For many, applying for a business visa for the United States may seem like a daunting task. Though the matter is quite complex at first glance, the staff members working in the Consular Services departments at U.S. Embassies and Consulates around the world are ready and willing to help. In the aftermath of the recent Strategic Investment Summit: USA, we turned to Peter Kaestner, Consular Section Chief at the Consulate General of the United States in Frankfurt am Main, with some of our questions regarding the main business visa categories foreign companies should know about before establishing a subsidiary in the U.S.

 

GSC: For a German company looking to establish itself on American soil for the first time, which type of visa would you recommend for the executives or specialized knowledge employees transferring from the foreign parent office?

 

Peter Kaestner: Although we cannot make specific recommendations regarding the type of nonimmigrant visa (NIV) for which a company’s individual employee may qualify, there are two visa options that are generally available:

 

• The L-1 visa: for intracompany transferees. This NIV classification was created to permit international companies to temporarily transfer qualified employees to the United States for the purpose of improving management effectiveness, expanding U.S. exports, and enhancing competitiveness in markets abroad. The U.S. company will have to file an L-1 petition with U.S. Citizenship and Immigration Services (USCIS) in the United States, providing documentation regarding the qualifying corporate relationship between the two entities, such as a branch, affiliate, subsidiary, parent or joint venture relationship, as well as documentation to establish the employee’s eligibility for an L-1 visa as an executive, manager or specialized knowledge employee.  Once USCIS approves the L-1 petition, the beneficiary may apply for his or her L-1 visa at a U.S. Embassy or Consulate abroad. USCIS requires additional documentation from new offices (an office that has being doing business in the United States for less than one year), and any initial L-1 petition will only be valid for one year. Subsequent L-1 petitions may be extended in two-year increments, for a total of five years of status as an L-1B specialized knowledge employee and seven years for an L-1A manager or executive. Accompanying spouses and children under the age of 21 may apply for L-2 visas. Spouses may also apply for employment authorization with USCIS after entering the United States.

 

• The E-1 or E-2 Visa. This NIV classification was created to enhance or facilitate economic and commercial interaction between the United States and the treaty country, in this case Germany. The E-1 treaty trader visa is possible for the owners and employees of companies engaging in substantial trade principally between the United States and Germany. The E-2 treaty investor visa permits the owners and employees of companies that have made a substantial investment in the United States to operate there. The treaty trader or investor must possess German “nationality,” meaning that the company is more than 50% owned by German nationals. Employees of these companies seeking to travel to the United States on an E-visa must also possess German nationality.  To qualify for E-visa classification, the German company must first register the U.S. company at the U.S. Consulate General in Frankfurt, the sole E-visa processing post in Germany. After the company is registered, eligible individuals may apply for E-1 or E-2 visas to serve as executives, supervisors and employees with essential skills at the U.S. company. E-visas are generally valid for an initial period of five years, and extensions are available. Comprehensive information regarding the application process and required documents for first-time registration is contained at the U.S. Embassy’s website: http://germany.usembassy.gov/visa/niv/visacategories/e1e2/.    Accompanying spouses and children under the age of 21 may apply for E-1 or E-2 visas. Spouses may also apply for employment authorization with USCIS after entering the United States.

 

 

GSC: If an H-1B petition filed with USCIS on behalf of an employee is not approved due to the fact that H1B visas are numerically limited, is it possible for employers to apply for another type of visa after receiving a notice of rejection for a candidate? If so, which type of visa would you recommend?

 

Peter Kaestner: The H-1B visa is a visa for individuals who are coming temporarily to the United States to perform services in a “specialty occupation,” i.e. an occupation requiring the attainment of a Bachelor’s or higher degree in the specific specialty (or its equivalent) for entry into the occupation. In some instances, as long as all of the necessary requirements are met, it may be possible to pursue classification in one of the following categories of visa:

 

• The L-1 visa. If the employee has been employed for a foreign company in the international group of organizations for at least one year in the past three years as a manager, executive or specialized knowledge employee and is traveling to assume a position as a manager, executive or specialized knowledge employee for a qualifying U.S. organization, i.e. a subsidiary, affiliate, parent, branch or joint venture, the U.S. employer may file an L-1 visa petition with USCIS.

 

• The E-1/E-2 visa. If both the company and the employee hold German nationality (or both hold another nationality that qualifies him/her for an E-visa) and the U.S. company has been registered as an E-visa company at the U.S. Consulate General in Frankfurt, an employee that qualifies either as a supervisor, executive, or essential employee may apply for an E-1 or E-2 visa.

 

• The O-1 visa. If the beneficiary is able to demonstrate “extraordinary ability” in the sciences, arts, education, business, or athletics, or extraordinary achievement in motion picture and television production, and who is coming temporarily to the United States to continue work in the area of extraordinary ability, the U.S. employer may file an O-1 visa petition with USCIS on behalf of the employee.

 

 

GSC: What advice can the U.S. Consulate provide to applicants seeking to obtain L-1B visas to assist them in establishing their qualifications?

 

Peter Kaestner: Please make sure that the applicant applying for an L-1B visa at a U.S. Embassy or Consulate is qualified for this visa before advising him/her to apply.

 

The L-1B visa is for individuals who have “specialized knowledge,” meaning special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests, and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. 

 

If an applicant is applying under an approved Blanket L visa petition, the applicant must also qualify as a “specialized knowledge professional,” meaning that he or she has specialized knowledge as defined above and is a member of the professions as specified in INA 101(a)(32). The term “professions” includes, but is not limited to, “architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academies, or seminaries.” Furthermore, petitions to accord L status may be approved for persons with specialized knowledge, but not for persons who are merely skilled workers.

 

Thus, if the employee does not have a four-year university degree, the employer should carefully consider the applicant’s possible qualification for the L-1B visa. Please note that L-1B beneficiaries are not required to establish their professional qualifications when the employer files an individual L-1 petition on his/her behalf with USCIS in the United States. Filing an individual L-1B petition may therefore be the better option for non-professional specialized employees.

 

It is also important to remember that there has to be an “employer-employee” relationship between the petitioning U.S. company and the beneficiary. The key to this concept is the right of control; that is, the right of the employer to order and control the employee in the performance of his or her work. A beneficiary who will be employed in the United States directly by a foreign company and who will not be controlled in any way by (and thus, in fact, not have any employment relationship to) the foreign company’s office in the United States does not qualify as an intra-company transferee. 

 

If the beneficiary is able to meet the necessary qualifications for an L-1B visa under U.S. laws and regulations, it is likely his or her L-1 visa application will be approved.