How can I a UK citizen get leave to work in the US for a 6-8 month period?
June 27, 2009 3:07 PM   Subscribe

How can I a UK citizen work in the US for a 6-8 month period?

I live in the UK but am employed by an American company. I'd like (as would my employers) to work in America next year for a period of 6-8 months.

Getting an H1B1 visa is problematic (expensive even if unsucessful, chance of success at the moment is dubious as they're limited in number and they're running out of them).

According to an immigration lawyer, I do not qualify for an L1 visa as I am directly employed by my company (they do not have a UK branch nor have corporation status in the UK) and the L1 only allows affiliate employees to be transferred.

According to the Visa Waiver Program, I can work for 90 days in the US.

As I'd need to return to the UK briefly anyway after two months, can I:

Go to the US for two months; return to the UK for a week; return to the US for three months; go to Canada/Mexico/UK etc for a week/fortnight; return to the US for two to three months?

- Is that likely to cause problems?
- Is there anything I could to do to increase my chances (letter from my work saying I am just working for a 90 period and they'd stay guarantee)?
- Is there any restriction on the type of work I can do? (when I have been to the US in the past with work they've quizzed me at the border asking what exactly I'd be doing, would I be in meetings etc - I've never known if there is a wrong answer)
- Is there anyone who provides ruling on this? (US Embassy?)

(As I'd be bringing my (young) family and renting out my place here, I really don't want to get turned back at the border on the second occasion...)
posted by anonymous to Law & Government (14 answers total) 3 users marked this as a favorite
Unless someone else can chime in and say, "I've done this very thing and here's how I did it!" I think you ought to contact a law firm specializing in visa law. Your company should be able to help you find someone, or they (ideally) will do all the work for you.
posted by cooker girl at 3:27 PM on June 27, 2009

Go to the US for two months; return to the UK for a week; return to the US for three months; go to Canada/Mexico/UK etc for a week/fortnight; return to the US for two to three months?

You may have a problem doing this. Though there's no set-in-stone rules regarding how often you can use the VWP, the perceived wisdom is that you should spend as long out of the USA as you do in it. So three months in America, three months away, three months back etc.

This is just anecdotal though so I wouldn't take my word for it. I asked a lot of people and did a lot of reasearch on a lot of forums because I'm also a UK citizen and spent three months there under the VWP earlier this year (as a tourist).

Also, I wasn't aware we were allowed to work at all while under the VWP so maybe I don't know as much as I thought I did!
posted by uk_giffo at 3:36 PM on June 27, 2009 [1 favorite]

According to the Visa Waiver Program, I can work for 90 days in the US.

The page you link to says specifically that you cannot.
posted by ROU_Xenophobe at 3:46 PM on June 27, 2009 [2 favorites]

Have your company contact a US immigration attorney. Large/international companies usually have people on staff who deal with this or contacts with outside firms. If they want you to work here, they can afford to do what it takes to do it legally. Indeed, they are very much liable if they employ you to work illegally. You said you already talked to one who claims you aren't eligible for an L1 visa. What did he say you should do instead?
posted by zachlipton at 4:18 PM on June 27, 2009

Also, check out the details of the L1 visa. It's a lot more broad than simple affiliates. According to some sources, you are "A US organization which employs e.g. sales personnel overseas can sponsor such employees for L1's even if there is no non-US office." This sounds like you, right? The State Department manual has lots more to say on the subject. Basically, you could well be considered a UK "branch" of your company. A good immigration attorney who works with US companies can figure out how to present this information in the right terms for your petition to be successful.
posted by zachlipton at 4:42 PM on June 27, 2009

This is a weird situation and you haven't given us enough information to help.

-You are directly employed, not a freelancer/contractor? How does that work? If you are in the UK and your employer has no UK branch, how are they paying you? When you file your UK taxes, are you self employed? If your employment with them is structured the same as it would be if you worked for any other UK company, paid in GBP with the appropriate taxes taken out/paid to the appropriate authorities, then it seems like there might be argument to be made that you ARE the UK branch and thus possibly eligible for a L1, provided the employment history/time with employer check out. Keep in mind that this is a lengthy process as well, as your employer will have to advertise the job via a certain process, for a certain period of time (I want to say several months, don't mark my words) and be able to prove that there are no eligible domestic candidates for the job. This is usually a formality, but a time consuming one. However, if an attorney already advised you that you don't qualify, I suppose you don't qualify.

