Setting up a Business in the US: Types of US Work Visas
If you’re in the process of setting up a business in the US from the UK or another country, it is widespread practice to incubate your dream team from your home location first before physically relocating them. This helps you replicate your company culture and business practices in the US via trusted employees.
When the time comes, you may ask, ‘What visa do I need when setting up a business in the US?’, ‘How do I relocate my employee to the US?’
To ease the pain, we’re going to provide a summary of the different types of US work visas that companies typically use when employing foreign workers in America. Full requirements for each visa can be found under the infographic.
Types of US Work Visas for Temporary Business Visits
Before we jump in to the different types of US work visas, we’re going to explain how you can visit the US for temporary business before committing to visa paperwork, if you’re from an eligible country.
If you’re in the initial stages of setting up a business in the US, it is often advisable to visit the US first to scope out potential office locations and gauge interest for a demand in your product or service. To do this or any sort of business in the US during a temporary visit, you must secure a US visa for short term business purposes.
There are several types of visas for temporary visits for business, depending on what activities you or your employees are undertaking when in the country.
The US Visa Waiver Program for Business
Nationals of 40 participating countries can travel to the US for tourism or business for 90 days or less without obtaining a visa, under the Visa Waiver Program (VWP).
You need a valid ESTA if travelling to the US under the VWP
To travel to the US for business without a visa on the VWP, you need to obtain authorized entry via the Electronic System for Travel Authorization (ESTA) prior to travelling. It is important to note that:
An approved ESTA does not guarantee entry into the United States.
You must request permission to travel to the US from Customs and Border Protection (CBP) officials at the port-of-entry.
CBP officials can permit or deny admission to the US at the port-of-entry.
What are the requirements to travel under the Visa Waiver Program for business?
When travelling to the US under the visa waiver program, you must not be paid by any source in the US. The only exception being expenses related to your stay.
You are a citizen of a country eligible for the VWP.
You are staying in the US for 90 days or less.
You are travelling for business purposes allowed under the VWP.
The following business activities are permitted while in the United States on the VWP.
Attending short-term training.
Consulting with business associates.
Negotiating contracts.
Attending professional or educational conferences or conventions.
You can find out more information about the Visa Waiver Program, including the eligible countries, on the Department of State Website.
How long is a US ESTA valid for?
An ESTA is valid for two years, or until your passport expires. You can use it for multiple trips for 90 days.
Once you or your employee has visited the US under the visa waiver program and are happy to commit to setting up a business in the US, it is time to start looking at types of temporary US worker visas.
Ready to Transfer Employees to the US?
Research the Different Types of US Worker Visas and Start the Application Process
If you have plans to transfer employees to the US to temporarily help when setting up a business in the US, temporary nonimmigrant employment visas are for you. As an employer, once you know which type of US worker visa you need, you will have to file a petition with the US Citizenship and Immigration Services (USCIS).
The employee you wish to transfer to the US will then be required to submit their visa application. To help you out, we’re going to run through the most common non-immigrant types of US work visas.
The E-2 Visa
Invest a substantial amount when setting up a US business to secure the E-2 visa
The E-2 visa is for nonimmigrants of a US treaty country that can be admitted to the US when investing a substantial amount of capital to a US based business. This is one of the most common types of US work visas we see our clients apply for when doing business in the US from the UK. They typically transfer UK employees to the US using the E-2 visa.
Company requirements for the E-2 visa
You must be a treaty investor to qualify for the E-2 visa and possess the following requirements:
Be a national of a country that the US maintains a treaty of commerce with.
Be in the process of investing a substantial amount of capital in the US business, or already have invested.
Have intentions to enter the US solely to develop and direct the US based business. This is established by proving at least 50% ownership of the enterprise or possession of operational control through a managerial position.
Requirements to transfer employees under the E-2 visa
Our clients doing business in the US from the UK, typically transfer UK employees to the US under the E-2 visa.
To qualify for an E-2 visa, the employee of the treaty investor must:
Have the same nationality as the treaty employer
Meet the definition of employee
Have supervisory or executive duties
Hold special qualifications essential to business operations, including a degree of proven expertise.
How long can you stay in the US under an E-2 Visa?
Treaty investors and qualified employees under the E-2 visa can stay in the US for an initial two years. Extension requests can be granted in increments of up to two years, with no limits on the number of extensions. However, all E-2 nonimmigrants must maintain an intention to depart the US once their status expires.
L1 Visas
Company transfer visas USA
The L visas are types of US work visas for temporary intracompany transfers of foreign employees to a US office. The L visas enable a company to transfer senior employees from their home office to help when setting up a business in the US.
There are two types of L-1 visas:
The L-1A Visa
Intracompany Transferee Executive or Manager
The L-1A visa enables a US employer to transfer managers or executives from a foreign office to their US office. This is one of the most used visas for those setting up a business in the US from the UK. If you have not yet established a US office, you can transfer a trusted UK employee to the US on this visa to establish an office.
Requirements for the L-1A Visa
To transfer an employee to the US via the L-1A visa, the employer is responsible for filing a Form I-129, Petition for a Nonimmigrant Worker, with fees, on the employee’s behalf.
To qualify for the L-1A visa, the employer must:
Have a qualifying relationship with a foreign company (Parent company, subsidiary, affiliate, branch)
Be doing business in the US or have plans to set up a business in the US as an employer, and in at least one other country, for the duration of the employee’s stay in the US under an L-1A visa.
For the employee to qualify to a company transfer visa to the USA via an L-1A, they must:
Have one continuous year of employment with the foreign company within the last three years.
Provide a managerial or executive service (with decision-making authority) in the US branch of a foreign company when they transfer.
