Business Visas for the United States: H-1B, L-1A, E-1 & E-2
(Disponible aussi en françaises: typologie des visas américains habituellement sollicités par les sociétés françaises)
Prepared by:
Member of the Bars of New York State and Paris (France)
4 rue de Marignan,75008 Paris
Telephone: (33) 1 47 23 41 51 / Fax: (33) 1 47 23 37 93
E-Mail: j-polier@paris-law.com / web site:www.paris-law.com
French companies deciding to send an executive (often a bilingual commercial executive) to the United States are frequently faced with the requirement that the executive obtain a visa to work in the United States. In addition, the executive may wish to be accompanied by his/her spouse and unmarried children.
Depending on the factual situation, initially the French company and its legal counsel for visa matters must make a judicious choice of the type of visa to be requested: H-1B, E-1, E-2, L-1, etc. Once the choice is made, a carefully prepared application with supporting documents and facts needs to be prepared. Inattention to both the written and unwritten rules of the Immigration and Naturalization Service (the administrative body responsible for granting or rejecting visa applications) generally results in a costly and unfortunate rejection.
Principal Categories of Visas
The visa types usually used to send a French (or Economic Union) executive to the United States are called:
-
L-1 Visa
-
H-1B Visa
-
E-1
-
E-2
L-1 Visa
The L-1 Visa is designed for intracompany transferees of managerial, executive, or specialized knowledge from multinational companies doing business both in the United States and abroad. This visa is a very valuable tool for foreign businesses because it allows employees to be transferred between parent and subsidiary organizations, from subsidiary to parent companies, between different joint ventures, between sibling organizations and to new offices. To qualify, the foreign organization and the U.S. employing entity must be under common ownership and control.
L-1 visa requirements include:
-
The intracompany transferee must be performing in an executive, managerial, or specialized knowledge capacity.
-
The intracompany transferee must have been employed abroad for at least one year over the last three years with the same international organization in a position that was managerial, executive, or involved specialized knowledge and that the executive’s prior education, training, and employment qualifies the executive to perform the prospective job in the United States.
There is a fair amount of overlap between the H, L and E visa categories, which are the most frequently used for international business personnel.
H-1B Visa
The H-1B Visa is for members of the professions, known as “specialty occupations”. These individuals must generally have a minimum of a Bachelor’s Degree or equivalent education and experience.
N.B.: The Immigration Act of 1990 created a binding annual limit on the total number of H-1B visas that may be issued during the fiscal year (Oct. 1 – Sept. 30). Congress is now considering increasing the annual cap. As this quota is exhausted in less than 12 months, it may be important to prepare the filing a number of months prior to the date on which the executive is scheduled to move to the United States.
If the corporate applicant for the H-1B visa was just established, the probability of obtaining the 3 year visa (instead of a 1 year visa requiring a renewal application and proof of significant activities during the first year) will be significantly increased if the applicant American company has in its American bank account a sizable time deposit.
Set forth below is a discussion of underlining fact patters and the documents that invariable need to be gathered, if the visa application is to be presented in the best light possible.
Preparing the L-1, H-1B or E visa application
Many of the visa files handled by this firm lend themselves to the election to file for a L-1 or H-1B visa. In trying to understand the administrative and paperwork hurdles, the following two categories are important:
-
Category 1 - French companies not yet having an American affiliate or subsidiary.
-
Category 2 - Future American employer is already incorporated in the United States.
Set forth below is a “check list” of the normal steps required to obtain the necessary visa. The process is well understood and the goal can normally be completed within a reasonable time.
