Common US Visa and Immigration Myths

The law firm of Ortega-Medina & Associates often receives inquiries from HR Professionals regarding employees who have suffered United States immigration consequences due to their reliance on erroneous information found on the Internet. While much information found on the internet may be accurate, we are aware of an abundance of visa myths arising out of incorrect information perpetuated across the internet on sites ranging from chat boards to government information pages.

Unfortunately, these visa myths often lead to legal consequences of varying degrees, including, for example: a.) A foreign employer may send one of its employees to the United States mistakenly believing the employee is authorized to carry out certain business activities that are, in fact, prohibited by law, leading to refusals of entry, visa denials, or worse; or b.) A businessperson may forego applying for a specific visa category that would otherwise allow him or her to establish a profitable business in the United States, due to a mistaken belief that he or she is ineligible for the category.

The fact of the matter is that United States immigration law is rarely, if ever, straightforward—and it is important to distinguish between the reality and the myths. In this article, therefore, we address nine (9) visa myths most commonly brought to our attention by our clients, in the hopes of helping HR Professionals and individuals engaged in cross-border business activities to avoid costly missteps.

Myths Associated with Short-Term Business Activities

Myth 1: “We need to send one of our employees to the United States to do some work on our behalf. Our employee will not be paid by a United States company and will stay only for a short period of time; therefore, she may enter on the Visa Waiver Program/ESTA.”

The Reality: The Visa Waiver Program does not authorize productive work, regardless of where the business traveler’s employer is located, or regardless of whether or not the business traveler is paid for his work. This same rule also applies to individuals holding a standard B-1 Business Visitor visa. The business activities allowed under the Visa Waiver Program and standard B-1 Business Visitor visa include, but are not limited to, attendance at business meetings, conferences, seminars, and exhibitions. However, conducting leadership and management training seminars, or other training events, is not authorized on the Visa Waiver Program.

It is important to be entirely clear on whether your employee’s business activities are authorized under the Visa Waiver Program. If your employee performs unauthorized work in the United States, he may be removed from the United States or refused entry to the United States on a future trip. Your employee may thereafter be unable to travel to the United States on the Visa Waiver Program, even as a tourist, and may face problems in securing a B-1 Business Visitor’s visa in the future. Such personal legal consequences could potentially lead to a claim by the employee against the employer that sent her to the United States, as the employee may assert she made the trip under pressure.

Within the B-1 visa regulations, there are special subcategories of B-1 visas that, when granted, allow different types of productive work. The most common of these subcategories is a Special Business Concession (also known as B-1 in lieu of H visa) that allows qualifying individuals to perform productive work in the United States on behalf of a foreign employer. Employers generally find applications for the Special Business Concession visas to be less onerous compared with more traditional visa categories as the application is presented directly to the United States Embassy or Consulate abroad. However, the visa application must clearly demonstrate the employer’s need to send the applicant to the United States, as well as the applicant’s qualifications establishing his or her eligibility for the Special Business Concession category, and must conform with the frequently changing procedural requirements of the US Department of State. We recommend that you consult with a US-qualified immigration attorney if you wish to pursue this option for one of your employees, given that a failed visa application, even through a simple misstep, may also render the applicant permanently ineligible to travel on the Visa Waiver Program.

Myths Associated with L1 Intracompany Transfers

Myth 2: “Our company’s United States affiliate must be trading for at least one (1) year before we can transfer one of our employees on an L1 visa.”

The Reality: This is not the case under the L1 “New Office” regulations. These regulations allow individuals employed by an affiliated company abroad in a managerial, executive, or specialized knowledge capacity to be transferred to a brand new United States company to commence the operations of the company.

The L1 visa under the “New Office” regulations will be issued for up to one (1) year initially, and the sponsoring company must demonstrate in its petition that the transferee will be in a position to step away from any duties in the set-up of the company that are not strictly managerial, executive, or that do not require specialized knowledge, by the end of year one (1).

A reverse version of this myth suggests the transfer may occur even before the establishment of the United States affiliate. In actuality, whilst an L1 visa may be issued to a transferee prior to the actual commencement of operations, USCIS must be satisfied in reviewing the visa petition that there is an already-established United States entity prepared to receive the transferee in formal “bricks and mortar” business premises. To facilitate the visa process, our law firm often assists foreign companies in this initial formation and establishment of the United States entity, which we handle in conjunction with the preparation of the L1 visa petition to avoid unnecessary delays.

