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