Tech execs looking to US need to get serious about visas

28 Nov 2013

As more Irish tech CEOs and their workers look towards the US and locating in Silicon Valley to grow their business, misunderstandings about how the US visa system works could cost them dearly, an expert warned.

Deirdre O’Brien, a US immigration lawyer with O’Brien & Associates who has worked with Irish tech companies to ensure they comply with US regulations, said that many CEOs and start-up team members make mistakes in terms of the US visa waiver programme and the B-1 visitor visa.

Like the maxim ‘fail to prepare, prepare to fail’, O’Brien said that often companies win business in the US or secure a pivotal meeting and in the 11th hour decide to send people over on the waiver programme.

“The waiver programme allows visitors to travel to the US without a visa for up to 90-days, for business or pleasure but not for actual working.

 “Firms are also making the mistake of sending specialists over to work on contracts without the proper visas. The problem there is that if they show up at an airport and the official doesn’t accept that they are engaged in allowable activities, they may be denied entry to the US and can never use the visa waiver program again. They must then go to a US embassy and apply for a B visa to enter the US.”

O’Brien has produced a helpful Slideshare for executives who need to understand how the visa system works and how it affects them.

O’Brien urged Irish tech companies planning to go to the US to plan ahead and ensure, for example, that if they are seeking E investor or trader visas, they do not reduce equity ownership below 50pc.

She has worked with numerous Irish tech companies to make sure they and their employees are equipped with the appropriate visas, including iQuate, (formerly Avego), Interactive Services and TerminalFour.

Lose the laissez-faire attitude

She warned that Irish companies have something of a laissez-faire attitude to visas and often the first question she is asked is, ‘how do we get around it?’

“Very often that attitude is unbelievable to other cultures. The key thing is to do things the right way – knowledge is power – if you find out what you are allowed to do and what your options may be, you can prepare in advance and perhaps increase your options.”

She added that the age profile of tech workers – between 25 and 35 – is also the age range that airport personnel scrutinise for security purposes, so it is important to ensure workers go with the right documentation.

“Otherwise if you are using the waiver programme and you’re attending an event, carry printouts of emails and invitations to show you are going for legitimate reasons.”

In terms of tech CEOs who spend some of their time in Ireland and some of their time in the US – whether it’s Silicon Valley or the East Coast and close to the financial sector – a B-1 business visitor visa may be the correct option.

“If you are spending less than two weeks a month in the US and not actively engaged in the management of a company, a B-1 visa may suffice.”

Other options that exist include visas for intra-companies transfers, or the L-1, which is important if companies have a business in the US. Executives/managers can go for the L-1A visa and specialist workers such as software engineers can apply for the L-1B visa. To avail of these visas, employees must prove they’ve worked with the company they are in for at least a year.  “There is often a disconnect between immigration requirements (big office/lots of employees) and business reality for the tech sector; careful advance planning is essential.”

Another valuable option for companies substantially trading with the US (E-1) or investing in a business in the US (E-2) is E treaty visas.  “E-2 for tech companies can be tricky because while traditional industries can spend up to US$100,000 in very little time, technology typically requires less capital investment so it can be hard to reach the required spend. Again, planning ahead is key. “

Another option is the H1B visa for degree holders. “Any US company can hire a foreign national, but this visa it is subject to annual quota with only 65,000 available worldwide.”

O’Brien shares the view with many tech executives that the H1B quota system is woefully short of demand and inherently flawed in its heavy regulation.  “H-1Bs are available for application on 1 April each year for a start date six months later in October leaving no visa options for many until the next quota opens.”

While many eyes are on the overdue Senate bill championed by US President Barack Obama that will result in new provisions, such as entrepreneur visas, O’Brien said now is not the time to take chances.

If anything, firms owe their employees a duty of care to make sure they are prepared with the appropriate visa documentation.

John Kennedy is a journalist who served as editor of Silicon Republic for 17 years