| As the counter-terrorism efforts
of the US become increasingly more intensive, visitors
from the UK are experiencing problems at entry at a
level higher than ever before.
Interestingly, the problems arising at US airports are
generally not security related, but relate to legal
compliance issues such as prior over-stays, or having
the "wrong” visa.
At our law firm, we have recently encountered numerous
instances of UK business visitors seeking entry under
the Visa Waiver Program (which permits 90-day admission
without a visa) being turned away and sent back on the
same plane, because the database reflects a brief over-stay
several years ago. Similarly, many UK visitors, with
or without visas, have been denied entry because the
US Immigration Inspectors believed they were entering
“too frequently”, or that their US business
activities were actually domestic “employment”
or “self employment”. In short, legitimate
security concerns have created an aura of suspicion
and zero-tolerance regarding all US airport screening.
We normally advise our clients that arguing with airport
inspectors is counterproductive, and often serves only
to inflame an already bad situation. In fact, the only
effective antidote to the poison of zero tolerance is
for travellers to be forewarned and prepared with the
appropriate documentation or visa.
In a corporate or business setting, UK nationals have
many advantages, including favourable treaty provisions,
a long history of commercial alliances with the US,
and a “common language”.
However, the US Immigration laws have become so complex
and Byzantine, and are enforced so unevenly that legitimate
entrants are often and unnecessarily subjected to inconvenience
and outright abuse. What must be kept in mind is that
visitor entries are permissible only for limited purposes
and limited time-frames. The entrant for business or
pleasure must have an unrelinquished domicile outside
of the US, and any commercial activity in the US must
be for the benefit of a foreign commercial entity in
the UK, or elsewhere, which is seeking to profit thereby.
Working for a US company, even for short periods and
even with payroll remaining in the UK, is not regarded
as acceptable by the Bureau of Customs and Border Protection
of the Department (BCBP) of Homeland Security, which
took over border and airport inspections from the now
defunct INS.
In close cases, we normally advise corporate and business
clients to err on the side of caution and compliance
so as to avoid the risk of gross inconvenience and monetary
loss, which occur when one runs afoul of the US Immigration
authorities. Just like the proverbial elephant, the
BCBP computer never forgets.
To avoid problems, particularly useful long-term working
visas for UK nationals include the:
- E-1: Treaty Trader
- E-2: Treaty Investor
- L-1: Intra Organisation Transfer
- H-1(B): Professional Worker
- O-1: Extraordinary Ability Entrant
- P-1, P-2, P-3: Entertainment
Groups
- H-3: Trainee
- J-1: Exchange Visitor
- H-2: Temporary or Seasonal Worker
- R-1: Religious Worker.
All of these categories are employer-specific and normally
require that a documented petition be pre-filed in the
US, and that a detailed application for a visa be submitted
to the US Embassy in London. However, there are usually
legitimate ways to add flexibility to the equation,
especially in cases of self-employed investors.
In recent years, we have seen an increase in UK businesses
developing a US presence, and seeking to transfer personnel
to the US. The US enterprise may be a branch, subsidiary
or affiliate of a UK company, or majority owned by a
UK national, resident in the UK. The most common transfer
vehicles are the L and E visa categories. The L category
permits the transfer of UK personnel to the US entity
in executive, managerial or specialised knowledge positions.
To qualify, there must be at least 50% cross ownership
between the UK and US entities, and the transferee(s)
must have been employed abroad for at least one year
within the last three years. The duration of US stay
can be for up to five years in the case of specialised
knowledge employees, and up to seven years for executives
and managers.
The E category, meanwhile, is divided into two parts:
E-1 and E-2. The E-1 visa is for UK nationals wishing
to fill key positions in a US company that is at least
50% UK-owned, and is engaged in substantial international
trade between the US and the UK. The E-2 visa is for
UK nationals coming to manage direct, or be employed
in, a 50% UK-owned US company in which UK citizens or
companies have made a substantial investment.
The E visa is regarded as one of the most useful and
flexible as it can be renewed indefinitely, there is
no need for a related UK company to exist, and an E
visa can even be issued to an individual entrepreneur
or trader who has established an appropriate US business
entity.
The trade necessary for E-1 visa approval need not be
in goods or merchandise, but can take the form of services
such as advertising, architecture, graphic art, or transfer
of computer technology. Similarly, the amount of investment
considered “substantial” is evaluated under
a doctrine of “proportionality”, for example,
you need much more capital to establish a steel mill
than you do to start a dress shop.
Often, in structuring personnel transfers for qualifying
enterprises, we recommend an assortment of visas and
categories, depending on the needs of the enterprise,
the qualifications of the transferees and the time constraints
of the business. What is most surprising is that the
seemingly inflexible “alphabet soup” of
visa categories can often be made quite flexible in
order to accommodate very real and legitimate business
needs.
It is of significance that all of the categories mentioned
are non-immigrant categories and do not involve obtaining
immigrant status, also known as permanent residence
or “green card”. However, they can be obtained
relatively quickly, and often pave the way for obtaining
full immigrant status at a later time.
The determination of when and whether to seek US permanent
residence (the US equivalent of UK landed immigrant
status) is based on company and individual needs, as
well as, in many cases, substantial tax considerations.
In short, the name of the game for those wishing to
live, work and do business in the US is strategic compliance,
which, with fore-planning and knowledge of the law,
is quite attainable.
Philip J Kleiner and Martin
L Rothstein
are partners in the New York City-based
law firm of Barst & Mukamal
LLP.
2 Park Avenue – 19th Floor
New York, New York 10016
Tel:
+1 212 686 3838
Fax:
+1 212 481 9362
Website:
www.barstmukamal.com
E-mail:
pkleiner@barstmukamal.com
mrothstein@barstmukamal.com
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