As a general rule, foreigners (“non-resident aliens”) wishing to live and work fulltime or part-time in the United States may choose between available immigrant (Green Card) and non-immigrant (long term temporary) visa options. In some cases, more than one option is applicable. Immigrant visas typically require either a close family connection with a U.S. citizen or permanent resident (Green Card holder) or an employment based connection. Immigration visas can be very difficult to obtain. And non-immigrant visas may not always be available.
E visas are limited to nationals of countries which have treaties with the U.S. and require substantial trade between the U.S. and the treaty country or an investment of significant cash and management time in a qualifying active job-creating business. L visas are limited to executives, managers or specialized knowledge personnel who have been employed continuously abroad by a parent, branch and affiliate or subsidiary of a U.S. company. H-1B visas for professionals are subject to quota restrictions and time delays. Even F-1 student visas from certain countries are becoming harder to qualify for and generally do not permit gainful employment in the U.S. Furthermore, nonimmigrant visas are generally limited, duration-wise, and are not easily convertible to immigrant visas (except for L-1A managers or executives.). EB-5 Visas avoid most of these restrictions and currently have no waiting periods.
The attorneys at Integrity Law Group are experienced with all types of immigration options and business visas. Principle attorney Max Soi has handled numerous cases and successfully litigated cases in Immigration Court. Integrity Law Group can help you decide what immigration option is right for you.
Non-immigrant work visas can be applied for by foreign professionals (H-1B visas), “treaty traders” or “treaty investors” from countries with treaties with the U.S. (E visas) or intra-company transferees (L visas) for long term stays in the U.S. to engage in trade or conduct.
Some of these visas (such as the L1-A are convertible to legal permanent residence (green-cards). Integrity Law Group is legal counsel to many companies who have substantial trade with foreign countries including China, Thailand, Vietnam in the product areas of textiles, food and electronics. We can help your business grow in the US.
E-1 – Treaty trader applicants must meet certain requirements to qualify for a treaty trader (E-1) visa under immigration law. The general requirements for an E-1are:
- The applicant must be a national of a treaty country.
- The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country.
- The international trade must be “substantial” in the sense that there is a sizable and continuing volume of trade.
- The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant’s nationality.
- Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other.
- The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.
E-2 – Treaty investor visa applicants (E-2) must meet the following requirements:
- The investor, either a real or corporate person, must be a national of a treaty country.
- The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
- The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
- The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S.
- The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
- The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
L-1A – The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one. The employer must file Form I-129, Petition for a Nonimmigrant Worker, on behalf of the employee.
The following describes some of the features and requirements of the L-1 nonimmigrant visa program.
General Qualifications of the Employer and Employee
To qualify for L-1 classification in this category, the employer must
- Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
- Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.
Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
Also to qualify, the named employee must
- Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
- Be seeking to enter the United States to render services in an executive or managerial capacity to a branch of the same employer or one of its qualifying organizations.
Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight. Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others. See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for more complete definitions.
Permanent Employment-Based Immigrant Visas
Several different varieties of employment-based immigrant visas are available. Eligibility for all of these is contingent on an employer’s ability to show that there are no U.S. workers available to fill the particular job for which you are being hired through a process called labor certification. The intent of this policy is to protect U.S. workers by ensuring that U.S. citizens have maximum access to the job market.
The employer will have to file an application for “labor certification” with the Department of Labor that demonstrates that there are no U.S. workers able, willing and qualified to fill the position the employer is offering. An employer can demonstrate this by, for example, advertising the position in local or national newspapers or trade journals and showing that no suitable U.S. workers applied for the job. The employer filing the petition must also be able to show the financial ability to pay the offered wage and that the employee meets the minimum requirements to perform the job satisfactorily. Once the labor certification is approved, it is submitted to USCIS. This submission constitutes your employer’s request to hire you for the position. After obtaining the approval of USCIS, you must file an application to either “adjust” your status if you are already in the U.S. (this is filed with USCIS) or obtain an immigrant visa if you are abroad (this is filed with the U.S. Consulate).
Employment-based immigration is divided into 5 classes, each with its own requirements and annual limits on the number of visas available. Please note that there is no significance to the order in which the preferences are listed – for example, fifth preference visas are actually easier to come by than first preference visas.
FIRST PREFERENCE (Priority Workers)
- Aliens with extraordinary abilities in the sciences, arts, education, business or athletics. Their achievements must have been recognized nationally or internationally in the field through extensive documentation. Aliens seeking to immigrate under this category do not require labor certification or even an offer of employment.
- Outstanding Professors and Researchers — Persons seeking entry as immigrants under this category must be internationally recognized as outstanding in a specific academic area and must have at least 3 years of experience in research or teaching in their field. This category requires an offer of employment in the form of a letter but does not require labor certification.
