No Substitute For Talent: Is talent mobility a threat or 
OpportUnity to Foreign Direct Investment?

Debating the intricacies of immigration reform remains a hot topic in the run up to the US mid-term elections. Seldom explored in all this is the practical implications for overseas companies who wish to establish bases of operations in the US. For the uninitiated, the difficulties that can be faced navigating this convoluted system can be very expensive. It’s all about planning your approach, understanding the legislation and being smart about what you want to achieve. Is the US a welcoming place to set up and do business? Absolutely, as long as you play by the rules.

US visa lawyer, Deirdre O’Brien specializes in dealing with Irish companies who wish to travel to the US on business, either on extended visits or setting up offices. O’Brien will be at IIBN Opportunity conference this week, contributing to the discussion on talent and mobility, using her expertise as a US visa lawyer to explore some of the challenges of doing business between Ireland and the US from a human capital standpoint.

Read more stories from IIBN Opportunity on IrishCentral.

O’Brien spoke to IrishCentral about her work and offers some practical advice for business professionals who are looking to the US to expand their operations.

Knowledge is power:

Work visas are a major consideration for Irish companies doing business in the US; yet many business visitors will cross their fingers and hope to meet the same friendly immigration officer they met last time at Dublin or Shannon, instead of finding out what the rules for business visitors are and addressing their visa needs appropriately. Sometimes the proposed activities are perfectly allowable but lack of knowledge and confidence can land people in trouble. Knowledge is power; dispelling misconceptions so you understand exactly what you can and cannot do on visa waiver (ESTA) or B visa for visitors is a first step in this process.

Timing is everything:

When a company or an individual contacts our firm to inquire about visas, they’re usually at one or more of the following stages:

- Thinking about expanding to the US/ exploring the market

- Doing business with US customers but without a US presence

- Sending employees from the Irish company to the US without work visas

- Personnel are experiencing difficulty going through Immigration

- Have established operations and need to transfer staff

Clients often think their challenges are unique but this is rarely true. With practical, feasible advice at the outset, you can establish a plan of action with the goal of creating or maximising your visa options. We often find at this juncture that clients need US incorporation and tax advice as well. Problems, real or perceived, may be resolved by a timely introduction to the right professional.

Options in a Nutshell:

Once a company needs to transfer higher level staff (executives, managers, specialists) to the US, the most common options to consider are L-1 intra-company transfer visa, E-1 treaty trader visa, E-2 treaty investor visa, H-1B professional visa and J-1 intern/trainee visas.

Clients often think they need the same visa category as friends or colleagues, but one size does not fit all. Even if there is eligibility for more than one visa category, it’s important to consider the differences which will impact not only the outcome but also timing and cost. A company that needs to send software engineers to the US for example, should look to E rather than L visas where possible, because the L visa standard for ‘specialized knowledge workers’ is much higher than the E visa standard for ‘essential skills workers’. Similarly, the definition of ‘Manager’ for L visas is much more strictly construed than for E visas. L-1 visas are most suitable for companies whose business in the US is already well-established; but even in those cases, E visa is usually a more economical route—especially if a company needs to send more than one or two individuals.

Something that might surprise is the fact that E-1 treaty traders do not need a US presence at all. Trade may be conducted exclusively from the home country. Many E-1 clients are delighted at the prospect of avoiding or postponing establishing US operations, although in practice most companies end up doing so quite quickly after receiving visas simply because it’s good for business.

H-1B visas may sometimes be the best category for a professional, but they’re subject to a quota which is woefully short of demand, and for most of the year, the H-1B is not even an option. Another disadvantage is that spouses of H-1B holders are not permitted to work in the US, unlike spouses of L and E visa holders. Immigration Reform proposes to increase the quota and allow H spouses to work.

J-1 intern and trainee visas are useful categories in some instances. The Irish graduate visa (J-1 IWT) allows the applicant to travel to the US with visa in hand to look for an internship. The problem we find is that J-1 graduates have no options at the end of their internship unless they’re one of the lucky H-1B recipients. Significantly, Immigration Reform proposes to create 10,500 professional (E-3) visas for Irish nationals.

US Immigration Reform

Although Immigration Reform is a political hot potato and has been stalled by Congress since the passage of the Senate Bill in June 2013, it is widely anticipated that some provisions of the Bill will finally be enacted after the midterm elections this week. All eyes are on proposals for a new Start-up Visa and a new Greencard category for certain entrepreneurs. Whatever shape US immigration reform takes in future, it is likely to be good news for doing business in the US.

Visit this resource for more detailed information about US visas.

O’Brien & Associates is a US business immigration law firm with offices in Ireland and New York.