Employment-Based Immigration

Several employment-based visas are available as a way to immigrate to the United States.  These include the popular H-1B visa and the E investor visas.  The H-1B is available for under section 101(a)(15)(H) of the Immigration and Nationality Act.  The section permits U.S. employers to temporarily employ foreign workers in “specialty occupations.”  If you are a foreign worker in H-1B status and you quit or are fired or laid off from the “sponsoring employer,” or sponsor, you can apply for a change of status to another non-immigrant status, find another employer (subject to obtaining a visa or changing your status), or you must leave the US.

A “specialty occupation” requires theoretical and practical application of a body of highly specialized knowledge in a field including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts.  To obtain an H-1B, you must have a bachelor’s degree or its equivalent as a minimum (except for fashion models, who must be “of distinguished merit and ability”.) Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field.  H-1B work-authorization is limited to employment by the sponsoring employer.  The status can be difficult to attain, because there is an annual quota of H-1B visas allotted and the process for applying for one is quite complex.

Length of Visa:
Initial stay for H-1B professional is three years; extension of stay in increment of up to 3 years. Total stay normally limited to 6 years.

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L-1 COMPANY TRANSFER VISAS

(Information gathered from USCIS website: http://uscis.gov/graphics/services/visas.htm#L)

An alien who within the preceding three years has been employed abroad for one continuous year by a qualifying organization may be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or executive capacity, or in a position requiring specialized knowledge. An alien transferred to the United States under this nonimmigrant classification is referred to as an intracompany transferee and the organization, which seeks the classification of an alien as an intracompany transferee is referred to as the petitioner. Certain petitioners seeking the classification of aliens as intracompany transferees may file blanket petitions.

L-1A: Executive, Managerial

Executive Capacity:

1. Directs the management of the organization or a major component or function of the organization;
2. Establishes the goals and policies of the organization, component, or function;
3. Exercises wide latitude in discretionary decision-making; and
4. Receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.

Managerial Capacity:

1. Manages the organization, or a department, subdivision, function, or component of the organization;
2. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;
3. Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and
4. Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor”s supervisory duties unless the employees supervised are professional.

Stay:
Initial Stay is up to 3 years when coming to existing office; coming to new office-up to 1 year; extension of stay in increments of up to 2 years. Total stay limited to 7 years.

L-1B: Specialized knowledge
Specialized knowledge means special knowledge possessed by an individual of the petitioning organization”s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization”s processes and procedures.

Stay:
Initial stay is up to 3 years when coming to existing office; coming to new office-up to 1 year; extension of stay, one increment of up to 2 years. Total stay limited to 5 years.

L-2: Spouse or Child of L-1
The spouse and unmarried minor children of the beneficiary are entitled to L nonimmigrant classification, subject to the same period of admission and limits as the beneficiary, if the spouse and unmarried minor children are accompanying or following to join the beneficiary in the United States. Neither the spouse nor any child may accept employment unless he or she has been granted employment authorization.

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TN NAFTA Visas

Treaty National Visas are available for Canadian and Mexican nationals in accordance with the North America Free Trade Agreement (NAFTA). A TN is similar to H-1B category but there is no specific maximum time limit on total period of admission. TN visas are available for one year at a time for professionals with a minimum of a Bachelor’s degree of foreign equivalent. Unlike the H-1 category experience generally cannot be used to obtain equivalence to bachelor’s degree. An important exception is the management consultant category where five years experience in management consulting or a related field. NAFTA sets forth the requirements for designated professionals. Licenses must be obtained when required to practice the profession.

Self-Employment is not permissible. There is no dual intent doctrine so that TN must show that they are not intending immigrant even though there is no time limit on the number of years for renewal.

On January 1 2004 the Department of Homeland Security published an interim rule which eliminated the need for Mexican TN professionals to file a visa petition, with an appropriate labor condition. The annual quota limiting the number of TN visas for Mexican Nationals was also eliminated.

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J-1 Practical Training Programs

J-1 Exchange Visitor Visa
J-1 visas are available for teaching, studying, business or professional training, research or special skills. J-1 programs are either funded by a government program, non-government organization private sponsor, or an educational fellowship or company. Length of period is up to 18 months. It may be 36 months for post-doctoral training less any period previously used for academic training. There is also a 30-day grace period.

a. Practical Training Programs:
J-1 is available to enhance skills in a specialty or non-specialty program or to improve knowledge of US technologies in a specified commercial field. J-1 training cannot be used as an employment substitute or just to gain experience. It must be structured on-the-job training program.

b. Will include Structural Internship
Applications are made to a designated organization approved by the Department of State.

