San Diego Work and Investment Visa Lawyer by Habib Hasbini, Attorney at Law
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 acts 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.
- Visas are available for an accompanying spouse and minor, unmarried children. The spouse, but not children, may apply for a work permit once physically present 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.
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 a 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.
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 an L-1A Visa?
Transferred employee must have been employed by the 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, employees must not be low-level managers. Employees may qualify by demonstrating employment level within the company structure, and establishing higher level supervisory or managerial responsibilities.)
- Employers must obtain an 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 a 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.
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 Visa (Trade NAFTA) is a special non-immigration status unique to citizens of Canada and Mexico. TN visas are granted for a period of up to three (3) years. Spouses and dependent children of a TN professional can be admitted into the United States in the TD status.
TN visa and TN status do 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.
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.
Renewing or Extending TN status/TN visa
Once TN status is granted, it is good for up to a period of three (3) years but only for the specific employer for which it was originally requested.
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.
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.
J1 visa applicants must demonstrate to the consular officer that they have binding ties to a residence in a foreign country that they have no intention of abandoning and that they are coming to the United States for a temporary period.
Employment while in J1 exchange visitor status depends upon the terms of the program. Participants in programs that provide for on-the-job training, teaching, research, or other activities, that involve paid employment may accept such employment. Participants in programs that do not involve work may not accept outside employment.
J1 Waiver/Foreign Residency Requirement
Certain J1 exchange visitors who participate in programs that 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 that 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.
- 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 the principal alien. Dependents may apply to USCIS for authorization to accept employment in the U.S.