Now that we have described how to staff a start-up enterprise, let’s look at staffing existing businesses. This chapter discusses:

• Treaty trader or treaty investor E-1 and E-2
• L-l A Manager
• L-IB Specialised Knowledge
• H-IB Professional Visas
• H-2B Seasonal Workers or Labor Unavailable in the US.

CHOOSING THE CORRECT VISA

Each visa category presents advantages and disadvantages. Consuls generally process E visa petitions faster than the USCIS processes H and L visa petitions. L-l A visas work better than other categories in start-up situations. H-IB petitions require LCA disclosures. The LCA disclosure entails additional processing time and may disturb relations with US workers. L-IB visas tend to require detailed explanations of the applicant’s benefit to US competitiveness, while L-l A visas tend to require detailed explanations of the company’s organisation and the applicant’s managerial duties.

The E-l/2 essential skill category requires the US company to train replacements. The H-2B category requires recruitment of US workers. H and L visas have maximum validity periods, while E visas may be extended indefinitely. On the other hand, H-IB, L-1A, L-IB and E visas all permit the applicant to work in the US while allowing dependants to live and attend school in America.

MANAGERS

Most L-l A or E manager petitions are straightforward. Companies hire an endless variety of managers and executives, including administrative managers, human resource managers, accounting managers, production managers, company officers, sales managers, etc. Simply put, managers tell other managers, supervisors and professionals what to do.

Problems arise when the so-called manager is actually a front line supervisor. Front line supervisors do not manage other managers, supervisors or professionals. The USCIS often questions petitions for production managers, sales managers and other positions that are often non-managerial. In such cases be prepared to furnish detailed organisational charts of the position abroad and the proposed position in the US as well as payroll records.

Managers and executives working for an international organisation may qualify for L-l A Manager, E-l/2 Manager, or H-l B Manager serving in a professional capacity. Managers working for a treaty company that isn’t part of an international organisation qualify for E-l/2 or H-1B. If the company isn’t a treaty organisation or an international organisation. H-1B Professional status becomes the only choice. Treaty organisations or international organisations may pay managers from abroad. In such cases the US employer must remit payroll tax and income tax withholding to the IRS for wages earned in the US.

Managers may commute between foreign and American locations. If questioned, the manager must demonstrate that he performs managerial duties while in the US. It’s not how much time the manager spends in the US, it’s what the manager does while there.

Corporate organisation will either expand or limit your choices. Assuming you have all three choices H-1B, L-l A and E-l/2 – consider the following points:

Factors favouring E visas

• In most cases, consuls process visas faster than the USCIS.
• E visa holders receive up to two-year stay periods every time they enter the US. An E visa holder entering the US on the last day of his visa may be admitted for up to two years beyond the visa expiration date. This, however, may change.
• L or H visa holders will only be admitted for a period not longer than their visa validity date. Depending on the circumstances, the E visa may eliminate the need to file an extention petition with the USCIS.
• The E visa may theoretically be extended indefinitely, whereas the H visa is limited to six years unless pending labour certification, and the L-1 A visa is limited to seven years.
• If the company is replacing an E visa holder with a person serving the same position, use the E visa category for the replacement. By granting the E visa the first time the consul has already determined that the position qualifies.

Factors favouring H and L visas

• Consuls usually review the US employer’s staffing history. Consuls generally resist granting E visas for more than one person per position. The USCIS only reviews the case in front of them, and usually doesn’t review the entire company’s staffing structure and visa history. For example, if you think there will be trouble justifying the need for more than one sales manager, use the L-1 A or H-1B categories.
• Consuls tend to question E visa petitions for managers under 30 years of age. In such cases, if the manager also has a professional degree consider H-1B or L-1 A.
• If your company frequently uses E visas and cannot demonstrate a declining ratio of foreign versus American workers, consider H and L visas for new positions.

Determining the correct visa is more of an art than a science. One must consider long-term staffing goals. If your company plans to rotate managers between the US and foreign offices, it’s important to establish precedents with the USCIS and consuls for all possible categories.

If hiring a foreign manager is an infrequent or one-time situation, use the visa category that best suits the applicant’s credentials and long-term goals. For example, if the applicant may ultimately want a green card and the US employer is part of an international organisation, use the E or L-1A categories. As you will see in the next chapter, changing to a green card from an H-1B visa can be difficult.

Unless you ultimately want a green card, there is little practical difference between any of these visa categories. Choose the category that facilitates staffing the US business in the quickest and smoothest way possible. Applicants often qualify for several visa categories, and it is important to match the job requirements and applicant’s skills with the most appropriate category. The closer the match, the faster the processing.

H-1B VISAS

The H-l B visa is the preferable visa category for professionals. Professional positions include most jobs that require a baccalaureate or higher degree as a minimum requirement. These could include accountant, engineer, economist, teacher, scientist, market researcher, sales engineer, psychiatrist, dietician, forester, hotel manager, librarian, journalist, medical doctor, minister, nutritionist, pharmacist, sociologist, lawyer, veterinarian, vocational counsellor, fashion model, technical publications writer and social worker.