c. Professional Researchers:
J-1 status is available for teaching, consulting or serving at a post-secondary accredited institution. Researcher can include corporate research institutes, museums and libraries. There is an unapproved proposal to extend the period for professors or researchers to a 5-year period. The present maximum is 3 years with possible 6-month extension.

d. Specialists
J-1 is also available to experts in a specialized field who can consult or observe or demonstrate special skills. The period of stay is limited to one year.

e. International Visitors
Used by the Department of State for People to People cultural exchange programs.

f. Alien Physicians
J-1 status is used for special programs for graduates of foreign medical schools. J-1 visas are also available for camp counselors and au pairs.

g. Two-Year Home Country Requirement
Certain J-1 visitors are required to return to their home country before changing status to H or L temporary worker categories, and also before adjusting status to permanent resident without having to return home for this period. The restriction applies to J-1 and J-2, and to certain government funded programs, which are a “skills list”. The two years need not be continuous. The 2-year requirement may be waived, but only for exceptional hardship to a US citizen or permanent resident spouse or child, or for fear of possible persecussion. Waivers may also be granted by obtaining a “no objection” letter from the home country government or by recommendation from a Federal government agency or state agency for certain J-1 physicians.

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O Entertainer and Athlete Visas

An O-1A visa is available for persons who have demonstrated: “extraordinary ability in the sciences, arts, education business or athletics which has been demonstrated by sustained national or international acclaim”.

An O-1 B visa is for motion picture or TV production who have demonstrated — “record of extraordinary achievement” — “through extensive documentation”.

O-2 visa are available for persons accompanying and assisting an O-1 athlete or artist for specific events or performances. It is necessary to show that they are an essential part of the event and have critical skills not generally available and which cannot be performed by other individuals. An O-2 must generally show a longstanding work relationship has taken or will take place in and outside the US.

O-1 need not show proof of foreign residence while an O-2 must show a foreign residence, which they have no intent of abandoning

a. Extraordinary Ability and Extraordinary Achievement
There are different standards for each category of endeavor.

b. Science, Education, Business and Athletics
These require “a level of expertise indicating the person is one of the small percentage who have risen to the very top of the field of endeavor”. This is proved by receipt of a major internationally recognized prize ( e.g. A Nobel Prize) or a minimum of 3 of the following:

1. National or internationally recognized awards
2. Membership in an organization that require outstanding achievement
3. Published materials in professional or major trade publications
4. Judgment of the work of others in the field
5. Original scientific or scholarly work or major importance in the field
6. Authoring academic or scholarly work
7. Employment in an organization, which has a distinguished reputation
8. Received in the past and continuing to command a high salary

c. Arts
This means “Distinction” — “a high level of achievement in the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered” –.

An artist needs to show he or she is “prominent” and not necessarily “top” of his or her field. Distinction in the arts by nomination of a significant international award (e.g. Academy Award or Grammy) or by proof a minimum of any of the following:

1. lead in a production with a distinguished reputation
2. critical reviews in publications such as news or trade journals
3. lead for an organization with a distinguished reputation
4. record of major commercial or critically acclaimed successes
5. significant recognition form organizations, critics, government agencies or recognized experts in the field
6. received in the past and continuing to command a high salary

d. Motion Picture or TV industry
This requires proof of extraordinary achievement, which means “a very high level of accomplishment in the motion picture or TV industry, evidenced by a degree of skill and recognition substantially above that ordinarily encountered”. The criteria are the same for the arts, but the Government will require a higher standard when evaluating evidence in order to show extraordinary achievement.

e. Advisory Opinions
Motion Picture/TV
These must have a written advisory opinion from a Union and a management group describing achievements in the particular field.

All other O-1s must obtain consultation from the appropriate Union if there is one from the field. Optional non-union expert opinions may be used. O-2 must also have Union and management opinion as to the expertise and necessity for the position.

f. Length of stay
The initial term of admission for O visa is three years. This may be extended for one-year annual increments. The major advantage of O-1 visa is that it can be extended without maximum time limit (unlike L and H categories), without need for new consultation, provided the basis for extension can be justified.

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INVESTOR VISAS

NON-IMMIGRANT INVESTOR VISA

E-2 Treaty Investor

1. Available only to individuals who are nationals of countries with E-2 investor treaties with the U.S.
2. Corporations (except for publicly traded companies) must have majority of shares owned by individuals who are treaty nationals.
3. E-2 visa available to investor owner to direct the enterprise, essential managers and certain key employees.
4. Processing for E visas is at Embassy or Consulate and does not require prior petition approval by BCIS; it is also possible to change from another non-immigrant category by applying to BCIS in the U.S.
5. Visa issued for up to five years—admission is normally for one or two years.
6. Investment must be substantial. Substantial not defined and there is no specified minimum amount. The amount should be proportionate to the type of business and can be determined by the amount of capital reasonably required to establish similar business.
7. Some recourse financing may count toward amount of investment. However at least 50% of the investment must be in cash or though loans which are not secured by the investment.
8. There are no specific restrictions on the type of investment; for example: restaurants; apartment buildings; real estate management and development; software development; import /export; retail stores; franchises; entertainment production and development; health care; equipment lease; auto sales and any other legal business or service can qualify.

