A B-1 visitor visa is a temporary, nonimmigrant visa that allows you to visit the United States for purposes of conducting business. Examples include coming to the U.S. to take steps towards creating a business necessary for an E, L, or EB5. A B-1 also allows a person working overseas to work temporarily in the U.S office of the overseas company as long as the person is paid overseas. The requirements are as follows:
Manning Requirement: the Outer Continental Shelf Lands Act Amendments of 1978 ("OSLA") requires persons working on the OCS to be U.S. citizens or permanent residents unless you obtain a waiver. The U.S. Coast Guard can waive the requirement in three instances:
OCSLA authorizes the Coast Guard to grant four classes of exemptions from the Manning requirements:
The E-1 visa allows a foreign national to enter the U.S. to engage in international trade on his own behalf or on behalf of a qualifying organization. The foreign national must be a citizen of a country which has a treaty of trade with the U.S. A person inside the U.S. can apply for change of status as long as he entered legally with a visa and has a valid I-94. A person outside the U.S. will have to apply at a U.S. consulate.
Treaty Trader Requirements:
The treaty trader employee must:
The E2 is a visa which allows an individual person or a business to buy or open a new business in the U.S. To understand the E-2 treaty investor process, one must differentiate two concepts: (1) the treaty investor and (2) the employee coming to the U.S. to oversee the investment. The investor and the employee are often the same person but can also be different. The treaty investor is the person or business making the investment, and the employee is the person the investor sends to the U.S. to oversee and manage the investment.
The E-2 treaty investor must satisfy three requirements:
Development and direction means the E-2 treaty investor owns and/or controls at least 50% of the business.
A “substantial amount of capital” means a realistic investment for the business enterprise.
The E-2 treaty investment is not the same as the EB5 investment. The EB5 Immigrant Investor Program is a method of obtaining permanent residence (greencard) in the U.S.
The EB-5 Immigrant Investor Program currently requires a minimum investment of $500,000 or $1,000,000 depending on the unemployment levels in the areas of investment.
The E-2 Treaty Investor Visa does not have a minimum investment level The E-2 requires an investment which is substantial to the cost of buying or opening the business enterprise, which is sufficient to ensure the success of the business enterprise, and sufficient to ensure the treaty investor is committed to the business. Lastly, the business must be a real operating enterprise being operated for the purpose of providing goods or service for a profit.
The treaty employee has three requirements to qualify for an E-2 visa:
The E-2 executive or supervisor must have control over the business enterprise or, at least, a major component of the treaty investor business. An E-2 employee with special qualifications must be able to show that he or she has unique skills which are essential for operating the business.
At a minimum, a special qualification E-2 employee must show:
The H-1B allows a foreign national to enter the U.S. to work temporarily in what USCIS calls a “specialty occupation.”
A specialty occupation requires a bachelor’s degree or higher or a combination of some college or university education and work experience. If licensure is required, the foreign national must have the license. This visa is also available to fashion models who can show distinguished merit and ability.
The current quota is 65,000 per year with an additional 20,000 for graduates of U.S. graduate school programs (master’s or higher).
The sponsoring employer must obtain a Labor Condition Application (LCA) from the Department of Labor. The LCA indicates the minimum salary which the employer must pay per year or per hour. An H-1B can be for part-time work.
When an employer files an LCA with the DOL, the employer guarantees the following:
a. The actual wage level the employer pays to all employees with equivalent experience and qualifications for the job being offered; or
b. The prevailing wage level for that specific occupational classification by all employers in the geographic area of intended employment.
H-1B employers must maintain a public access file regarding the H-1B worker from the start of employment until a year after the employment ends. The public access file must contain the following:
H-1B status can last anywhere from 1-9 years. The standard time frame is from 1-6 years.
The L1A Multinational Executive or Manager Intracompany Transferee is one of many special US visa types in the nonimmigrant classification category which enables a U.S. employer to transfer an executive or manager from a qualified foreign office to a new or existing U.S. office.
The L-1 visa requirements are that the intracompany transferee be a qualified, full-time executive and manager actively involved in the day-to-day management while working within multinational companies. The company in the U.S. can be either an established company or a new company which the foreign office will open.
Our law firm assists companies operating domestically and internationally to bring their foreign affiliate executives and managers to the U.S. For international companies, large or small, who wish to establish a business presence in the U.S., we assist with incorporating the company, drafting your business plan, and providing the tax advice you need to be compliant with both immigration and tax law.
The L1A classification allows a foreign company without a current affiliated U.S. office to send an executive or manager to the U.S. with the specific purpose of establishing a business operating in the U.S. We use our knowledge of immigration regulations combined with 20 years of real world practical experience to guide you in gathering the documentation the consular and immigration officers really want to see. We are experienced in new office verification requirements, verifying overseas business activity, and proving either active U.S. business operations or adequate funding for a start-up company.
The L1A visa is issued for an initial one to three year period and can be extended up to a maximum of seven years. The L1 processing time depends on whether the petition is submitted with Form I-907, Request for Premium Processing. Standard L-1 processing time is several months. Premium processing triggers an approval or a request for evidence within 15 business days. The L1 visa duration depends on reciprocity and whether the U.S. sponsor is a new office or already existing business. The intracompany transferee should supervise professional staff and have the autonomy to make decisions without oversight. The foreign national may divide work between the U.S. and abroad. Currently, there is no quota on the number of L1 nonimmigrants that may be admitted into the U.S. each year.