- Certain multinational executives and managers — Persons seeking entry as immigrants under this category must meet a similar standard to an “L-1″ executive or manager. This category does not require an approved labor certification.
SECOND PREFERENCE (Exceptional Ability and National Interest Waivers)
- Advanced degree holders and aliens of exceptional ability— This category includes workers with advanced degrees or their equivalent and workers with exceptional ability in the sciences, arts, or business, whose contributions will substantially benefit the national economy, or cultural or educational interests or welfare of the U.S.
- If an applicant’s skill is in the national interest, the individual is not required to have a specific job offer and will be exempt from the requirement of labor certification. National interest waivers are granted if it can be shown that the alien will benefit the U.S. economy, improve wages and working conditions for U.S. workers, improve education and programs for children and under-qualified workers in the U.S., or improve the environment.
- Skilled workers: People falling into this category require at least two years of training or experience. They must also obtain labor certification.
- Professionals: People eligible for this visa category must possess a bachelor’s degree or its foreign equivalent and must demonstrate that the degree they hold is the typical requirement for entry into the profession. In this case, experience does not compensate for a lack of education.
- Other workers: This category of visa is available to unskilled laborers with less then two years of training and experience. The waiting period for these visas is up to ten years.
- Special Immigrants: This category of visa is available to people who are seeking reacquisition of citizenship, returning residents, religious workers, U.S. employees abroad or employees of American Institute in Taiwan for 15 years, and Panama Canal Treaty employees, etc.
FIFTH PREFERENCE (EB-5)
- Employment Creation (Investors in the U.S.)– This category allows conditional residency for persons who invest $1,000,000 (or, under certain circumstances, $500,000) in a new commercial enterprise that employs ten full time U.S. citizens or permanent residents who are not family members of the investor. People granted visas for this category are given two-year conditional resident status and can file for the removal of conditional residency before the second anniversary of being granted the visa.
A non-citizen may be placed in removal proceedings (deported) if they enter the US illegally, commit a crime of moral turpitude, a crime of violence, drug crime or any aggravated felony or crime for which the sentence is a year or more. We can help you mount a vigorous defense in all aspects of your deportation case before an immigration judge. Either party may appeal the judge’s decision to the Board of Immigration Appeals. In some cases it may be possible to vacate a conviction if a guilty plea if you were not advised of the immigration consequences of your criminal plea.
Persons in removal proceedings may be eligible for certain forms of relief allowing them to remain in the U.S. legally. The following are the most commonly sought forms of relief:
- Family ties in the United States ( U.S. citizen/permanent resident parents, spouse or children)
- Asylum based on fear of persecution on the basis of race, religion, political opinion, nationality or membership in a particular social group in the individual’s country of origin.
- Withholding of Removal under Convention Against Torture
- U.S. citizenship based on parents’ citizenship
- Waiver based on asylee or refugee status
- Vacating of criminal convictions or guilty pleas
The Immigration Act of 1990 established a new investor category for obtaining permanent resident status (green-card). 10,000 immigrant visas are allocated annually to this category. There are essentially two EB-5 programs, the regular direct investment program and the Regional Center program. In order for an applicant to qualify under the Regular program, the following three basic requirements must be met: (1) investment in a new commercial enterprise; (2) investment of at least $1 million (or $500,000 in target employment areas) into the business with lawful money, and (3) creation of employment for at least 10 fulltime U.S. workers.
The investment may consist of the contribution of various forms of capital, including cash, equipment, inventory, property and other tangible equivalents. An investment amount of $1 million is generally the minimum (fees and costs of the immigration visa must be accounted separately and do not count towards the investment). However, $500,000 is acceptable if the business is situated in a “targeted” employment area, i.e. a rural area or one that has experienced unemployment of at least 150 per cent of the national average rate, as designated by the U.S. Office of Management and Budget.
The second program within the EB-5 category, the Regional Center program, is ideal for the retiree or inactive investor due in large part to the “indirect employment creation” requirement and possible limited partner features of this program. The Regional Center program advantageously removes the 10 employee requirement of the Regular program and substitutes the less-restrictive “indirect employment creation,” which allows the investor to qualify for an EB-5 Investor Green Card without directly hiring 10 people in the company that the investor has invested in. In summary, under a Regional Center program, the investor can qualify by presenting evidence that 10 jobs will be created throughout the Regional Center economy as a result of the investment as supported by an economist’s report from the Regional Center.
In summary the general requirements for an EB-5 Investment Green Card are:
- Invest $1,000,000 in the creation of a new business or $500,000 in a “regional center” or a Targeted Employment Area
- The investment must create 10 or more full time jobs for legal US residents — whether by directly hiring for the business or indirectly through investment in a regional center
- The investor must be able to prove the lawful source of funds through personal and business documentation
- The commercial enterprise must benefit the US economy
- The investor must “manage” the commercial enterprise