Myth 3: “The candidate we would like to move to the United States is paid as an independent contractor, not as an employee. Hence, she is not eligible for an L1 transfer to our United States affiliate.”

The Reality: The candidate may still be eligible for the L1 visa category. Contractors that work exclusively for the foreign company, but are paid as contractors for tax reasons, may still be transferred to the affiliated United States company on an L1 visa if they are otherwise eligible. During our initial consultation with an employer, we analyze the current and prospective roles to ensure that these qualify for the L1 category under the relevant laws and regulations. If the candidate does not meet the requirements for the L1 visa category, there are often other visa options available.

Myths Associated with Company Registration under an E2 Treaty

Myth 4: “Our company must invest at least $250,000 USD in the United States to be eligible for registration under the E2 Treaty category, in advance of any E2 Employee Transfers.”

The Reality: Not necessarily. The US Department of State (“DOS”), the United States government agency that adjudicates E2 company registrations, does not set a minimum investment figure. Instead, the rules state that the investment must be substantial. The dollar figure required for a substantial investment depends on the nature of the business to be started or purchased. Your company’s investment must represent a substantial proportion of the total value of the business to be purchased, or it must be sufficient to start up a profitable new business. Our firm has handled successful E2 registration applications for companies investing as little as $50,000 USD when this was the total amount required to start up the business to the point of operation. Following successful registration of the company with the DOS, E2 Employee transfers can be arranged quickly and at relatively low cost, as compared with categories such as L1 or H1B.

Myth 5: “Our director may apply for E2 visas to allow her to travel to the United States to invest in the creation of an affiliate or branch office.”

The Reality: This is not correct. Before one may legally apply for an E2 visa, the investment of money, goods or intellectual property must be completed, and commercially at risk. Certain regulations do allow travelers to visit the United States pursuant to the B-1 category for the purpose of making E2 qualifying investments. However, such matters must be handled carefully to ensure that the activities the investor carries out are authorized under the relevant United States immigration rules. For example, the investor will not be eligible to actively manage the United States enterprise, or otherwise work in the United States enterprise, until the relevant embassy or consular unit approves the subject E2 registration application and has issued the corollary E2 visa. Similarly, the officer at the port of entry may refuse the investor entry to the United States or, worse yet, administratively deported unless he or she is satisfied that the investor will only engage in those activities authorized by the E2 viva category.

US Business Immigration law firms customarily work with companies at the initial stage of their expansion to the United States. They will typically offer services to review the proposed investment activities in the United States and to provide documents for presentation at the port of entry in support of the investor’s proposed activities in the United States, in anticipation of a future E2 application.

Myths Associated with Arrests, Cautions, and Convictions

Myth 6: “Our employee has a criminal record. He is therefore required to apply for a visa before traveling to the United States.”

The Reality: It depends on the particular applicant’s record. This myth most commonly arises in relation to Question 2. on the Electronic System for Travel Authorization (“ESTA”) required to travel to the United States. Question 2 asks: Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?

When one answers “yes” to Question 2, US Customs and Border Protection reviews the application and determines whether it will authoize travel or whether the traveler must apply for a visa at a United States embassy or consulate abroad before traveling to the United States. The portion of the question that generally causes confusion is whether the arrest or conviction was one which resulted in ‘serious damage to property’ or ‘serious harm to another person’. The guidance notes for Question 2 indicate that the terms ‘serious damage to property’ and ‘serious harm to another person’ equate to the United States legal term of art ‘crime involving moral turpitude’ (“CIMT”), which is even more confusing to the layperson. Common law in the United States defines moral turpitude ambiguously as ‘conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’ Furthermore, the punishment imposed does not shed any light as to the presence or absence of moral turpitude. For example, some crimes punishable by only a fine may be considered crimes involving moral turpitude, while other crimes generally considered by the general public to be serious are not.