The L1A has three requirements:
Our lawyers will help you show how the foreign employer is a qualified foreign office related to the U.S. company, either as a parent company, subsidiary, affiliate, branch or division. The overseas company and the U.S. company do not need to be engaged in the same type of business. The issues are whether the same persons or entities own both the international and domestic company, whether the incoming executive or manager will be in a managerial or executive position, and whether there is adequate proof of an active foreign business and either an active domestic business or sufficient funding to start the U.S. based business. For multinational companies, their foreign operations must remain affiliated and doing business throughout the entire visa period.
The L1A visa can lead to a greencard as long as the foreign and domestic companies remain in business, the foreign national actually manages a set of subordinate full-time employees, and the domestic company reaches the financial point of being able to pay for itself without support from the foreign national company.
Overseas intracompany transferees will have to obtain a US visa appointment. Persons in the U.S., who are filing their L-1 application as a change of status request, will receive their new I-94 in the mail.
The L-1B visa is for intra-company transferees with specialized knowledge. Similar to an L-1A, a multinational company is able to transfer a specialized employee from another country to work at at one of the multinational company's U.S. offices.
The U.S. office must be an affiliate, branch, or subsidiary. The U.S. office must be more than a mere agent of the overseas company. The U.S. office must be providing actual services or products in the U.S.
Specialized knowledge means that the employee has a unique understanding about the employer's business, equipment, processes, products or services.
The maximum period of stay is 5 years. The process of obtaining a greencard typically involves applying for a National Interest Waiver.
The O-1 is for persons who can demonstrate extraordinary ability in the arts, athletics, business, education, sciences, or in film or television.
The O-1 applicant must show receipt of a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:
Additionally, the applicant must obtain written advisory opinions from an appropriate peer group, labor organization, or someone with expertise in the profession. USCIS will waive the consultation requirement if the applicant demonstrates there is no corresponding peer group or organization to write a letter of recommendation.
The applicant must provide a copy of a signed, written contract detailing the terms of employment. An oral contract is permissible as long as there is a documentary trail of emails or other written correspondence which highlights the same areas as a standard written employment contract.
Lastly, the applicant must provide an itinerary listing the following:
The P visa is for persons coming to the U.S. to perform at an athletic event. The P applicant:
The Q visa is for persons who are coming to the U.S. to provide exposure to a U.S. audience of an aspect of the applicant's home country. The Q applicant must be coming to engage in employment, practical training, or in a position to share something regarding the culture, history, or traditions from the applicant's home country.
The North American Free Trade Agreement allows citizens of Canada and Mexico, in a limited number of job categories, to enter the U.S. for employment.
The requirements are that the applicant must:
Canadian nationals can apply for a TN visa directly at the port of entry, whereas Mexican citizens will have to schedule a consular interview and obtain a TN visa prior to entry.
Persons in TN status can apply for extensions inside the U.S. through USCIS. The duration of stay is from 1-3 years. The Customs and Border Protection (CBP) officer or USCIS immigration officer makes the determination as to duration. Spouses and children can also enter the U.S. for the duration of the primary visa holder’s stay but will not be permitted to work.
TN visas do not allow for dual intent unlike H, E, and L visas. A TN is a nonimmigrant visa. Applying for a greencard is possible but requires attention to timing.
LIST OF TN PROFESSIONS:
The process of PERM or Labor Certification allows a U.S based employer to sponsor a foreign national for a greencard based on a job offer. The foreign national must be legally inside the U.S. or outside the U.S. in order to receive a greencard at the end of the process. The labor certification process involves three separate steps.
The first step of obtaining a greencard through foreign labor certification is to obtain a job offer is to prove to the Department of Labor that the employer looked for a qualified U.S. worker in the local labor market but was unable to find any able, willing, available, and qualified U.S. workers for the job which the employer wants to offer to the foreign national. The PERM labor certification processing time at step one is approximately six to eight months.
The labor certification application process involves placing advertisements in the Sunday edition of local newspaper and a job listing for 30 days at the state workforce agency. The employer must also place a posting notice for at least 10 consecutive business days. The recruitment period must run for more than 30 days but fewer than 180 prior to filing with the Department of Labor. Viles Law Firm provides professional guidance with drafting ads which are in conformity with recruitment regulations.
The employer must also obtain a prevailing wage from the DOL. The DOL determines a wage range based on the duties and location of the position. The employer must save the recruitment materials for 5 years.
Professional jobs require the employer utilize three of the following additional recruitment steps:
Step two, commonly known as the I-140, begins once the DOL certifies the alien labor certification application and issues a labor certificate, the employer then approaches USCIS to prove both that the foreign national is qualified for the job offered and that the employer has the ability to pay the wage. USCIS uses Form I-140 to obtain the information the immigration officer needs to make a decision. The I-140 processing time depends on whether you opt for premium processing or regular processing. Premium Processing with Form I-907 allows 15 service resulting in either a USCIS Approval Notice or a Request for Evidence (RFE). The I-140 approval means you can proceed to the final step of the actual greencard application.
The third step in the employment based greencard process is applying for a greencard. The foreign national beneficiary legally present in the U.S. may file for adjustment of status using Form I-485. The I-485 processing time varies, and the good news is that not everyone has to go for an adjustment interview. The I-485 form is lengthy with a series of questions which often require help from an immigration lawyer. When you file your I 485, you can also file the I-765 for your work permit.
If you are outside the U.S., he or she must proceed with consular processing which involves submitting documentation to the National Visa Center and undergoing an immigrant visa interview. Consular processing time varies from country to country. However, greencard consular processing is sometimes quicker than waiting for USCIS.