-You can not legally work in the US, in the way that you've described, under the visa waver program. As a temporary business traveler, you are not able to earn any money/income from a US company or entity while you are here. It is designed for business people going to trade shows, visiting clients, sales (the company, not sales person is making the money), servicing/installing equipment, that sort of thing. The scenario you've laid out would just simply be you working for the company like any other employee. Not going to work

-There is the training visa, though it's not supposed to be for employment purposes, and you can't earn anything besides expenses, but there might be a way to work with this? I don't know, only you know your situation. Read that category on the visa site and see if there's anyway you can make that work.

-Your idea to come in for a few months, leave, re-enter is a bad idea. It's also a widely exploited "option" and the customs agents are hip to this. My ex spent 90 days in the US setting up and training a company to use some machinery. His UK company had a subsidiary in the same state, and since we met and fell in love, blah, blah, blah, and since the US sub had been recruiting for this position for a year with no luck, he decided to take the job w an L1 Visa. The visa was going to take a while (anticipated 3 months, actually took 5 or 6 months), he figured he'd come back via the VWP, get paid through the main company in UK (or via petty cash as it turned out), leave the US once the visa came through (because it's not active till you enter the US through customs). Easy, right? Well, a month after he left, he was back on a plane to start a new life here. Clearing customs wasn't easy, and he was nearly refused entry because they were suspicious about him reentering so soon after staying the full 90 days from the last waiver. He had to show them bank records, mortgage records for his house in the UK, and many other things that he had with him (he was prepared with all of this). It wasn't till they got confirmation from his "employer" in the UK that he was, in fact, just attending a meeting at a subsidiary, and then returning to the UK, he would not have been let through. I don't know what state you'll be going to, but that state wouldn't allow him to get a drivers license till he got his visa, there were all sorts of issues, like rentals, banking issues. Once his waiver expired, he lived in fear of being stopped by the police (routine traffic stop, accident, etc.) and then deported. He lived in fear of his employees or coworkers learning his status and possibly calling the border patrol (this actually happened to my mother's coworker) out of spite. Since he didn't get a paycheck, and the company was sloppy, tasking the office manager with paying him through petty cash, each payday was a stressful event for him. Before his L1 came through, he had a horrible industrial accident, lost part of a finger, had to go to the hospital to have it stitched back on. Guess what? No insurance. No workers comp because he was not a legal employee. His company paid out of pocket, and made life hard on him. There was nobody to force them to pay him for the time he needed to recover, so they didn't.

My mother worked for a british company in the US. Most of the employees were from the UK. Several were illegal for long, complicated but reasonable reasons. They were always flying to the bahamas or canada and returning when their endless VWs expired. Often, they'd be refused entry and have to return to the UK for long periods of time, or forever. Once, a spiteful coworker ratted out a foreign boss she hated. The border patrol came to the office, asked the receptionist (my poor mother, it was her first week there and she didn't know any of the foreign workers were illegal) to see the guy and they took him out in handcuffs, sent him to the detention center for a couple weeks and deported him.

BTW, all of these stories were pre-9/11, in case that counts. So, you can see, it's not as easy as you'd think. Also, will your wife also be leaving the US and returning with you, or will she be overstaying her visa?

Answers to your specific questions about back to back waivers:

- Is that likely to cause problems?

I would expect it to cause problems, and feel very lucky if it doesn't

- Is there anything I could to do to increase my chances (letter from my work saying I am just working for a 90 period and they'd stay guarantee)?
The only thing that would increase your chances would be to leave for several months and then return. A letter from your US employer will make the denial quicker, it won't help your chances of entry

- Is there any restriction on the type of work I can do? (when I have been to the US in the past with work they've quizzed me at the border asking what exactly I'd be doing, would I be in meetings etc - I've never known if there is a wrong answer)
yes, the restriction is on any employment for which you will be paid by the US company. You can attend meetings, go to trade shows, be a guest speaker, make a sales pitch for a company to pay for services performed in the UK, and that's about it. You can not be a temporary employee (different from a temporary business traveler) on a B1 or Visa Waiver. So, you are restricted from doing anything you've described in your question.

