USA – NORTH CAROLINA Law and Practice Contributed by: Phillip Strach, Alyssa Riggins, Nathaniel Pencook and Cassie Holt, Nelson Mullins Riley & Scarborough LLP
4.2 Registration Requirements for Foreign Workers All foreign workers seeking to engage in productive employment (work) in the USA must either apply for an appropriate visa that grants work authorisation or have an otherwise-valid form of employment authori - sation, such as an EAD. Most work visa categories are company-sponsored, a process that usually starts with a petition filing by the employer on behalf of the foreign worker with USCIS. At a high level, a typi - cal work visa is obtained through the following three steps: • USCIS petition filing by the employer; • visa appointment/interview with a US consulate or embassy to obtain a visa sticker in the passport; and • entry to the USA and issuance of an I-94 admission record. It is important to remember that not every foreign worker will qualify for a visa, so it may be just a select few who can proceed through these steps. Addition - ally, there can be pitfalls along the way. By way of example, USCIS could ask additional questions at Step 1 and issue a Request for Evidence, or Notice of Intent to Deny, which will delay the process while the company and its counsel prepare a response and attempt to overcome the stated deficiencies. The primary visa category used by companies to employ foreign workers in professional level positions is the H-1B. There is annual allocation of H-1B visas each year (85,000) and, based on the demand in the past 20 years or so, USCIS conducts a lottery to distribute them. In most years, the chances of selection are in the range of 30%, so even when a company chooses to offer immigration sponsorship, there are no guar - antees it will be successful. Additionally, after USCIS approves the petition, the foreign worker schedules and attends a visa appoint - ment. The US State Department, which runs the US consulates and embassies throughout the world, will conduct a background check and may otherwise review the foreign worker’s “admissibility” to the USA across three broad areas, including economic, health and security-related grounds. If there is something suspicious (or blatant) in the foreign worker’s history
A related concept is that of the “business visitor”, who can enter the USA for a short period to engage in a limited set of brief activities such as meetings, con - ferences, training, contract negotiations and some other related matters – all of which must stop short of productive employment or work. Obtaining a B-1/B-2 visa (B-1 for business, B-2 for tourism) can often be obtained much more easily than a work-authorised visa, so it can seem attractive for a foreign worker to use it as a workaround. The US government is well aware of abuses of the B visa, and the US Customs and Border Protection Agency (CBP) is generally on high alert to sniff out potential offenders. A wrench can be used as a simple way to differen - tiate between appropriate business visitor activities and work. As a business visitor, a foreign national can meet with colleagues or customers and talk about a project involving the eventual use of wrenches, learn about how to use wrenches, and negotiate and sign a contract that involves wrenches, but the moment a foreign worker starts turning a wrench to achieve a productive end and gets paid for that service, they have entered the realm of work that requires employ - ment authorisation. In reality, there are many occupa - tions that do not fit neatly into the wrench example, and the determination of the appropriateness of a B entry is usually made subjectively by an individual officer who has quite extensive discretion. “Work” is a four-letter word to the CBP, and a foreign worker who utters it as the intended scope of their trip to the USA may be taken quite literally and possibly denied entry. There are penalties for employing foreign workers without valid work authorisation if such unauthorised work is discovered, so it is important to put appropri - ate limitations in place for business visitors and to secure a work-authorised visa when there is produc - tive employment involved. Employers should also keep in mind that only physical presence in the USA triggers the need for a work visa, so if they would like to employ someone remotely from another country, they are free to do that – at least from an immigration perspective. There could be other implications relat - ing to employment law in the person’s home country, and other practicalities such as processing payroll, tax deductions and benefits, so it is important to vet those as well.
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