Formation Issues

Growing Complexity of U.S. Visa Processing for Irish/NI Companies

Mike Burke Employment, Formation Issues, Immigration

U.S. visa processing is growing in complexity, with many new U.S. operations of Irish/NI parent struggling to qualify for classification to sponsor qualified professionals for work authorization in the U.S . New U.S affiliates usually do not qualify to sponsor foreign nationals for work authorization until they are fully established, with a lease for offices, investment, and in many cases U.S. personnel on payroll.

If a U.S. affiliate of an Irish/NI parent is not qualified to sponsor key personnel for work authorization, professionals may often qualify for a temporary professional visitor visa to travel to the US . B-1 visas and/ or B-1 in lieu of H-1 visas are alive and well at most European posts (including Dublin and Belfast) when a visitor can show that he or she is traveling to the U.S. for purposes of investing in a U.S. business, or engaging in professional services related to their employment outside the U.S. and their area of their expertise, provided they have earned a Bachelor’s degree equivalency. For example, an employee of an Irish/NI parent company may qualify for a B-1 visa to travel to the U.S. for up to 6 months in one stay to set up corporate operations. An IT professional may qualify for a B-1 in lieu of H-1 visa for purposes of setting up critical IT systems in the US to support operations.

 Documentation reflecting qualification is required, as is a prepared applicant. My partner, Teri Simmons (who wrote most of this post) is an expert in U.S. business immigration law and has advised many Irish/NI businesses on these issues. Reach out to her or me if you have any questions or need guidance.

 

The Second Thing You Should Do…

Mike Burke Formation Issues, Intellectual Property , , , , , , , , , ,

After taking the survey at http://agglaw.polldaddy.com/s/irelandnisurvey and subscribing to this blog (see left column)…

Register the IP you’ll use in the US, most likely your trademarks. Many Irish and Northern Irish companies mistakenly believe that their home jurisdiction trademark registrations will be effective in the US. Nope. Also, some will think that the Madrid Protocol causes their home jurisdiction approvals to be effective in the US.  Nope. The Madrid Protocol is useful in determining applicant priority, but doesn’t operate to extend a home jurisdiction registration.

I always encourage Irish and Northern Irish companies to inventory their IP that they intend to use in the US before they expand to the US. Part of that effort is to ensure that we’ve properly protected what needs to be protected, and part of it is to ensure that, to the extent needed, any intercompany agreements have the proper scope.

Logos, trade names, product names, etc., can be trademarked here. The US is not a first-to-file trademark registration jurisdiction (where the first to file may prevail even if they are not the first to use–China is, for example, a first-to-file jurisdiction). And, yes, the US does allow for common law trademarks that arise from usage. But the most effective way to protect the value of those marks–the value built in Ireland and Northern Ireland and leveraged in the US–is to register. A basic trademark registration can cost less than $2,500 (with no opposition or other weird developments), and that’s a small price to pay.

The reason I suggest that this is the second thing to do is timing–the USPTO takes a little while to review applications, and may have questions. This isn’t to suggest that you wait on US expansion until after you obtain appropriate registration–you shouldn’t–but you should have your registrations in motion (submitted) when you hit the US market.

The Survey Says?

Mike Burke About, Choice of Entity, Distribution Agreements, Formation Issues, Life Sciences, Smart Exporting , , , , , , , , ,

The good news is that we’re going to re-start our webinar series on US legal topics for Irish and Northern Irish businesses expanding to/operating in the US. But we need your help: we’re looking for feedback on the topics that might be of interest to an audience of Irish/Northern Irish businesses, their advisors, and other interested parties. The survey is at http://agglaw.polldaddy.com/s/irelandnisurvey

Please take a moment to give us some feedback, and please feel free to forward along to your colleagues and contacts. Thank you in advance for your help.