickets there are travel and immigration laws that you must consider. Any non-U.S. citizen or resident who wishes to legally participate in business related activities in the United States will require a visa - a document attached to a passport that gives permission to apply to enter the United States. The type of visa will depend on the visitor's intended purpose in the U.S. and whether or not their travel is temporary or permanent. 

Temporary Business Travels

For business related travel to the United States on a temporary basis, foreigners must obtain a nonimmigrant visa.  While there are many different types of nonimmigrant visas, most fall into one of two categories:

Business Visitor Visa (B-1) - This visa is required to visit the United States for specific business related purposes where the visitor will not be compensated by a U.S. based company or entity.  Traveling for a consultation with U.S.-based business entities, for a business conference, or for business investment purposes are all examples of travel that would require a B-1 visa. 

To obtain this type of visa, visitors must schedule a visa interview appointment and apply through the U.S. embassy or consulate in their home country.

For more information, check out the Department of State's frequently asked questions on Visitor Visas for Business.

Temporary Worker Visa (H, L, O, P, Q, ect.) - This visa is required for temporary work or employment in the United States for foreigners that will receive payment, income, or salary from a U.S.-based company or business entity.  The type of temporary worker visa required will depend on that person's specific business purpose. Temporary worker visas are common in specialty occupations and fields requiring highly specialized knowledge.

To obtain this type of visa, the U.S. based business or employer must file a petition (Form I-129) and supplemental documentation with United States Customs and Immigrations Services.

For more information applying for this type of visa, check out the USCIS guide to Temporary Workers.

Permanent U.S.-Based Business Operations

For permanent business employment or operations in the United States, foreigners must obtain an immigrant visa. 

Employment Based Visa (EB-1 through EB-5) - This visa is required for foreigners that intend to permanently work, be employed, and/or be paid by a U.S. based company.  This visa applies to any foreigner, in a skilled or unskilled position, that will maintain any permanent status in the United States.  Employment based visas are classified from 1 to 5 based on their preference level.

• First Preference (EB-1) - Priority workers with extraordinary abilities
• Second Preference (EB-2) - Workers with advanced degrees or exceptional abilities
• Third Preference (EB-3) - Professionals, skilled workers, and other workers
• Fourth Preference (EB-4) - Special workers such as religious occupations
• Fifth Preference (EB-5) - Employment creators that intend to engage in new commercial enterprises

To obtain this type of visa, the U.S.-based entity and the foreign applicant must complete the process to become an immigrant through employment.  In some cases, the process begins through the approval or a labor certification request from the Department of Labor, and once approved, the U.S. based entity must file a Immigrant Petition (Form I-140) with USCIS under the appropriate preference category.  The immigrant applicant will then receive a immigrant visa number. 

If the immigrant applicant is currently residing in the United States they must then apply to adjust their status to permanent residency.  If they are outside the U.S at the time, they will be informed of their approval and must complete the process at their U.S. embassy or consulate.

For more information on applying for immigrant status through employment, check out USCIS guide to Permanent Workers and How Do I Apply for Immigrant Status Based On Employment.

After the Visa...

Once a foreigner has been approved for and received the appropriate business related visa, they are subject to U.S. immigration and employee eligibility laws.  Employers must pay attention to these compliance requirements after a foreign partner or employee has been approved. 

For more information, check out Business.gov's guide on Foreign Workers.

Additional Resources

• Business Visa Center
• Starting a Business in the U.S. as a Foreign National
• Hiring Foreign Workers? Welcome to America

• Foreign Businesses Doing Business in the United States
• Visa Waiver Program

[#2]

I have been looking for this information for a while. Thank you for supplying it in a coherent and structured fashion.  If the article could include time frames that would greatly assist.

Van

Message Edited by NicoleD on 01-06-2010 12:32 PM

[#3]

Van, the State Department advises that as a general planning guideline, if a visa is needed, a foreign traveler should apply for his or her visa as soon as possible, and no later than 60 days before the travel date.  for more information, see the Business Visa Center.