The H-IB visa category can offer simplicity. If the job requires a professional and the applicant has the appropriate professional background, the visa will likely be approved. Although US workers must be notified of the impending H-IB petition. There is no requirement to recruit or hire US workers. There is also no requirement that the applicant have experience in the job offered. Recent college graduates often qualify for H-IB status. On the downside, the notification procedure, Labor Conditions Attestation, though relatively simple, requires additional processing time.

H-IB petitions require:

• information about the applicant’s professional abilities
• information about the employer’s need for a professional to fill the offered position
• the applicant’s resume
• their educational credentials.

The size of the employer makes little difference in clearly professional positions, such as engineers and accountants. Small companies often have trouble justifying the need for a professional to fill marketing and administrative positions. For example, a small company has little need for the permanent services of a market researcher. The USCIS might suspect that the ‘market researcher’ who holds an economics or marketing degree is really a salesman.

Small companies generally don’t need professionals such as business administration degree holders to fill administrative positions. Most small business managers learn on the job. A baccalaureate degree is usually not a job requirement for the small company business administrator or manager. Large companies with complex management structures fare better in demonstrating the need for business administration, MBA or other business-related degree holders.

Virtually all H-IB applicants have a university degree. Because the law does not require prior work experience, the USC1S, particularly in the case of young applicants, often questions whether the proposed employment in the US requires the services of a professional. The USCIS may ask for employment advertisements from peer companies that require a university degree for the position, as well as letters from peer companies stating that they believe the position requires a professional education. The USCIS often requests an analysis of the applicant’s university study and experience to demonstrate the applicant has the skills to fill the position.

Applicants without a university degree may also qualify for Hl-B status. As a rule of thumb three years’ work experience equates to one year of university study. Applicants who attended two-year college courses in computer science or related fields and have six years of relevant experience, often successfully qualify for H-1B status. Applicants who failed to finish their liberal arts degree usually make hopeless cases. In any event the USCIS will require a professional credentials evaluator to determine whether the applicant’s education and experience equates to a baccalaureate university course of study.

COMMON APPLICATIONS OF H-1 VISAS

Financial and business professionals

Foreign-owned companies often transfer financial and accounting professionals to oversee cost-containment, the purchase of raw materials or parts, preparation of financial reports for the home office, and general accounting and financial activities. Typically the transferee lacks managerial experience and the job in the US rarely contains a managerial component. The lack of managerial experience eliminates any managerial visa possibilities.

As finance-related skills are widely available in the US and usually don’t aid US competitiveness, L-IB specialised knowledge or E-l/2 essential skill visas are not recommended for these employees. H-1B status for finance and accounting positions is recommended for four reasons:

• The work falls within established professional disciplines.
• The services of a professional are required to understand financial, accounting or procurement systems.
• The applicant generally has an appropriate university degree (finance, economics or business administration).
• There is no requirement to demonstrate a shortage of US workers or that US workers cannot perform the job.

A typical job description for an economist, accountant or financial officer might be as follows:

Prepare financial reports, budgets, analyse operating results as compared to budget projections, coordinate home office and subsidiary accounting methods, monitor cost control, prepare and analyse forecasts for executive management, work with outside professionals regarding tax return preparation and financial reporting.’

ENGINEERS

We recommend H-IB visas for non-managerial engineers or scientists (mechanical, electrical and computer engineers, etc.) because engineering is a recognised profession usually requiring a related university degree.

Sales engineers often pose difficult cases. Is the sales engineer a salesman or an engineer? Sales managers may qualify for L-1A or E visas; salesmen do not qualify for any visa category. The typical sales engineer holds an engineering-related university degree, works on product development and design, and provides technical support to customers. The sales engineer explains the product in layman’s terms.

Companies that manufacture or sell complicated products in the US hire sales engineers to ‘explain the product to the customer, provide technical support to company salesmen, interface with the customer’s engineers and technicians, provide customer technical support, and, after warranty service, work with customers’ engineers and technicians regarding product modification, and install and monitor maintenance programmes’.

This job description describes sales activity. But the sales engineer also requires technical expertise and a theoretical understanding of the product’s mechanics, hence the engineering background. A successful H-1B petition hinges on emphasising the technical aspects of the job. Stress the technical or professional understanding of the product required to make the sale, rather than the salesmanship angle.

Use H-1B when managerial visas are inappropriate and the applicant has a four-year degree relating to a professional discipline. Liberal arts degrees in such areas as literature, business administration, English or other languages are problematic because the degrees only tangentially relate to the job offered.

The H-1B category presents four disadvantages. The duration is limited to six years; it’s difficult to go from H-1 B to green card status because of the labour certification requirement and the employer must go through the LCA procedure, and there is an up to $1,500 charge in addition to the normal filing fee to fund worker training, scholarships and USCIS operations, plus a $500 fraud fee. Therefore, use the H-1B visa category in the following circumstances:

• The corporate organisation makes the H-l B the only choice.
• If there are choices, use the H-1B if the applicant is young and has little experience and a qualifying BA degree.