E-1 Treaty Trader

1. Similar requirements to E-2 Treaty Investor.
2. Business must be engaged in substantial trade between United States and E-1 Treaty Country
3. Substantial Trade not defined; there should be multiple transactions or substantial volume appropriate to nature of trade.
4. No minimum investment amount is required for the E-1 visa if sufficient qualifying international trade

A. Advantages of E-1 and E-2 Visas

1. Flexible- May be renewed indefinitely.
2. Available to family employees.
3. In certain cases investor may maintain non-resident status for U.S income tax purposes
4. If US treaty enterprise is established as subsidiary or affiliate of Treaty country enterprise then executive or managerial employees may be able to adjust status to permanent residence.

B. Limitations of E-1 and E-2 visas

1. Only available for certain countries
2. Not permanent visa; it must be renewed and does not automatically lead to U.S. citizenship.
3. Employment is restricted to business (as) conducted by Treaty enterprise.
4. Visa will terminate if business or employment terminates.
5. Treaty Traders and Investors must have majority ownership or control
6. The investment or trade cannot be marginal. Investor may need to show other assets or income sufficient to provide for his or her living expenses.

E-2 and E-1Treaty countries
View Treaty Countries (link opens in a new window.)

PERMANENT RESIDENT INVESTOR VISAS

Employment Creation Visa (EB5)

1. Creation of a new enterprise or expansion of existing or investment in distressed business as part of reorganization.
2. Must provide full time employment for ten or more U.S. citizens or residents.
3. Minimum investment of $1,000,000 may be $500,000 for targeted employment areas.
4. Investor Visa pilot program allows $500,000 investment in Employment Creation Center.

A. Advantages

1. Recent changes to investor visa law allow passive investors to obtain green card through qualifying investment.
2. After conditional status is removed investment may be sold or employment terminated.
3. Permanent resident status allows eligibility for U.S. citizenship after 5 years
4. Available to all nationalities (unlike E-2 treaty investor visa)
5. Investor can be part of syndicate or partnership and need not have majority ownership or control.(E-2 requires majority control by Treaty investor)Can be used to start new business or reorganize existing business

B. Limitations

1. Large amount of investment is required.
2. Minimum employment requirements limit the visa to certain types of businesses which are more labor intensive
3. Only conditional visa issued initially. Applicant must demonstrate employment and investment amount after two years.
4. Processing delays in obtaining Permanent resident visas may be in excess of one year during which time there is no legal status unless the investor qualifies for an non-immigrant visa

III. Multinational Executives and Managers –EB1-Priority Workers

1. Must have been employed one year in three years preceding transfer to U.S. business
2. Employment in U.S. by an affiliate or subsidiary.
3. Employment must be managerial or executive capacity.
4. U.S. company must be existing business.

Advantages

1. Available to investor employees who were previously employed in a managerial or executive capacity for an Overseas affiliate .
2. Size of enterprise or amount of investment not presently specified.
3. No employment creation requirement.
4. No labor certification is required.
5. Large number of visas should speed up processing time.
6. An investor /employee can work for up to 7 years in L-1A status as executive or manager and then convert to permanent residence

C. Limitations

1. May not be used for start-up business.
2. U.S. business must remain affiliated with non-U.S. business.
3. Investor employee cannot make direct investment (like E-2). U S organization must maintain Overseas business affiliation until after residence is obtained.

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E-1 Treaty Traders

E TREATY/TRADER VISA*

An alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national, and the spouse and children of any such alien if accompanying or following to join him.

a. E-1: Treaty Trader, spouse and children
Solely to carry on substantial trade, including trade in services or trade in technology, which is international in scope, either on the alien”s behalf or as an employee of a foreign person or organization engaged in trade principally between the United States and the treaty country of which the alien is a national, taking into consideration any conditions in the country of which the alien is a national which may affect the alien”s ability to carry on such substantial trade. There must be intention to depart the United States upon the expiration or termination of treaty trader (E-1) status.

• Extracted from BCIS website: http://uscis.gov/graphics/services/visas.htm#E

b. E-2: Treaty Investor, spouse and children
Solely to develop and direct the operations in which the investor has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living. The investor must intend to depart the United States upon the expiration or termination of treaty investor (E-2) status.

c. Stay:
Initial stay for E-1 and E-2 visas is two years; up to 2 years per extension. No maximum number of extensions, with some exceptions.