Virginia, US
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| Lisa Koenig

Talent Swaps from a U.S. Immigration Perspective

As the war for global talent wages on, employers increasingly have been turning to the use of short-term “talent swaps” or “global exchanges” to attract and retain their high potential employees (HIPO'S). These exchanges afford an employee the opportunity to work or train in a foreign location,  in order to further develop their skills, and provide them future mobility within the worldwide organization.

My London-based Partner Natasha Catterson and I see these types of opportunities increasingly being sought out by millennial employees, who are keen to gain foreign experience at an early stage in their career. Therefore, we thought it would be interesting to survey this phenomenon from both sides of the Atlantic.

Talent swaps are certainly an exciting and increasingly popular vehicle for talent development. However, they can prove challenging from a U.S. immigration perspective. Advance strategic planning is key to make sure that the program is designed in a compliant manner. This blog will focus primarily upon the most common inquiry that we see, namely, whether entry as a business visitor is permissible. As a general rule, the range of options potentially available may fall into three general tranches of immigration options.

  • Business visitor travel - either on Electronic System for Travel Authorization (“ESTA”) visa waiver travel, or as a B-1 Visitors Visa for those ineligible to use the Visa Waiver Travel program;
  • Student/trainee/intern scenarios, options;
  • Intracompany transfers or Treaty Trader or Investor categories for Essential Skills worker hailing from eligible investor countries.
Threshold Questions to Consider
The threshold questions will  focus  upon the following inquiries:
  • What activities will the employee be performing?
  • Who will pay the employee (foreign or U.S. organization)?
  • How long will the employee need to be in the United States, and will multiple trips be envisioned?
  • Will the rotation involve solely training, or will it also involve productive employment?
Staying Within the Lines of Acceptable Business Visitor Activity
Employers contemplating establishing a pool of potential HIPO’s to participate in a global talent development program will need to survey their talent to flag some initial eligibility issues. First, the employer must consider whether the activities contemplated fall under acceptable business visitor activity. Second, the employer must determine whether the employee may travel under ESTA, and if not whether s/he currently possesses a valid B-1 visa that will enable the employee to travel to the United States quickly without the need to lodge a new visa application at the American Embassy in the home country jurisdiction. A  young applicant coming from a developing country will often face heightened scrutiny, and a possibility of visa denial, if the employee has never previously traveled to the United States.

Often, visa waiver travel can be sufficient for a stay of less than 90 days, provided that the employee remains on the foreign payroll, is undergoing training at the U.S. location, and is not rendering services that would be considered to be productive work, on behalf of the U.S. employer. Appropriate visa waiver activity can include consulting or even shadowing business associates, attending conferences, and attending short-term training. Notably, the period of time to be spent in the United States is not the only factor to consider in shaping a compliant visa option -- as the activities to be performed are critical to the assessment.

Coverage for Maternity Leave or Vacation Absence is not suitable Business Visitor Activity

Filling a short-term gap such as a Maternity Leave or vacation coverage would not be appropriate business visitor activity. Take the situation of a HIPO employee in London who is called upon to cover a colleague’s three-month U.S. maternity leave. Even though the contemplated time period is short, business visitor travel would not be appropriate since the UK colleague is being called upon to cover and perform the work of the U.S. colleague, on behalf of the U.S. employer.

Consider Intracompany and Treaty Visa Options when a Work Visa is Required

Where the activities contemplated expand beyond the range of appropriate business visitor activity, employers can consider certain work-authorized visa options instead. Intern and Trainee (J-1) visa options can often fit the bill in offering up options for qualified candidates to work and train in the United States for periods of twelve to eighteen months, respectively.

The L-1 Intracompany transfer category can prove useful for qualified employees who have worked overseas for a related company. The L-1 visa (or Blanket L-1 Visa Program for large multinational companies) may be used to transfer qualified managers, executives or specialized knowledge employees, who may have worked for a qualifying company abroad for at least one year in the preceding three years, and who the company presently wishes to rotate into the United States for a qualifying role.

Similarly, another commonly used nonimmigrant visa is the E-2 Nonimmigrant Investor category. The E-2 visa, which requires prior registration at an American Embassy abroad, allows for the transfer of certain treaty nationals, where there has been a substantial investment of more than 50 percent by a treaty national. The employee must be sought to fill a managerial, executive or essential skills role, and must be a passport holder of the same treaty country. Notably, the employee need not have prior experience working with the company abroad.

Employers and employees are advised to not take chances. An unsuccessful attempt to enter the U.S. on ESTA or as a B-1 visitor can result in being barred from future use of the program and in rare instances a direct return flight back to the sending country, without even clearing the customs area at JFK.

A well-planned talent swap can serve multiple benefits, and can certainly foster collaboration and ability to align with corporate mission and culture for large and growing international employers.

Please contact Lisa who is based in Fragomen’s New York Office if you are interested in exploring further.