SPECIALISED KNOWLEDGE AND ESSENTIAL SKILLS

Companies often transfer specialists who work with a particular product, technology or process. Specialists may qualify for four visa categories: E-l/2 Essential Skill, L-1B Specialized Knowledge, H-1B Professional, or H-2B Labor Unavailable in the US.

If the applicant earned a university degree related to his speciality, we recommend H-1B. Such an applicant, for example, would have a Bachelor of Science degree in fisheries for a marine-products specialist, computer science degree for a computer/software specialist, and a forestry degree for a wood products specialist.

It is easier to prove that the university degree relates to the applicant’s speciality than to prove that the applicant’s skills are essential to the US enterprise (E visa), or an aid to US competitiveness (L-1B). An H-1B visa works because the applicant must use professional skills to understand, modify or analyse a complex product, technology or process.

If a specialist lacks a university degree but holds skills unavailable in the US necessary to the company’s success, consider E-1 Essential Skills status. If the specialised skill helps promote US trade or exports, the applicant may qualify for L-1B Specialized Knowledge status. Since both categories face equally intense scrutiny, choose the category that best matches the facts of the case.

L-1B and E-l/2 essential skills refer to the same sorts of skills but with a different emphasis. ‘Essential skills’ refers to skills critical to the US company’s success. In other words, the success of a US business depends upon the applicant’s essential skills. Additionally, the essential skills in question must be unavailable in the US. The US treaty company must usually agree to train people to replace the essential skills applicant.

For example, it’s often impossible to effectively use foreign machinery without the temporary services of a technician who provides training and technical support. American technicians are unfamiliar with the newly introduced machinery, so the US treaty company must agree to train technicians from the US.

Specialised knowledge refers to skills or knowledge of the parent company’s product or processes which must be transferred to the US subsidiary for increasing the subsidiary company’s competitiveness. The emphasis is on helping US competitiveness, not the necessity or scarcity of the skill. Although the US produces many software engineers, the installation of the parent company’s particular software in the US subsidiary may aid the US subsidiary’s competitiveness in international markets.

Who can use L-1B and E Essential Skills visas?

There’s an endless list of appropriate applications for the L-l B and E essential skills visas. In general, use this category for persons with technical skills who lack university degrees. Some points to remember:

• Use another category unless the applicant doesn’t qualify as an international manager or have a professional degree. Professionals and managers may also hold specialised knowledge or essential skills.
• The consuls and the USCIS scrutinise L-1 specialised knowledge cases and E essential skills cases more than managerial or professional cases.
• Use L-1 specialised knowledge when transferring knowledge which helps US competitiveness. The knowledge does not have to be secret or proprietary. On the other hand, if everyone has this knowledge how can it aid US competitiveness? A lot of companies make instant noodles, but not everyone’s instant noodles taste the same. The knowledge that makes Company A’s noodles taste different from its competitor’s is specialised.
• Use E essential skill status when the emphasis is on training US labour to fill a skills shortage. The skill must be unavailable in the US and essential to the success of the business. Essential does not necessarily mean complicated. Marine products technicians hold essential skills due to a US skills shortage, not because of the complexity of processing fish.
• The drawback to the E essential skills category is that you may need to agree to train US workers to eliminate the need for an essential skills employee. Because of the training requirements, it’s difficult to convince consuls to renew E essential skills visas. Although you can claim high turnover, or changes in technology prevented you from training a replacement, there is a limit to the consul’s patience.
• The more esoteric or complicated the skill the easier the case. For example, it’s easier to convince consuls or the USCIS that a nuclear physicist working on a new atom-smasher holds more essential skills or specialised knowledge than a noodle technician. In the case of the nuclear physicist, emphasise the complexity of the skill. In the case of the noodle technician, emphasise the contribution to local employment and the export trade.
• Time limits: Consuls issue E visas for up to five years. E visas may be renewed as long as you can convince the consul to issue the visa. There is no limit on extensions. The law limits L-1B visa validity to a total of five continuous years. After the five-year period the applicant must leave the US for a year before applying again.

The ‘technicians’ option

If the applicant fails to qualify for any other nonimmigrant status, consider the H-2B visa, which applies to skilled or unskilled labour unavailable in the area of intended employment. The key factor here is availability. It does not matter whether you import rocket scientists or ditch diggers as long as the labour is unavailable.

H-2B workers must work seasonally or fill a one-time need. Trainers coming to the US to teach American workers a procedure, such as a chef showing American cooks a new cuisine, fill a one-time need. Theoretically, the trainee takes over the position. This does not apply to child monitors or amahs, who fill a nonrecurring position. The child eventually grows up.

The employer must advertise the position, interview the job applicants, and convince the Department of Labor that none of the job applicants meets the minimum job requirements. The Department of Labor establishes minimum job requirements and acceptable salaries, and determines which job applicants to interview. If you succeed with the Department of Labor the job will be certified as available to foreign workers. Then you must petition the USCIS for visa approval.

The entire process takes between 90 and 120 days, and the H-2B visa lasts for one year. To extend the visa the entire process must be repeated.