Read more on the requirements for a L-1A visa on the US Citizen and Immigration Services website.
How Long can an Employee Stay in the US with a L-1A Visa?
Qualified employees transferring to the US to establish a new office via an L-1A visa, have a twelve-month validity period.
After one year of setting up a business in the US, if the employee wishes to stay, a re-application must be made. Employees under the L-1A visa can request extensions in increments of up to an additional two years, until they reach the maximum stay of 7 years.
The L-1B Visa
Intracompany Transferee Specialized Knowledge
The L-1B visa is for transferring foreign employees to the US with “specialized knowledge.” If you are still setting up a business in the US from abroad, you can use this visa to transfer an employee to help you establish a US office.
What does specialized knowledge refer to?
To be eligible for an L-1B visa, the foreign employee must possess special knowledge of the company’s service, product, procedures, equipment, research, management, or other interests and its application in the international market.
Requirements for L-1B visa
To submit the L-1B visa application, the employer is responsible for filing Form I-129, Petition for a Nonimmigrant Worker with fee, on behalf of the employee.
To submit an L-1B application, the employer must:
Have a qualifying relationship with a foreign company (The same requirements as the L-1A visa).
Currently be doing business in the US or planning for setting up a business in the US as an employer, with a business presence in another country for the duration of the L-1B visa.
The requirements for an employee to qualify for an L-1B visa include:
The applicant will need to have worked for the foreign corporation for at least one (twelve months) of the last three years.
Evidence that proves specialized knowledge within the company as defined by the USCIS.
How Long can an Employee Stay in the US with a L-1B Visa?
Qualified employees relocating via a company transfer visa to help when setting up a US business will be allowed to stay for a maximum of one year. Employees under the L-1B visa can request extensions to stay in the US in increments of up to two years, until they reach the maximum limit of five years.
The H-1B Visa
For specialist Occupations
The H-1B visa is one of the most popular types of US work visas. It allows US employers to temporarily employ foreign workers in specialty occupations. H-1B visas are in high demand, so much so, that the visa is based on a lottery system to secure it.
If your employee applies for an H-1B visa, they are not guaranteed to be accepted on to the program due to annual H1-B caps.
Requirements for H-1B visa
Applications can file for a H-1B visa start on April 1st of each year. It is recommended to file early, as the application limit is typically reached within the first day. To be eligible for a H1-B visa, the employee must:
Hold a bachelor's degree or the equivalent experience/specialized training in the occupational field.
Have a valid US job offer with sufficient merit as described within the USCIS guidelines.
A salary above the prevailing wage (determined by the Department of Labor),
A role in the most common H-1B visa fields such as finance, architecture, technology, and engineering.
More technical information on the requirements for the H1B visa can be found on the US Citizen and Immigration Services website.
What is the H-1B Visa cap?
The H-1B visas are subject to a 65,000 cap (limit), on the number of visas issued each year. In 2014, there were 170,000 H1-B applications on April 1st - the day the new quota was released, which led to a ballot selection system.
Are there any exceptions to the H-1B visa cap?
The first 20,000 H-1B applications that contain a master's degree or greater, are not subject to the cap. Additionally, nonprofits and academic institutions are often considered cap exempt.
How long can an employee etay in the US with a H-1B visa?
Employees can stay in the US for up to three years under the H-1B visa. H-1B visas are eligible for extensions, but usually cannot go beyond six years.
Can employees apply for permanent residency with the H-1B visa?
International employees are eligible for permanent residency on the H-1B visa. As an employer, if you want to transfer foreign employees to work for your US business permanently, you’ll need to file an application, which can take a few months to several years, depending upon your situation.
The H-2B Visa
The H-2B visa program is a temporary type of US work visa. It enables US employers, who meet specific requirements, to transfer foreign employees to the US to fill temporary nonagricultural jobs.
Requirements for H-2B visa
If you wish to engage a foreign worker under a H-2B visa, as a US employer you must file Form I-129, Petition for a Nonimmigrant Worker, on a prospective worker’s behalf. The requirements for the H-2B visa include:
You must submit evidence that proves there is limited qualified US applicants who are qualified, willing, or available to work in the proposed temporary role.
Evidence that the employment of a foreign worker under the H-2B visa will not adversely affect the wages and working conditions of US citizens employed in similar roles.
The job role is a temporary position for a one-time occurrence such as a temporary event, or a seasonal need.
Full details of the requirements for a H-2B visa can be found on the US Citizen and Immigration Services website.
H-2B Visa Cap
H-2B visa applications are subject to a 66,000 cap (limit), on the number of visas issued each year. This is broken down into:
33,000 for workers who begin employment in the first half of the fiscal year (October 1 - March 31)
33,000 for workers who begin employment in the second half of the fiscal year (April 1 - September 30).
Any unused numbers from the first half of the fiscal year will be available for employers seeking to hire H-2B workers during the second half of the fiscal year.
How Long can an Employee Stay in the US with a H-2B Visa?
The maximum period of stay in the US under the H-2B visa is 3 years. Depending on the temporary labor certification USCIS may grant H-2B classification for the time authorized to complete the temporary project.
Ready to Enter the US Market?
We’re guessing you’re thinking of entering the US market, when you’re researching types of US work visas to transfer employees. As a US Employer of Record, we’re here to help you get feet on the ground. Once you’re ready to hire US nationals, we cover payroll, employment compliance, US employee benefits, and your employee’s HR queries. All you have to do is focus on building your US business.
Disclaimer: All information written here is for general informational purposes only and is not intended to be a substitute for professional and/or legal services.
NOTE: Every situation is unique. Make sure to check with USCIS as well as a qualified immigration attorney before deciding on the visa route for you/your employees.