In some respects, it is arguable that foreign employers have more options available to them for bringing foreign workers into the United States than U.S. companies. This is because foreign comapnies not only have available to them all of the standard work visas available to U.S. employers, but also two visa categories tha not all U.S. companies can take advantage of -- the “E-2 investor visa” and the “L-1 intracompany transfer visa”. However, when one examines other countries' immigration categories, it is clear that these two categories are available to U.S. companies who wish to invest in or transfer employees overseas.
E-2 Investor Visas
The E-2 visa category is currently available to companies and foreign nationals from 76 countries. Although this visa category does not sound like it would benefit foreign employers, there is a sub-category of this visa for “essential skills employees”. These are employees who have special qualifications that make their work at the E-2 company essential to the efficient operation of the U.S. enterprise. This could be in order to facilitate the start up of a new ocmapny, or to service a contract with a U.S. company.
In assessing whether an employee's skills are “essential”, the government will consider the following factors:
The degree of proven expertise of the employee in the area of specialization;
The uniqueness of the specific skills;The length of experience or training with the company;
The function of the job to which the employee is destined;
The salary such special expertise can command; and
The availability of U.S. workers.
L-1 Intracompany Transfer Visas
The second, and more known, visa category for foreign companies is the L-1 intracompany transfer visa. This visa cateogry is available for:
- Executives;
- Managers; and
- “Specialized Skills” Employees.
Using the L-1 visa for executives and managers is fairly straightforward. However, in recent years the U.S. Citizenship and Immigration Services has taken the position that many employees that previously qualified as specialized skills employees no longer meet this crieteria. This is specially true in the IT and software development industries. In fact, it is arguable that the U.S. government will not accept that any software development or IT employee has sufficiently specialized skills in any software other than one developed by and used soly by the sponsoring employer to justify issuance of an L-1 specialized skills employee visa.
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