San Diego Work Investment Visa Lawyer

E-1
Visas

The United States
has entered into treaties with several countries and established
the E-1 visa to help citizens of those countries engage in
international trading activities.

If someone
is a businessperson from one of the listed countries, and
plans to either engage in substantial trade with the U.S.
or work for an enterprise that does, then an E-1 visa may
be appropriate. In fact, it may serve the visa holder well
for a number of years, as there is no limit on the number
of E-1 visas issued every year, and the E-1 can be renewed
indefinitely.

Key
Features of E-1 Visa
• The visa holder can work legally in the U.S. for a
U.S. company if more than 50% of its business is with the
person’s home country, and the home country has entered
a treaty with the United States.
• While in the U.S., the person is restricted to working
only for the U.S. employer or self-owned business that acted
as the visa sponsor.
• Initial visas may last for up to five years, with
unlimited extensions. The length of the visa depends upon
the visa "reciprocity" agreement between the U.S.
and the foreign country and upon the viability of the business.

• Each time E visa holders (workers or family members)
enter the U.S., they receive a period of stay of up to two
years. They also may extend their stay while remaining in
the U.S.

What Are the Eligibility Criteria for an E-1 Visa?

To
qualify for a visa in category E-1, the person must:
• be from a qualifying country;
• work for a qualifying business;
• be either a 50% (or greater) owner or key employee
of that business, and
• be able to show that most of the company’s trade
is with the United States.

E-2
Visas

This type of Visa
allows certain foreign national investors and their employees
to obtain immigration status in the United States. The status
is valid for two years, and can be extended indefinitely.
The E-2 Visa holder’s spouse and children under the
age of 21 are eligible to receive derivative E-2 visa status.

What
Are the Requirements for a company and individual to be eligible
for an E-2 visa?

• A qualifying
treaty must exist between the United States and the applicant’s
Country;
• Majority ownership or control of the investing company
must be held by nationals of a qualifying Country; and
• Each employee or principal of the company who seeks
E status must possess citizenship in a qualifying country.

What
are the E-2 Visa Qualifying Countries?

Argentina, Armenia,
Australia, Austria, Bangladesh, Belarus, Belgium, Bosnia-Herzegovina,
Bulgaria Cameroon, Canada, China, Colombia, Congo, Costa Rica,
The Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland,
France, Georgia, Germany, Grenada, Honduras, Iran, Ireland,
Italy, Jamaica, Japan, Kazakhstan, Korea, Kyrgyzstan, Latvia,
Liberia, Luxembourg, Mexico, Morocco, Moldovia, Mongolia,
Netherlands, Norway, Oman, Pakistan, Panama, Philippines,
Poland, Romania, Senegal, The Slovak Republic, Spain, Sri
Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad
and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and
Uzbekistan. This list is subject to change.

Who
Can Obtain the E-2 Visa?

A qualifying company
can obtain E-2 visa status for certain investors and employees.
Qualifying investors must be coming to the U.S. to direct
or develop the business. Additionally, the investor must demonstrate
either owning 50% of the business, or having another means
of operational control over the business.
Employees of the company are also eligible for E-2 status
if the employee is coming to act in an executive or supervisory
position, or has essential skills to the company. All E-2
visa applicants must have the same nationality as the qualifying
company.

Can
the Family of an E-2 Visa Holder Receive a Visa?

The E-2 investor
can provide immigration status to his or her spouse and unmarried
children under the age of 21. The spouse of the E-2 visa holder
is eligible to obtain work authorization, but cannot work
until he or she receives work authorization from USCIS. The
Unmarried children are not eligible to work, but can attend
school.

What
are the E-2 Visa Investment Requirements?

The investment
must be made in bona fide commercial or entrepreneurial undertaking.
The investment must be in an enterprise that produces a service
or commodity for profit and must be “doing business”
in the United States.

The investment
must be substantial. There is no set monetary floor as to
how much capital must be invested. Instead, the investment
must be enough to ensure to a reasonable extent that the business
invested in is not speculative, but is, or soon will be, a
successful enterprise as a result of sound business and financial
judgment. This is perhaps the most important concept for small
businesses.

L-1 Visas

The L-1A
intra-company transferee classification applies to qualified
executives and managers within multinational companies. These
individuals can be transferred from their foreign employer
to work for up to seven years in the United States for an
appropriately affiliated U.S. company. The company must continue
to operate as a multinational company for the duration of
the employee’s L1A status.

Classification
as executive or managerial is appropriate for employees who
are primarily responsible for directing management or managing
an organization, department, subdivision, or component of
the company. It is also possible to qualify by demonstrating
that the employee has supervisory responsibilities over professional
or managerial employees or manages an essential function within
the organization. This classification is not appropriate for
low-level managers.

There are no annual
limitations on the number of L1As that can be approved, and
there are no specific wage requirements for L1A employees.

What
Are The Requirements for L-1A Visa?

• Transferred employee must have been employed by foreign
affiliate for at least one continuous year within the three
years prior to coming to the U.S.;
• The prior employment must have been either in an executive,
managerial, or specialized knowledge capacity;
• Within the L1A category, employee must not be low-level
manger. Employee may qualify by demonstrating employment level
within the company structure, and establishing higher level
supervisory or managerial responsibilities.)
• Employers must obtain approved petition from the USCIS
for each desired employee, unless the employer has a blanket
L-1 petition approval.

