B-1 Business Visitor

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:

• Have a foreign residence with no intention of abandoning that residence

• Be visiting the United States for a limited duration. This means that you must have a specific activity planned during your stay.

• Intend to leave the United States at the end of that duration.

• Have a business-related reason for entering the U.S. This could include attending conferences or meetings, negotiating business deals, taking orders for products, or even leasing a location for a

• Have adequate financial support to travel to, vacation in, and depart from the United States.

• Not be able to earn any of your income from an entity in the U.S. Your salary must exclusively come from the foreign organization that employs you. 

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:

• The position is not deemed to be part of the regular complement of the crew. 
• A vessel may employ foreign nationals as part of its regular complement of the crew. 
• A vessel may employ foreign nationals as part of the complement of the crew if another statutory or regulatory exemption applies. 

OCSLA authorizes the Coast Guard to grant four classes of exemptions from the Manning requirements: 

•  A foreign flag, foreign owned unit or foreign flag, American owned unit may receive an exemption if the unit is under the control of foreign nationals.  Our attorneys can help you determine whether you meet the foreign ownership requirements. A flag country which discriminates against U.S. citizens or permanent residents may trigger denial of the exemption request.

• A foreign flag, American owned unit may obtain an exemption for the maritime crew if the unit's flag country had a national registry Manning requirement before September 18, 1978 requiring the flag country's nationals be aboard her flag units.

• Temporary exemptions are available if there are insufficient U.S. citiens or permanent residents who are qualified and able to work on the unit.

• The President may grant an exemption for a position aboard a unit if he determines that employment of U.S. citizens or permanent residents would not be consistent with the national interest (e.g. national emergency).  The U.S. Coast Guard can issue an exemption when the position is not part of the regular complement of the crew.

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:

• Be a national of a country which has a treaty of commerce and navigation with the U.S.

• Be engaged in substantial trade. “Substantial” is a question of frequency of items traded internationally The items can include goods, service, banking, insurance, transportation, storage, tourism, technology, new gathering, etc... There is no set monetary value.

• Have a history of trade between the U.S. and treaty country in which the trade between the U.S. and treaty country is over 50% of the trader’s international trade. 

The treaty trader employee must:

• Have the same nationality as the trader employer.

• Meet the legal definition of “employee."

• Either be a manager/executive or have special qualifications. A manager means the employee exercises control and bears responsibility for the company’s operation or major component. Special qualifications refers to essential skills necessary for the operation of the company. Special skills include expertise, high salary, and whether a person with similar skills is available in the U.S.

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:

•  The E-2 investor be a citizen of a country which has a treaty of trade or commerce with the U.S. 

(https://travel.state.gov/content/visas/en/fees/treaty.html) 

• The E-2 treaty investor must invest or be in the process of investing a substantial amount of capital in a bona fide business enterprise in the U.S.  

• The E-2 treaty investor be coming to the U.S. to develop and direct the investment enterprise.

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 employee must have the same nationality as the treaty investor.

• The E-2 employee be an employee under the laws of the state where the employee will be working.

• The E-2 employee must be an active executive or supervisor in the U.S. business enterprise or have special skills which are essential to the success of the business. 

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 degree of proven expertise in the area of operation.

• Whether other employees possess similar skills.

• A salary commensurate for the skill set.

• Whether other people in the U.S. possess similar skills. Simply knowing a foreign language relevant to the business operations is not enough.

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:

• The employer will pay all H-1B alien(s) who have similar experience and qualifications for the specific position set forth in the LCA at least the higher of either:

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. 

•  During the period of employment, the employment of the H-1B employee will not adversely affect the working conditions of workers similarly employed in the area of intended employment and that the H-1B’s employee’s working conditions will be similar to those offered to U.S. workers.

• On the date the LCA is signed and submitted, there was no strike, lockout, or work stoppage in the course of a labor dispute in the relevant occupation at the place of employment. If a strike occurs after submission of the LCA, the employer will notify DOL within three days.