The determination as to whether a ‘foreign arrest or conviction’ involves moral turpitude requires a comparison of the subject criminal record against both the equivalent United States Federal or State criminal statutes and the relevant United States immigration laws. We recommend that you consult with a qualified US immigration lawyer before instructing the subject employee to complete the ESTA questionnaire or contacting the United States Embassy or Consulate to schedule an appointment for a visa application. The United States Embassy or Consulate do not advise in advance as to whether it considers a particular arrest or conviction is a CIMT. Only a qualified US immigration lawyer will be able to provide insight into this in advance of the consular appointment and will be able to assess the likelihood of success in such an application.

It is quite common for an individual that legally could have answered “no” to Question 2, to nevertheless book a visa interview, either because he is uncertain about the definition of CIMT, or because he directly consults with the DOS call center and is instructed to do so. At the visa interview, even if the attending officer is unable to find that the arrest, caution or conviction is a CIMT, she may nevertheless deny the visa application on other grounds, such as “medical inadmissibility” in the case of a Drink-Drive arrest, or for the less comprehensible “insufficient ties outside of the United States”. A visa denial on these grounds will render the individual who would have otherwise received ESTA approval unable to travel on the Visa Waiver Program. Furthermore, the visa denial remains on one’s DOS record for life and is quite difficult to overcome in a future application as Embassy officials typically defer to the previous denial unless there has been a material change of circumstances.

Myth 7: “Our employee’s criminal conviction is now spent (or expunged), so he does not need to disclose it to the US Immigration Service or to the Embassy of the United States.”

The Reality: The United States government does not recognize the concept of spent convictions. An arrest or conviction that falls under a category requiring disclosure must always be revealed regardless of how long ago it occurred and regardless of whether it has been removed from one’s record.

Other General Immigration Myths

Myth 8: “Once one has spent several years in the United States on a non-immigrant visa, one is automatically eligible to receive a “Green Card” (i.e., Legal Permanent Resident status).

The Reality: Unlike many countries, an individual does not automatically become eligible for Lawful Permanent Resident (“LPR”) status after living in the United States for a certain number of years. The United States grants LPR status following approval of a sponsored petition or application process that is separate and distinct from the non-immigrant visa process.

These sponsored petitions may be lodged by qualifying US employers, or by certain United States citizen or LPR family members. A number of different categories exist to petition for LPR status, and each category maintains its own requirements and timescales. These categories normally face higher scrutiny and more requirements by USCIS than nonimmigrant petitions, and it is wise to consult with a qualified United States Immigration Lawyer before commencing the process.

Myth 9: “Our employee has remained in the United States for the full 90-days authorized by the Visa Waiver Program, but is not yet ready to leave. Hence, we will fly her out for the day so that she will be able to stay on for another 90 days when she re-enters the United States.”

The Reality: Maybe. Each time one seeks to enter the United States, a US Customs and Border Protection (“CBP”) officer determines one’s eligibility to enter the United States and, if admitted, how long one may stay. Lengthy stays of more than a few weeks and particularly stays for the entire ninety (90) days followed by a quick return to the United States may arouse the suspicion of CBP. Re-entering the United States after a full ninety (90) day stay and brief departure is not strictly prohibited, but a port officer may nevertheless deny one’s entry based on suspicions that the visitor will not leave by the expiration date recorded on her electronic I-94 Record of Admission, that she will engage in unauthorized productive work while in the United States, or that she intends to permanently reside in the United States.

One should always discuss one’s need to keep an employee in the United States for more than ninety (90) days with a qualified US immigration attorney to determine if there is a visa that may help facilitate their travel to the United States throughout the year. It is also wise to consult with an accountant or a tax advisor familiar with United States taxation as the individual may be subject to United States tax liability after remaining in the United States for more than 180 days in the aggregate in any given year – even on the Visa Waiver Program.

Conclusion

These are just a handful of the visa and immigration myths that abound in the public domain, including on internet forums and chat rooms. Reliance on these myths can lead to serious negative consequences, including unnecessary visa denials, invalidation of one’s right to enter the United States on the Visa Waiver Program, loss of money and business opportunities and even removal or deportation from the United States. Even if you intend to handle your company’s visa or immigration matter on a DIY basis, it is best to consult with an experienced US immigration lawyer – if only to confirm your understanding of the relevant US immigration laws and regulations. Seeking professional advice will minimize the danger of misstepping as you attempt to navigate the US immigration minefield.