- Is there anyone who provides ruling on this? (US Embassy?)
The US embassy processes visas after they are granted, so if you were to get a L1, you'd get it from the US embassy (or fedex your passport back to someone in the UK who will take it to the embassy for you, if they still allow that). For a visa waiver, you have no reason to go to the embassy. The department that provides ruling is immigration, and at entry, Customs. If you try to return, you'll be at the mercy of the customs agent.

If it were me, and my only option was working illegally on a business visa waiver, I'd make it a 3 month thing and that's it.
posted by necessitas at 6:50 PM on June 27, 2009

I've been investigating this for years, been to immigration lawyers, and.. well, I still ain't there. I'm pretty determined so it clearly ain't easy :) No, you cannot work in the US under the VWP.

If you have a degree, it'll help a little, especially with the H-1B which, lately, I've heard isn't as difficult as you're making out. If you're well known (and much celebrated) in your industry, you have a chance with a O-1 visa. If you own a company here and can set up a US branch, you have a chance with the L visas. If you have over $100,000 and some ingenuity, the E-2 visa will help (and I have known people who have successfully moved to the US this way, but it did require having that cash ready to roll).
posted by wackybrit at 7:04 AM on June 28, 2009

Is E2 the same as the million dollar investor entry?
posted by A189Nut at 8:33 AM on June 28, 2009

Wackbrit - the E2 typically requires way more than 100k, and varies based on business and area. I have never heard of anyone investing less than 500k, and I used to work with businesses started by british expats through the E2 on a daily basis. It's also not that simple. In addition to the investment amount, the business has to positively impact the economy, like hiring x amount of local US citizens at a livable wage (or more). Also, it can't be your first business, you have to demonstrate that you have run businesses successfully in the past and/or are qualified to do so. Basically, the same qualifications a bank would look for granting a business loan to someone.

Have you ever entered the diversity visa lottery? Some years UK citizens are eligible, some years they're not.
posted by necessitas at 3:04 PM on June 28, 2009

necessitas: A story of some Brits taking approx $200k to start up a company in Silicon Valley. One of my best friends also did something similar in the $100-200k range when his UK company was acquired.

Is E2 the same as the million dollar investor entry?

No. That's the EB-5. It has some issues, though - in the sense that a green card is not guaranteed with that route even if you've already spent the money. It depends how the investment works out.
posted by wackybrit at 11:27 AM on June 29, 2009

Wackybrit, I didn't see the part of the story that included any information about their investment. I do believe that acceptance into y-combinator had a lot to do with them getting the E2. Anyway, even if it was approx 200k, that's still falls into the "way more than 100k" category. As I said, I have never heard of heard of an investment of less than $500k, doesn't mean it doesn't exist, just means I didn't see it.

I have seen a lot of british E2 cases, as well british national examples of almost every other US visa situation. I worked for UK Trade & Investment for many years, part of my job was helping british exporters, part involved helping british companies establish operations in my territory and part involved working with british companies who had operations in my territory (a region that had, at the time, almost as many british businesses as american businesses). Many of the business people I worked with were in the process of securing an E2 or originally came to the US on an E2.
posted by necessitas at 4:06 PM on June 29, 2009

I didn't think this was a "I'm more qualified to give an answer than you" contest. I was only here to help.
posted by wackybrit at 9:49 AM on June 30, 2009

According to this site, H1-B visas are still available this year.
posted by galaksit at 4:35 PM on June 30, 2009

Wackybrit, I wasn't turning in to a contest, I was merely explaining the context in which I encountered E2 visa holders and seekers. What included as context for my experience is no more of a statement of qualification than your mention of having friends who did something similar.
posted by necessitas at 4:50 PM on June 30, 2009

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