• As of the LCA filing date, notice of the application must be posted or will be posted in two conspicuous locations at the  employer’s establishment. Alternatively, if  a collective bargaining agreement applies to the position, notice must be provided to the collective bargaining representative instead of posting at the place of business.

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:

• Certified LCA.

• Verification of the wage paid to the H-1B employee such as an offer letter, employment contract, or collective bargaining agreement.

• Full and clear explanation as to how the employer determined the wage.

• Proof of having satisfied any union notification requirements.

• If an employer is H-1B dependent and files as non-dependent, the employer must provide as explanation as to why the filing was non-dependent.

• If the employer is H-1B-dependent, the file must contain a  list of employees for whom exemption was claimed from the additional attestations (based on annual compensation or educational qualifications). A list is not required if all employees are exempt.

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: 

• The foreign national must have worked for the overseas company for at least 1 year during the 3 years prior to filing.

• The foreign national must have been in an executive or managerial position.

• The foreign national must be coming to the U.S. to work as an executive or manager. 

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:  

• Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.

• Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field.

• Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought.

• Original scientific, scholarly, or business-related contributions of major significance in the field.

• Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought.

• A high salary or other remuneration for services as evidenced by contracts or other reliable evidence.

• Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought.

• Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation. 

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:

• Nature of the events or activities.
• Beginning and ending dates.
• That the activities during the duration period are within the applicant’s field of extraordinary ability. 

The P visa is for persons coming to the U.S. to perform at an athletic event. The P applicant:

• Must have international recognition.

• Be a professional athlete.

• Be an athlete or coach, who is part of a team in the U.S., and is a member of a foreign league or association.

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:

•  Be a citizen of Canada or Mexico.

• Have a job offer from a U.S. company.

• Have the necessary education, licensure, or other qualifications for the profession based on regulations governing the particular profession.

• Attest that he or she is coming to work for a temporary period without immigrant intent.

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:                              

• Accountant: Baccalaureate, licenciatura degree, C.P.A., C.A., C.G.A., or C.M.A.
• Architect: Baccalaureate, licenciatura degree, or state or provincial licensure.
• Computer Systems Analyst: Baccalaureate or licenciatura degree, or post-secondary diploma or certificate and three years of experience.
• Disaster Relief Insurance Claims Adjuster: Baccalaureate or licenciatura degree and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims, or three years of experience in the field of claims adjustment and successful completion of training in the appropriate areas of insurance adjustment pertaining to disaster relief claims.
• Economist: Baccalaureate or licenciatura degree.
• Engineer: Baccalaureate or licenciatura degree, or state or provincial licensure.
• Forester: Baccalaureate or licenciatura degree, or state or provincial licensure.
• Graphic Designer: Baccalaureate or licenciatura degree, or post-secondary diploma or certificate and three years of experience.
• Hotel Manager: Baccalaureate or licenciatura degree in hotel management, or post-secondary diploma or certificate and three years of experience.
• Industrial Designer: Baccalaureate or licenciatura degree, or post-secondary diploma or certificate and three years of experience.
• Interior Designer: Baccalaureate or licenciatura degree, or post-secondary diploma or certificate and three years of experience.
• Land Surveyor: Baccalaureate or licenciatura degree, or state, provincial or federal licensure.
• Landscape Architect: Baccalaureate or licenciatura degree.
• Lawyer: (Including Notary in the province of Quebec) L.L.B., J.D., L.L.M., B.C.L., licenciatura degree (five years), or membership in a state or provincial bar.
• Librarian: M.L.S. or B.L.S. for which another baccalaureate or licenciatura degree was a prerequisite.
• Management Consultant: Baccalaureate degree, licenciatura degree, or five years of experience in consulting or a related field.
• Mathematician (including Statistician): Baccalaureate or licenciatura degree.
• Range Manager/Range Conservationist: Baccalaureate or licenciatura degree,
• Research Assistant (working in a post-secondary educational institution): Baccalaureate or licenciatura degree.
• Scientific Technician/Technologist: Must work in direct support of professionals in: chemistry, engineering, geology, geophysics, meteorology, physics, astronomy, agricultural sciences, biology or forestry; and must possess theoretical knowledge of the discipline, and must possess the ability to solve practical problems in the discipline, or the ability to apply principles of the discipline to basic or applied research.
• Social Worker: Baccalaureate or licenciatura degree.
• Sylviculturist: (including forestry specialist: Baccalaureate or licenciatura degree.
• Technical Publications Writer: Baccalaureate or licenciatura degree, or post-secondary diploma or certificate and three years of experience.
• Urban Planner (including Geographer): Baccalaureate or licenciatura degree.
• Vocational Counselor: Baccalaureate or licenciatura degree.