Category 1 – No pre-existing subsidiary in the United States
Checklist of principal initial steps:
1-Importance of the French company outside the United States, documents needed to prepare a visa application:
-
business brochures (preferably in English but translation will be accepted by the American authorities)
-
a simplified, summary business plan for the new American subsidiary (or three years of Federal tax returns, if the subsidiary is already in operations in the United States)
-
gross and net sales last three years of the Parent or Group (les comptes)
-
organization chart of the French-based group of companies setting forth:
-
principal business area of activity
-
% of equity owned by parent company
-
country(ies) of incorporation
-
gross and net sales of the group
-
number of employees of the group worldwide
-
-
2-Profile of the executive to be sent to the United States, unless executive has a green card or U.S. nationality:
-
CV
-
passport
-
education (copy of diplomas)
-
salary and "collective industry convention of the French employer (fiche de paie et convention collective)
-
existing employment contract
-
name of French collective convention
-
marital status and age of children, if they will be moving also
-
-
3-Select American agent for service of process and organize paper flow relating to:
-
- service of process (assignations)
-
- tax reporting
-
- annual reports to state of incorporation
-
-
4-Create a U.S. subsidiary to file the visa application. Obtain “Good Standing Certificate” from Secretary of State of the state of incorporation.
-
5-Hold initial Board of Directors meeting to:
-
- elect officers: President, Vice President, Secretary, and Treasurer
-
- approve banking resolutions of future local bank
-
- approve designation of agent for service of process
-
- approve issue of stock to parent company
-
-
6-Establish a U.S. postal address and telephone number. Possible involving a temporary office lease (minimal cost)
-
7-Subsidiary applies for and obtains a U.S. tax identification number
-
8-Open local American bank account funded by wire transfer
-
9-Subsidiary files application for visa for executive(s)
-
10-Identify Franco-American accountant for tax reporting, financial reporting and payroll
-
11A-Employment related contracts relating to French (or other EU) executives:
-
American employment contract between subsidiary and executive(s).
-
Contract relating to eventual reintegration between current employer and the executive, or
-
-
11B-Expatriation Agreements: (a less preferable solution)
-
Contract of Expatriation and
-
Contract of Reintigration
-
*Non-compete provisions must be reviewed and possibly adapted for enforcement in the United States.
Often the new United States subsidiary will act as the agent or distributor of the French parent company. If either such a relationship is to be envisioned, an appropriate agency or distribution agreement in English should be envisioned for United States tax reasons and/or tariff reasons.
Category 2 – Pre-existing subsidiary in the United States
Checklist of principal initial steps:
-
A - Same as Point No. 1, except that gross and net sales last three years of the American subsidiary will also be needed along with Federal tax returns. (Dossier will require the name and title of the officer of the American subsidiary who will sign the application and the address and "EIN" (Employer Identification Number) number of that American company.)
-
B - same as Point No. 2 above.
-
C - Simplified version of Point No. 3, as there will only be a due diligence review of existing paper flow instructions and possible updating.
-
D - Points 4 & 6 can be skipped, as the American subsidiary already exists.
-
E - In lieu of point 5, due diligence review minutes electing current list of officers of the American subsidiary. If appropriate, cause the Board of Directors to named the new executive as an office (e.g., Vice President) of the American subsidiary.
-
F - Same as Point No. 9.
-
G - If appropriate, revise bank resolutions (see point 8) to authorize new executive to use the existing bank account.
-
H - Point 10 can be skipped, as the American subsidiary presumably already has an accountant.
-
I - Same as Point Nos. 11-A and 11-B.
Other Visas
There are a number of other visa categories. For example, E-1 and E-2 Visas may be available for French companies engaged in substantial trade with the United States or there is a substantial direct investment into a United States company or business. Also, there are derivitive visas for spouses and unmarried children.
Spousal Work Authorization
On January 16th 2002 the President of the USA, George W. Bush, signed into law two bills that allow accompanying spouses of L and E visa holders in the United States to obtain work authorization. See:
See http://www.permitsfoundation.com/news.htm
|
DISCLAIMER The information provided here and on the other pages linked hereto is intended for educational purposes only, and is not legal advice. Particular situations require particular analyses that can only be provided by legal professionals who specialize in the relevant fields and who know all the details of a situation. Also, a presentation such as this does not establish the attorney-client relationship that is necessary in any rendering of legal advice. Finally, one should be aware that the law is a chameleon-like beast that changes its colors frequently, and what holds good today may be reversed by tomorrow. The comments herein should then be read in that light. |
|
|