What are the main work and business permit categories used by companies to transfer skilled staff?
The categories most commonly used by companies to transfer skilled staff are outlined below.
L-1A and L-1B classification for intra-company transferees
The L-1A classification allows international companies (with offices in the United States and abroad) to transfer senior managers and executives to the United States. The L-1B classification applies to transferees who will fill a specialised knowledge position in the United States. To be eligible, the foreign employee must have worked abroad with a qualifying business in a senior managerial, executive or specialised knowledge position for at least one continuous year within three years preceding their entry to the United States to work in a senior managerial, executive or specialised knowledge role. The role to be filled in the United States need not be the same as that which was performed abroad.
The L-1 category allows immigrant intent, meaning that an L-1 worker may enter the United States with the intention of remaining in the country permanently.
While limited exceptions exist, the maximum time that may be spent in the United States in L-1A status is normally capped at seven years, whereas admission to the United States in L-1B status is typically restricted to five years.H-1B category for speciality occupation workers
US employers may temporarily hire qualified foreign employees to work in a speciality occupation, which is defined as an occupation requiring at least a four-year US bachelor’s degree, or equivalent, for entry. The H-1B visa is subject to an annual limitation. Specifically, 65,000 H-1B visas are allocated each year, of which 6,800 are reserved for citizens of Chile and Singapore. There is a separate quota of 20,000 visas for speciality occupation workers who hold a US master’s degree, or higher.
The H-1B category allows immigrant intent and, with certain exceptions, may only be held for a maximum of six years.
Trade national classification for Canadian and Mexican nationals in certain professions
The trade national (TN) classification allows citizens of Canada and Mexico to engage in pre-arranged business activities in the United States. Sixty-three professions qualify for TN classification, including, but not limited to:
- computer systems analysts;
- graphic designers;
- scientific technicians and technologists; and
- urban planners.
The TN category does not permit immigrant intent and may be extended indefinitely.
E-3 classification for Australian speciality occupation workers
E-3 classification is available to Australian professionals seeking to enter the United States to work in a speciality occupation. Applicants must have a four-year bachelor’s degree or equivalent.
The number of E-3 visas issued each year is limited to 10,500.
The E-3 visa classification does not allow immigrant intent and may be extended indefinitely.
E-1 classification for treaty traders and E-2 classification for treaty investors
The E-1 classification allows a national of a treaty country to be admitted to the United States solely to engage in international trade on his or her behalf. Certain employees of such a person or a qualifying organisation may also be eligible for this classification.
The E-2 non-immigrant classification allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a US business. Certain employees of such a person or a qualifying organisation may also be eligible for this classification.
The E-1 and E-2 classifications do not permit immigrant intent and may be renewed indefinitely.
O-1 classification for aliens of extraordinary ability or achievement
The O-1 category is for individuals who possess extraordinary ability in the sciences, arts, education, business or athletics, or have a demonstrated record of extraordinary achievement in the film or television industry and have been recognised nationally or internationally for their achievement.
The O-1 classification is not statutorily recognised as permitting immigrant intent, and it may be extended indefinitely, so long as the criteria for extension are satisfied.Procedures
What are the procedures for obtaining these permissions? At what stage can work begin?
A foreign national may begin their employment duties after entering the United States in a work-authorised status. For most individuals, an employment-based visa must be secured at a US consulate or embassy before seeking entry to the United States to begin employment.
Employers wishing to hire individuals who are already in the United States and require sponsorship may file a petition with the US Citizenship and Immigration Services (USCIS) to secure work authorisation for an employee. In most cases, employment cannot commence until the USCIS has approved the petition. Employers requiring an employee’s services urgently may file a petition for premium processing. This service does not, however, apply to all categories. The fee for premium processing has recently increased to USD$2,500. The USCIS is required to act on a petition filed for premium processing within 15 calendar days from the date of receipt.
Some types of applications for US work authorisation do not involve a US consulate, embassy or USCIS (eg, Canadian nationals may apply for designation as a TN professional or L-1 intra-company transferee at a US port of entry).Period of stay
What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?
There is a distinction between the validity period of a visa and the period of stay granted by Customs and Border Protection (CBP) at the point of entry. More specifically, the validity period of a visa will vary depending on the Department of State (DOS) reciprocity table. The period of stay granted to the holder of a visa is guided by its classification and remains subject to the discretion of the CBP officer.
Generally, the L-1, H-1B, TN and O-1 categories allow for an initial admission period of three years. Extensions under L-1 status are usually granted in increments of two years at a time. In addition, E-3 visas are issued with an initial validity period of two years. The E-1 and E-2 visas may be granted with a validity period of up to five years subject to the DOS reciprocity table. However, periods of stay granted under E-1 or E-2 status are generally limited to two years at a time.