Medical Professions

• Dentist: D.D.S., D.M.D., Doctor en Odontologia, Doctor en Cirugia Dental, or state or provincial licensure.
• Dietitian: Baccalaureate or licenciatura degree, or state or provincial licensure.
• Medical Laboratory Technologist (Canada) or Medical Technologist (Mexico): Baccalaureate or licenciatura degree, or post-secondary diploma or certificate and three years of experience. Must be seeking entry to perform chemical, biological, hematological, immunological, microscopic , and bacteriological tests, procedures, experiments, and analysis in laboratories for diagnosis, treatment, or prevention of disease.
• Nutritionist: Baccalaureate or licenciatura degree.
• Occupational Therapist: Baccalaureate or licenciatura degree, or state or provincial licensure.
• Pharmacist: Baccalaureate or licenciatura degree, or state or provincial licensure.
• Physician (teaching or research only): M.D., Doctor en Medicina, or state or provincial licensure.
• Physio Therapist or Physical Therapist: Baccalaureate degree, licenciatura degree, or state or provincial licensure.
• Psychologist: Licenciatura degree or state or provincial licensure.
• Recreational Therapist: Baccalaureate or licenciatura degree.
• Registered Nurse: Licenciatura degree or state or provincial licensure.
• Veterinarian: D.V.M., D.M.V., Doctor en Veterinaria, or state or provincial licensure.

Science Professions

• Agriculturist (including Agronomist): Baccalaureate or licenciatura degree.
• Animal Breeder: Baccalaureate or licenciatura degree.
• Animal Scientist: Baccalaureate or licenciatura degree.
• Apiculturist: Baccalaureate or licenciatura degree.
• Astronomer: Baccalaureate or licenciatura degree.
• Biochemist: Baccalaureate or licenciatura degree.
• Biologist: Baccalaureate or licenciatura degree.
• Chemist: Baccalaureate or licenciatura degree.
• Dairy Scientist: Baccalaureate or licenciatura degree.
• Entomologist: Baccalaureate or licenciatura degree.
• Epidemiologist: Baccalaureate or licenciatura degree.
• Geneticist: Baccalaureate or licenciatura degree.
• Geochemist: Baccalaureate or licenciatura degree.
• Geologist: Baccalaureate or licenciatura degree.
• Geophysicist (including Oceanographer in Mexico): Baccalaureate or licenciatura degree.
• Horticulturist: Baccalaureate or licenciatura degree.
• Meteorologist: Baccalaureate or licenciatura degree.
• Pharmacologist: Baccalaureate or licenciatura degree.
• Physicist (including Oceanographer in Canada): Baccalaureate or licenciatura degree.
• Plant Breeder: Baccalaureate or licenciatura degree.
• Poultry Scientist: Baccalaureate or licenciatura degree.
• Soil Scientist: Baccalaureate or licenciatura degree.
• Zoologist: Baccalaureate or licenciatura degree
• Teacher: Requires baccalaureate or licenciatura degree for teaching college, seminar or university

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: 

• job fairs
•  employer's website
• job search website other than employer's
• on-campus recruiting
• trade or professional organizations
• private employment firms
• an employee referral program, if it includes identifiable incentives
• a notice of the job opening at a campus placement office, if the job requires a degree, but no experience
• local and ethnic newspapers, to the extent they are appropriate for the job opportunity
• radio and television advertisements. 

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.