U.S. immigration laws are very complex and can cause problems and delays for those who fail to plan ahead. U.S. immigration laws distinguish between two types of persons: nonimmigrants (persons coming to the United States for a limited temporary period of time for business or pleasure) and immigrants (persons intending to remain in the United States permanently).
Generally, petitions or applications for immigration benefits are submitted either directly to a U.S. embassy or consulate abroad or to U.S. Citizenship and Immigration Services. Lawful Permanent Residency (also known as the Green Card) may be obtained in a number of ways, principally through employment or a family relationship.
The permanent residency process can take several years, so foreign nationals and employers should consider long-term plans as soon as possible. Most foreign employees work in the United States pursuant to a short-term, nonimmigrant visa. There are six commonly used nonimmigrant visas: the B-1, L-1, E, H-1B, O-1 and TN (or NAFTA) visas.
B-1 Business Visitor Visas: The B-1 business visitor visa enables a business traveler to visit the United States for a short period of time (normally six months or less) with extensions possible in some cases. He or she may not work for a U.S. company or be paid in the U.S.
Visa Waiver Program: Similar to the B-1 visa, citizens of most European nations, Japan and certain other countries may take advantage of the Visa Waiver Program to enter the United States for a period of 90 days, provided they are not paid in the U.S. and meet certain other requirements including having a machine-readable passport.
L-1 Intra-company Transferee Visas: Available for managers, executives and individuals with “specialized knowledge” of the company’s business or products who have worked abroad for at least one year within the preceding three years with a related company.
E Visas: Provided for by a treaty between the United States and many foreign countries, the E visa authorizes the employment by U.S. companies of executives, managers or those individuals who hold essential skills. An E-1 visa application requires proof that “substantial trade” between the U.S. and the treaty country is being carried out by the U.S. company. An E-2 visa application requires a showing that a “substantial investment” has been made by an overseas company or by foreign nationals in the United States.
H-1B Visas: H-1B Visas are available to individuals coming to the United States to be employed in specialty occupations. Specialty occupations include those that require the services of a professional with a university degree (of equivalent), such as scientists, engineers, computer systems analysts and some marketing specialists. H-1B visas may be issued for an initial three-year period and may be extended for an additional three years, for a maximum consecutive period of six years. There is an annual cap on the number of new H-1B visas that are granted each fiscal year.
O-1 Visas: O-1 Visas are available to aliens of extraordinary ability, including exceptional ability in business. To obtain O-1 classification, he or she must establish that he or she has achieved national or international acclaim. An O-1 petition may be approved for an initial period of three years, and extensions may be granted in one-year increments.
TN or NAFTA Visa: Permits citizens of Canada or Mexico to work in the United States in certain specialty occupations, such as lawyers, accountants or engineers. Canadian TN applicants may be granted a three-year admission, and Mexican TN applicants may be granted a one-year visa, but should be admitted to work for three years. The visas may be extended indefinitely so long as the foreign national has non-immigrant intent.
Most states in the U.S. generally follow the doctrine of strict liability. This means that if an individual is injured by a defective product, everyone along the chain of distribution is liable to the individual regardless of the degree of care used in the testing, marketing, sale or maintenance of the product. Although not always the case, liability most often rests with the manufacturer. Most entities doing business in the United States should obtain product liability insurance. A good product liability insurance policy should protect the entity against claims for the defective manufacture of products and should cover the cost of defending product liability for personal injury or property damage brought against the entity. However, product liability insurance should be viewed as a complement, not an alternative, to the other ways of minimizing the risk of product liability.
Terms and Conditions
A North Carolina business will need terms of sale and delivery that comply with U.S. law. Most states have adopted the Uniform Commercial Code, a uniform set of Statutes governing the sale of goods that is slightly modified from state to state. The rules codified in these statutes must be followed precisely when selling in the United States. Terms and conditions usually address such important issues as limitation of warranties and exclusion of certain damages. The North Carolina entity should also use terms and conditions of purchase when purchasing products or materials. These are particularly useful for frequent purchases of sophisticated products or materials used in the entity’s operations or production.
North Carolina businesses will need premises from which to operate. Leases for office space or manufacturing or warehouse facilities will often be lengthy documents containing many legal provisions. Landlords will typically provide the first draft of a commercial lease; however, the landlord’s form will often be drafted heavily in its favor. Landlords are generally reluctant to make extensive revisions to their form depending on the market and bargaining positions. It is therefore important for the prospective tenant to understand which lease provisions should be focused upon in a lease negotiation.
If a company decides to purchase developed or undeveloped land in North Carolina, it will enter into a contract with the seller to purchase and sell real property. The contract will not only dictate the purchase price, but will also govern the relationship between the prospective purchaser and seller during the due diligence period before closing and may include seller warranties which survive the closing. Due diligence activities may include a title search, property survey, phase I environmental study, feasibility study, property appraisal and obtaining financing commitments. It is important that the contract provide that the prospective purchaser is only required to close on the sale if the due diligence inquiry yield results satisfactory to the purchaser.
Laws in the United States regarding the employment of workers are less restrictive than in most foreign countries. North Carolina, in particular, promotes an effective and efficient workforce. North Carolina is a “right to work” state which means that the right of a person to work for a particular company cannot be denied solely because of the employee’s membership or non-membership in any labor union, organization or association. This is beneficial to employers because it discourages the formation of labor unions and helps to keep labor costs down.