Extensions are permitted for most visa categories. The number of extensions permitted and the total amount of time for which a person may remain in the United States in a specific status will vary depending on the classification in question and the availability of certain exceptions.Processing time
How long does it typically take to process the main categories?
The length of time required to adjudicate a US immigration petition varies considerably depending on the specific category, application procedure and current government processing time.
Canadian citizens seeking status as a TN or intra-company transferee may apply at a US port of entry, which typically results in instant adjudication.
The USCIS typically takes several months to process most petitions, although certain types of petitions may be adjudicated under premium processing for an additional fee of USD$2,500. The USCIS guarantees that action will be taken on a petition filed under premium processing within 15 calendar days of receipt.
Individuals requiring a visa to enter the United States must apply for a visa stamp at a US consulate or embassy. Waiting times vary by consulate and embassy. During busy periods, it may take several weeks to secure a visa appointment. Emergency appointments are available and subject to the discretion of the authorities. Following the appointment, the US consulate or embassy usually takes between five and 10 business days to return the foreign national’s passport containing the newly issued visa.
Some visa applications require administrative processing, which involves the completion of additional checks before approval. Administrative processing is usually completed within 60 days of a visa interview, although in rare instances it may take several months.Staff benefits
Is it necessary to obtain any benefits or facilities for staff to secure a work permit?
Generally speaking, US employers are not required to provide housing or any relocation assistance to foreign workers, but they must offer benefits on the same basis as those provided to US workers (eg, health insurance, paid annual leave and holidays).Assessment criteria
Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?
USCIS, CBP and DOS officers are required to follow objective criteria when adjudicating applications for immigration benefits, but they have authority to exercise discretion as appropriate. Manuals are provided to officers to help ensure consistency in case of adjudication.
Importantly, certain immigration categories must involve subjective determinations because the criteria themselves are not objective. For instance, the ‘specialised knowledge’ criterion is subjective and approval in the L-1B category will hinge on the adjudicator’s inherent determination that the worker meets the threshold.High net worth individuals and investors
Is there a special route for high net worth individuals or investors?
The EB-5 Immigrant Investor Visa Program and E-2 Treaty Investor Visa are aimed at encouraging economic growth and foreign investment into the United States. These two categories are most appropriate for high net worth individuals or investors.
EB-5 Immigrant Investor Program
The EB-5 Immigrant Investor Visa Program allows certain foreign investors to become permanent residents. To qualify, applicants who apply for EB-5 must invest at least US$1.8 million to finance a US business employing at least 10 qualifying employees on a full-time basis. Qualifying workers include US citizens, lawful permanent residents or other immigrants authorised to work in the United States, including conditional residents, temporary residents, asylees, refugees and persons residing in the United States under suspension of deportation. Immigrant investors, their spouses, sons or daughters are not qualifying employees in the EB-5 context.
A minimum investment of US$900,000 will suffice if it is made in a rural area or area of high unemployment. Applicants may invest individually or through a third-party intermediary known as a ‘regional centre’.
Immigrant investors must establish that they are the legal owner of the capital invested.
E-2 treaty investor
The E-2 non-immigrant visa category allows a citizen of a country with which the United States maintains a treaty of commerce and navigation to enter the United States to develop and direct the operations of an enterprise in which the individual has invested or is in the process of investing. The investment must be substantial, which is interpreted to mean that it is sufficient to ensure the successful operation of the enterprise. Moreover, speculative, passive or idle investments do not qualify. The foreign national must also have control over the funds and the investor must be subject to loss if the enterprise fails.
Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?
There is no fast track to US citizenship. However, the EB-5 category is considered an expeditious option for securing US permanent resident status. To qualify, an individual must invest at least US$1.8 million to finance a US business employing at least 10 qualifying employees on a full-time basis. Qualifying workers include US citizens, lawful permanent residents or other immigrants authorised to work in the United States, including conditional residents, temporary residents, asylees, refugees and persons residing in the country under suspension of deportation. Immigrant investors, their spouses, sons or daughters are not qualifying employees in the EB-5 context.
A minimum investment of US$900,000 will suffice if it is made in a rural area or area of high unemployment. Applicants may invest individually, or through a third-party intermediary known as a ‘regional centre’. Immigrant investors must establish that they are the legal owner of the capital invested.Highly skilled individuals
Is there a special route for highly skilled individuals?