H-1B Work Visas

The H-1B visa is
a nonimmigrant work visa used by aliens who will be employed
temporarily in a specialty occupation. The H-1 visa may be
used to bring a worker to the United States if the employee
will work in a professional position. Specialty occupation
is defined as an occupation that requires highly specialized
knowledge and at least a Bachelor’s Degree in a related
field. In certain cases, work experience may be accepted in
lieu of a Bachelor’s Degree.

Specialty occupation
includes accounting, architecture, business specialties, engineering,
education, information technology, law, mathematics, medicine
and health, physical sciences, social sciences, theology,
and arts. Other professions may also qualify as specialty
occupations.

The H1B work visa
requires a sponsoring US employer. The sponsor must file a
labor condition application with the Department of Labor attesting
to several items, including payment of prevailing wages for
the position, and the working conditions offered. The H1B
employer must then file an I-129 petition with USCIS. Based
on the USCIS petition approval, the alien may apply for an
H1B visa stamp at an American Embassy. An H1B visa stamp allows
an alien holding that status to travel abroad and reenter
the US during the validity period of the visa and approved
petition.

An alien
may be admitted into the US in H1B work visa status initially
for up to three years with possible extension for three more
years. After six years in H1B status, an alien must remain
outside the United States for one year before another H1B
petition can be approved. H1B aliens may only work for the
petitioning US employer and only in the H1B activities described
in the petition.

An H1B alien can
be the beneficiary of an immigrant visa petition, apply for
adjustment of status, or take other steps toward Lawful Permanent
Resident (LPR) status without affecting the H1B status.

H1B
Transfer
An alien previously granted H-1B status may transfer to a
new H1-B job provided that the alien has not accrued unlawful
presence in the US. The alien could begin working for the
new H-1B employer as soon as the H-1B transfer is filed with
USCIS. H-1B transfers are not subject to the annual quota.

TN
Visas

TN Visa
(Trade NAFTA) is a special non-immigration status unique to
citizens of Canada and Mexico. TN visas are granted for a
period up to three (3) years. Spouse and dependent children
of a TN professional can be admitted into the United States
in the TD status.

TN visa
and TN status does not include the doctrine of dual intent.
Should Canadians or Mexicans on TN status desire to pursue
the green card they could switch to the H-1B visa before applying
for the Green Card.

Canadians
Canadian citizens applying for the TN-1 Visa must provide
the following information at a U.S. port of entry:
• An official request for TN status;
• Copies of all relevant college degrees and employment
records. This data should prove the applicant is sufficiently
qualified for the proposed position;
• An offer of employment letter from the sponsoring
employer detailing employment for not more than three years;
and
Processing fee.

If employment with a single employer is desired for more than
three years, it may be renewed by returning to the border
and, in effect, presenting a new application. Changing employers
will require the Canadian to return to the
border and start from scratch with a new application.

Mexicans
The procedures for Mexican citizens applying for TN status
are a bit more complex than for Canadians. A Mexican citizen
must first obtain a TN-2 visa at a US consulate in Mexico.
Once the visa stamp is obtained in the Mexican citizen’s
passport, they may enter the US in TN status and are admitted
into the US in the TN-2 status.

J-1 Visas (Exchange Visitors)

The J1
visa for exchange visitors is designed to promote the interchange
of persons, knowledge, and skills in the fields of arts, business,
education, and sciences. Participants include trainees obtaining
on-the-job training with businesses, institutions, and agencies;
professional trainees in the medical and allied fields; students
at all academic levels; teachers of primary, secondary, and
specialized schools; professors coming to teach or do research
at institutions of higher learning; research scholars; and
international visitors coming for the purpose of travel, observation,
consultation, research, training, sharing, or demonstrating
specialized knowledge or skills, or participating in organized
people-to-people programs.

Nonimmigrant
Intent

J1 visa
applicants must demonstrate to the consular officer that they
have binding ties to a residence in a foreign country which
they have no intention of abandoning, and that they are coming
to the United States for a temporary period.

Employment

Employment
while in J1 exchange visitor status depends upon the terms
of the program. Participants in programs which provide for
on-the-job training, teaching, research, or other activities,
which involve paid employment may accept such employment.
Participants in programs which do not involve work may not
accept outside employment.

J1
Waiver/Foreign Residency Requirement

Certain
J1 exchange visitors who participate in programs which are
financed by an agency of the U.S. Government or by the exchange
visitor’s government, or who are nationals or residents of
a country which has been designated by the Exchange Visitor
Program as requiring the skills of the exchange visitor, must
return to their country of nationality or last residence after
completing their program in the United States, and reside
there physically for two years before they may become eligible
to apply for an immigrant or temporary worker visa.

These
individuals may apply for a waiver of the two-year foreign
residency requirement. There are five statutory bases to apply
for a J1 waiver:

•
A no objection statement from your host government;
• A request from an interested U.S. Government agency
on your behalf;
• A claim that you will be persecuted if you return
to your country of residence;
• A claim of exceptional hardship to a U.S. citizen
or permanent resident spouse or child if you are required
to return to your country of residence; or
• A request by a designated State health agency or its
equivalent.

J2
Visas/Family Members

The spouse
and minor children of participants in exchange programs may
apply for derivative J2 dependent visas to accompany or follow
to join the principal alien. Dependents may apply to USCIS
for authorization to accept employment in the U.S.

Law Offices of Hasbini Immigration Lawyer San Diego in San Diego County