Posted on

Intermittent Employees and I-9 Issues

Occasionally, a company requires an intermittent employee to complete a certain project or goal. A foreign national on an H-1B or L-1 visa may be employed in the US for a short period of time. . Regardless of how long a particular employee stays or how often they come in and out of the United States, an employee in the United States must comply with I-9 requirements, , even if they are paid by a foreign employer. More details on the I-9 process can be found here

An employer must ensure, at a minimum, that Section 2 of Form I-9 is completed within three days of the employee commencing employment. Sometimes an overseas employee may enter the US for the limited duration of a project and leave US without completing the I-9 Form. In such a situation, the employee must complete the Form I-9 upon their next arrival in the United States. However, this does not always cure the violation; the employer may find themselves in trouble with E-Verify standards.

A common misconception by employers is that rules/laws regarding worksite compliance do not apply to foreign employees. This is not true. Although for an employee on a foreign payroll the missing Form I-9 may not come up in an I-9 audit, the Immigration and Customs Enforcement may find it in their own audit; or if company tax records are scrutinized.

On a separate note, complying with the IRS tax requirements for both the employer and employee can be a very complicated process, requiring an analysis of the employee’s primary residence, the days spent in the United States, current income tax guidelines, the employee’s income, and other factors. It is imperative to check with a CPA.

Having a foreign employee work in the US requires the assistance of an expert immigration attorney, irrespective of the duration of employment in the US. Contact our office if you need assistance with hiring a foreign employee, I-9 compliance, or any other immigration issues.

Posted on

H-1B Visa Extensions

While the H-1B quota for the fiscal year 2014 is over, it is significant to note that those foreign nationals already in the US on H-1B visas are exempt from the annual quota. Therefore, USCIS will continue to adjudicate H-1B visas so far as they relate to extension and transfers.

The H-1B visa is initially valid for three years. However, an additional three year extension can be obtained. After this six year period, further extensions can be obtained in certain circumstances.

It’s important to note that the six year period of stay includes time spent in the US on both H-1B and L-1 visas. After completing 6 years of stay in the US, a person cannot be readmitted in the US on a H-1B visa until he or she has remained outside the United States for at least one year. Brief trips to the United States on a visitor visa during this period of one year are permitted. The regulations are not clear as to whether the foreign national must complete the period of one year at the time he or she is applying for a new H-1B or at the time he/she enters the US on H-1B. The process of filing the H-1B paperwork is complex and it is imperative that one retains a competent attorney.

A foreign national with an approved H-1B petition is entitled to remain in the US on the H-1B for the full period of 6 years.

In some situations, the H-1B visa can be extended beyond 6 years. These exceptions are based on either 1) per-country limitations; or 2) long-pending labor certification application or immigrant visa petition. The per country limitations involve situations where the H-1B visa holder is otherwise eligible for a EB-1, EB-2, or EB-3 immigrant visa (a “green card”), but cannot receive one because of the per-country quota limitations. In practice, this exception is applicable to EB-2 and EB-3 preference categories. This exception allow the H-1B visa to be extended in three year increments. The second exception is the long-pending labor certification or immigrant petition exception, and it is for H-1B visa beneficiaries who have filed either a labor certification or employment-based immigrant visa petition by the end of the H-1B worker’s fifth year. The extension in the second case is in increments of one year. The extensions are permitted for as much time as needed for a final adjudication on the labor certification application or employment-based petition.

If these rules surrounding H-1B extensions seem complex, they definitely are and require a trained attorney to guide a H-1B visa holder through the process. We are also hoping that rational minds prevail and Comprehensive Immigration Reform will remove some of these complex hurdles for hard-working H1-B visa holders. Contact our office if you have any questions regarding the H-1B visa extension process or any other of your immigration issues.