Individuals with extraordinary ability, outstanding professors or researchers and foreign nationals whose presence in the United States is deemed to be in the national interest may apply for US permanent resident status without first having to go through the labour certification process. In some cases, premium processing may be available to further expedite the process of securing US permanent resident status.Ancestry and descent
Is there a special route for foreign nationals based on ancestry or descent?
Under the Jay Treaty and corresponding legislation, certain indigenous people born in Canada are entitled to enter the United States to live or work (or both) without restriction. To qualify, an individual must demonstrate that they have at least 50 per cent indigenous ancestry by showing supporting documentation, such as a status card from the Ministry of Indigenous Services.
Also, an individual born outside the United States may qualify for US citizenship through birth if at least one parent was a US citizen at that time. Foreign-born children adopted by a US citizen parent may also acquire US citizenship.
A child may become a US citizen through the process of derivation if at least one parent becomes a US citizen via naturalisation. However, at the time the parent becomes naturalised, the child must be under 18 years of age, a permanent resident and live with the naturalised parent.Minimum salary
Is there a minimum salary requirement for the main categories for company transfers?
Employers employing a worker in H-1B or E-3 status must pay the higher of the actual wage or the prevailing wage for the occupational classification in the area of intended employment. The prevailing wage is determined by the Department of Labor (DOL). The actual wage is the salary paid to employees in the same or similar role as the one held by the foreign worker.Resident labour market test
Is there a quota system or resident labour market test?
Some visa categories, including the H-1B, H-1B1 and E-3 categories, are subject to annual limitations but do not require a labour market test. There is no quota associated with the L, TN, E-1, E-2 and O categories.
Employers seeking to hire temporary workers in the H-1B, H-1B1 and E-3 programmes must file a Labor Condition Application with the DOL and provide advance notice to their employees about the sponsorship of a foreign worker. Likewise, in the permanent residency context, US employers generally need to go through the Program Electronic Review Management labour certification process. This process involves testing the labour market in the intended area of employment. More specifically, the sponsoring employer must post several external advertisements for the position and an internal notice for at least 30 days. Following the active recruitment period, the employer must continue to receive applications for another 30 days. The employer is responsible for screening all applicants against the minimum requirements for the position and identifying if any qualified, willing, able and available US worker candidates exist. It is not possible to obtain labour certification if a qualified, willing, able and available US worker is identified for the job opportunity in question.Shortage occupations
Is there a special route for shortage occupations?
Schedule A is a list of occupations, set forth at 20 CFR 656.15, for which the DOL has determined that there are not sufficient US workers who are able, willing, qualified and available. Employers seeking to permanently employ non-US workers in occupations listed on Schedule A may utilise a highly streamlined process. To date, the occupations listed on Schedule A include:
- physical therapists;
- professional nurses;
- scientists with exceptional ability;
- artists of exceptional ability; and
- performing artists of exceptional ability.
Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?
Yes, the eligibility requirements depend on the visa category. For instance, the L-1 category requires that the beneficiary has been continuously employed by a qualifying entity outside the United States in a managerial, executive or specialised knowledge role for at least one year within the three years preceding the application for L-1 status.Third-party contractors
What is the process for third-party contractors to obtain work permission?
Under US immigration law, third-party contractors are not typically authorised to obtain work authorisation on behalf of an employer. Petitions filed for aliens with extraordinary ability or achievement in the O-1 category may, however, be filed by an agent as opposed to an employer.
In limited circumstances, an employer may deploy a work-authorised foreign employee to a third-party client site to fulfil a contract; however, a valid employer-employee relationship must be maintained at all times. In other words, only the employer should control when, where and how the worker carries out the job duties. Also, an employer wishing to deploy a foreign employee to a third-party site must generally disclose this to the immigration authorities in advance of deployment.
Also, a foreign employer may send a third-party contractor to the United States to perform after-sales services for a buyer under an international sales agreement. In this case, the buyer would not have control over the contractor’s work and no remuneration would be provided from any US source. The ability for the foreign seller to send third-party contractors to perform these after-sales services should be explicitly indicated within the international sales agreement.Recognition of foreign qualifications
Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?
The H-1B and E-3 visa categories require an expert evaluation of any degrees not obtained in the United States. An equivalency assessment may also be required for certain TN professionals who do not hold a degree from a US, Canadian, or Mexican educational institution.
If a beneficiary does not have a four-year US bachelor’s degree or foreign equivalent, or the individual has a degree that is not in a relevant field, then it may also be necessary to obtain an evaluation of the individual’s professional experience.
Equivalency evaluations may also be required for other foreign credentials if the US-based position to be filled requires professional membership or licensure.