North Carolina follows the employment at will doctrine which means without an agreement as to the term or length of employment, an employee can be terminated by the employer, with or without cause, at any time, except for certain illegal reasons. However, employers often require their executive employees to sign a written employment agreement, which generally includes provisions such as salary, benefits, length of employment, notice period for termination, covenants not to compete and covenants not to use or disclose confidential and proprietary information of the employer.
North Carolina also has a trade secret protection act that prohibits employees from using or disclosing information about its employer which is confidential and proprietary. However, many employers require their employees to sign a written confidentiality agreement.
Employers also need to be aware of various employment discrimination laws that protect employees (and prospective employees) from discrimination based on factors such as age, race, gender, religion, sexual orientation, national origin, and physical or mental disabilities.
The amount of wages to be paid to an employee is established by the employer, generally based on market and industry practices (although state and federal laws set a minimum wage that is consistently applied to all industries). For employees who do not fall under a specific exemption, overtime must be paid after 40 hours of work in a given week, at a rate of one and one-half times the employee’s regular rate. In addition, the employer must withhold a certain percentage of the employee’s income to pay certain federal and state taxes and make periodic filings to government agencies regarding the wages of each employee.
In North Carolina, employers are not generally required to grant employees any specific benefits. In practice, however, North Carolina employers may offer certain benefit packages as an incentive for employees to work for them. These benefits generally include one of more of the following: medical insurance, dental insurance, disability insurance, and profit sharing and retirement plans. Some incentive grant programs require at a minimum that an employer provide medical insurance benefits to its employees in order to qualify for that incentive program.
Many North Carolina employers adopt an employee handbook to govern the behavior of their employees and to describe the benefits being offered by the employer. The handbook will cover important aspects of employment and will inform employees what standards of performance and codes of conduct are acceptable in the workplace.
Regulation of activities that have the potential to impact the environment tends to be more detailed in the United States than in other countries. In large part, the federal government creates environmental regulatory programs that are then implemented by the states if the state meets federal standards. North Carolina meets the federal government’s program standards and directly implements the federal Clean Water Act and Clean Air Act as well as other statutory programs aimed at the regulation of activities generating or storing hazardous waste or the underground tank storage of petroleum and hazardous substances.
Businesses locating in North Carolina need to understand whether permits are required by environmental authorities before beginning construction. Permitting issues should be considered at the beginning of the planning process. The time for obtaining a permit can vary from weeks, for a simple sedimentation control permit, to many months if a complicated air emissions permit or wetlands permit is needed.
Intellectual Property Issues
Federal and state laws in the United States provide comprehensive protections and enforcement processes for patents (including design patents), trademarks, copyrights, trade secrets and other forms of intellectual property. The United States is a party to a number of international treaties and arrangements regarding intellectual property.
Trademarks can be registered in the United States at both the federal and state levels and, in addition unregistered “common law” trademarks are also protectable in the U.S. Therefore, businesses adopting a new corporate name or introducing a new brand in the United States are well advised to conduct a comprehensive trademark clearance search to determine whether the desired corporate name or brand can be used without infringing a pre-existing trademark. Patents are issued in the United States only at the federal level. United States patent laws were recently revised to establish a “first to file” patent system (instead of the previous “first to invent” system). If patent protection is desired it is advantageous to file patent applications as early as possible.
Immigration and Visa Service Providers
The following investor level members of the Charlotte Chamber provide top quality legal services to companies:
Alston & Bird
John Baron 704.444.1434 www.alston.com
Rayford Davis 404.995.6905 www.axiomlaw.com
Bradley Arant Boult Cummings
Dana Lumsden 704.338.6034 www.babc.com
Bryan Cave LLP
Katie Schwarting 704.749.8946 www.bryancave.com
Buchanan Ingersoll & Rooney PC
Ryan Briggs 704.444.3316 www.bipc.com
Cadwalader, Wickersham & Taft LLP
Stuart Goldstein 704.348.5258 www.cwt.com
Haynes & Boone
Scott Night 214.651.5523 www.hanynesboone.com
Hunton & Williams
Michael Nedzbala 704.378.4703 www.hunton.com
Michael Hawley 704.331-7438 www.klgates.com
Katten Muchin Rosenman LLP
Hayden Harrell 704.344.3142 www.kattenlaw.com
Littler Mendelson, P.C.
Jerry Walters 704.972.7000 www.littler.com
Scott Vaughn 704.343.2066 www.mcguirewoods.com
Moore & Van Allen
Ernest Riegel 704.331.1000 www.mvalaw.com
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Bernard Tisdale 704.342.2588 www.odnss.com
Albert Guarnieri 704.372.9000 www.parkerpoe.com
Jon Jordan 704.377.2536 www.robinsonbradshaw.com
Shearman & Sterling
Adam Hakki 212.848.4924 www.shearman.com
Sidley Austin LLP
Joseph Tompkins, Jr. 202.736.8213 www.sidley.com
Shumaker, Loop & Kendrick, LLP
Philip Chubb 704.375.0057 www.slk-law.com
The Hunoval Law Firm
Mathias Hunoval 704.626.4312 www.hunovallaw.com
Troutman Sanders LLP
Walter Fisher 704.998.4044 www.troutmansanders.com
Winston & Strawn LLP
Jack Cobb 704.350.7700 www.winston.com
Womble Carlyle Sandridge & Rice, LLP
John Hunter 704.331.4951 www.wcsr.com
Zeichner Ellman & Krause LLP
David Chenkin 212.826.5319 www.zeklaw.com
Blue color signifies the company is a Charlotte Chamber Economic Development Fund Sponsor