Posted on

Entrepreneurial Visa Options

The H1-B Entrepreneur

It is very much possible to hold a managerial position of a company you helped establish with a H1-B visa. On August 2, 2011, Secretary of Homeland Security Janet Napolitano and USCIS announced many immigration initiatives designed to boost the economy. The most notable one included a policy shift to allow a H1-B visa holder to have a majority or even 100% stake in his or her own company, including as a sole employee, as long as he or she can demonstrate that the company has the right to control the entrepreneur’s employment. Some examples include preferred shareholders or a separate Board of Directors that control the terms and conditions of the entrepreneur’s employment.

E-1 Treaty Trader and E-2 Treat Investor

Both the E-1 Treaty Trader and E-2 Treaty Investor applicant must be a national of one of the qualifying treaty countries, found here on the Department of State’s website. Noticeably, major countries such as India do not make it onto this list. Both visas have no limit on their issuance, are valid for two years and can be extended in two-year increments indefinitely. Both the E-1 Treaty Trader and E-2 Treaty Investor must be employed in a supervisory or executive role or have specialized skills are essential to the efficient operation of the business.

For an E-1 Treaty Investor, both the applicant and the trading firm must be of the same nationality of a qualifying treaty county (for a full list, see below). The company must be at least 50% owned by nationals of the treaty company. The international trade must be a sizable and continuing volume of trade between the countries and more than 50% of the total volume of the company’s international trade must be between the two countries. The applicant him/herself must be employed in a supervisory or executive capacity or possess highly specialized skills essential to the efficient operation of the company. “Ordinary” skilled or unskilled workers do not qualify.

For an E-2 Treaty Investor, the investment must be sufficient to ensure the successful operation of the enterprise, and “at risk,” meaning that there is a risk of loss (i.e. not a guaranteed loan). The investment must be in a functioning, real enterprise and do more than just provide passive income to the investor. E-1 Treaty Trader, the E-2 Treaty Investor

L-1 Intra-Company Transferee

The L-1 visa is a nonimmigrant visa that allows for established foreign companies to send managers, executives, and “key knowledge” employees to work in American branches, subsidiaries, or affiliates. The L-1 visa is split into two types: the L-1A visa for managers or executives, and L-1B visa for employees with “key knowledge” of the business’s products or processes. For both types of L-1 visas, they must be employed on a full-time basis. Conveniently, there is no numerical cap on L-1 visa issuances. It is possible to eventually petition for an immigrant visa (i.e. a green card) under either the EB-1 Multinational Manager and Executives option or the one of the EB-2 options, depending on the circumstances.

O-1 Individuals with Extraordinary Ability or Achievement

Individuals with extraordinary talents in the sciences, arts, education, business, or athletics may have the ability to continue in those fields while residing in the United States. While the eligibility criteria appears daunting – USCIS describes it as “a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.” , many entrepreneurs are successfully using the O visa to work for their own start-up companies. An entrepreneur could demonstrate that 1) there are published articles about their business/skill in major media; 2) a high salary evidenced by contracts; and 3) employment in a critical or essential capacity for organizations with distinguished reputations. The full list is on the same page linked immediately above. O Visa beneficiaries can stay for 3 years initially and then must apply for one year extensions after.

EB-5 Immigrant Investor

The EB-5 immigrant visa is the only option that provides a “green card” directly. Applicants can choose to directly invest in a business or pool their funds through a Regional Center; a Regional Center is a specially designated investment vehicle company that’s meant to manage and pool EB-5 funds. Some examples of popular investment projects include commercial and residential real estate, hotel development, and green energy production. Although the investment minimum requirement can vary from $500,000 to $1,000,000, the basic requirement is that each investment must create 10 full-time jobs in 2 years from the full infusion of the EB-5 investment.


Although these may seem like there are many different options for someone to start up their own business, as we noted in our last post there are many hurdles and issues that require an experienced business immigration attorney. These issues include basic financial milestones such as coordinating with professional consultants, drafting a business plan, incorporating your company, and of course navigating through the confusing immigration system’s own requirements. Contact our office to learn more and for assistance in starting up your own venture!

Our team is standing by to assist you in your immigration journey.
To learn more about who we are and how can we help, click the button below!

Check our Practice Areas