A special thanks to Amanda Brill who contributed to this article and hosted a live workshop on the topic.

Visa petitions case can now be denied without further information requirements, whereas in the past an application could only be denied after a request for clarification was made.
Policies such as “Buy American Hire American (BAHA)” aim to protect American workers but do not go into specifics. Most work visa applications now include an argument as to why the foreign national will not be a detriment to U.S. workers.
It is now more difficult to bring workers under the H-1B visa as the definition of an eligible profession is narrowed. About 70% of filings have required additional information.
O-1 Visa (Aliens of Extraordinary Ability) are probably the most fairly assessed with a 6% denial rate. The category is not limited to celebrities and Nobel-prize winners.

As the largest economy in the World and offering a wealth of opportunities, the United States is a popular immigration destination. With the 2016 election of a new government, immigration policy—which has long been subject to much debate and divided opinions—has undergone sweeping changes, adding layers of intricacy to what is already one of the most complicated visa systems in the World.

Much of the policy has been focused on curbing “illegal” immigration and preventing terrorism. Looking past the headlines, there is a place for those who seek to enter the country for legitimate purposes: “America is open for business” announced U.S. President Donald Trump at the World Economic Forum in Davos in January 2018. “There has never been a better time to hire, to build, to invest, and to grow in the United States.”

America remains a top place to live and work. While business immigration has increased in complexity, it is possible to successfully navigate the process with the right advice. With the help of U.S. Immigration attorney, Amanda Brill of TL Brill Parisi, we review policy changes and the best strategies to start a business or work in America.

Entry Basics

The most common way to enter the U.S. is through the Electronic System for Travel Authorization (ESTA), which is an automated system used for visitors from countries that are part of the Visa Waiver Program (VWP). These are countries that have low refusal rates for tourists and business visitor visas because they pose a low law enforcement or security risk and they do not have a high rate of overstaying or otherwise violating their stays in the U.S.

ESTA authorization allows stays of up to 90 days but it is not a visa and does not allow visitors to live or work in the U.S. Nonetheless, there are a number of permissible business activities under ESTA. For example: It is possible to set up business meetings and attend and speak at conferences. However, getting paid for speaking at a conference is not permissible with few exceptions.

For those lucky enough to be a citizen of an ESTA country, the process is relatively straightforward. It is possible to apply online prior to international travel, and in most cases, a response is received within a day or two of submitting an application. Visitors from non-ESTA countries or those who do not otherwise qualify for ESTA (for example, certain criminal activity and/or travel to a prohibited country can disqualify an applicant) need to apply for a B-1/B-2 entry visa.

Work Visas: What has Changed?

Those looking to live and work in the U.S. will need a work visa. According to Ms. Brill, work visas are broken into two main categories: 1) temporary non-immigrant work visas, and 2) employment-based immigrant visas.

These visas are predominantly petition-based meaning a business or corporation can apply for a work visa on behalf of their workers.

We outline below the main changes in the handling of work visas:

• Travel Bans: In June 2018, the U.S. Supreme Court Decision issued a decision upholding President Trump’s Presidential Proclamation banning citizens from 7 countries from entering the U.S. in a variety of circumstances depending on the individual’s country of citizenship. For example, Syrian nationals cannot apply for a temporary visa to visit the U.S. unless s/he is granted a waiver to do so. Whereas, Iranian nationals can apply for and receive F, M, and J visas (student and exchange visas) without the need for a waiver. Further, dual nationals of “banned” and “non-banned” countries are not subject to the Proclamation.

• Social Media Account Disclosure: The visa application process now includes optional disclosure the applicant’s social media accounts (DS-5535). This is not mandatory but is being used more frequently by embassies which can delay visa issuance due to security checks.

• Buy American Hire American (BAHA): This policy aims to prioritize and protect American workers without going into specifics. It has been applied to varying degrees of clarity in each government agency. However, the net result is that most work visa applications should include an argument as to why the foreign national will not be a detriment to U.S. workers.

• End of mandatory Requests for Evidence (RFE): A visa petition case can be denied without further information requirements, whereas in the past an application could only be denied after a request for clarification was made by the United States Citizenship and Immigration Services (USCIS).

• H-1Bs and the definition of a professional position: It is now more difficult to bring workers into the U.S. under the H-1B visa as new adjudication practices narrow and restrict the definition of an eligible profession. About 70% of filings have required additional information.

What Has not Changed (Much)

The good news is that there are number of visa options for those with professional expertise, in a managerial function or with extraordinary skill.

L-1A and L-1B Intracompany Transfer

These visas are reserved for those in a managerial post and/or specialised knowledge. Managerial positions are easier to demonstrate than specialised knowledge. Part of the application would require organisational charts, and training certificates. According to Ms Brill, USCIS statistics have revealed 75% of applications required further requests for evidence (RFE) with denial rates at 21-28%.

E-1/E-2 Treaty Trader and Investors

In the same category as L-1A and L-1B, these visas are nationality-based and only available to citizens of certain countries with whom the U.S. has treaties of commerce and navigation. These visas are probably most appropriate for those seeking to start a business in the U.S. if the nationality requirement is met.

O-1 Aliens of Extraordinary Ability

This visa category is for individuals with demonstrable achievement in the following sectors the sciences, education, business, athletics, motion pictures and television and the arts. According to Ms Brill, the O-1 visas are probably the most fairly assessed and the category is not limited to celebrities and Nobel-prize winners. Applications for 0-1 visas carry only a 30% RFE rate and the denial rate is only 6%.

While the odds are good for work visa applicants with demonstrable ability, policy changes mean more documentation required and longer processing times. In the world of business, there is limited margin for error and good professional advice is more important than ever for you and your company to realise your potential.