If you are, with a personal investment of as little as $50,000 USD into your own business you and your family may be able to live and work in the United States with a work visa. Here is how it works:
- Create a new business (start up) or invest in an existing business using your personal funds of at least $80,000 USD.
- Personal funds can come from any legal source, such as savings, gifts or loans from friends and family, or any other legal source that is not secured against the business.
- Apply for Change of Status to E-2 or apply for an E-2 visa in your home country. Processing times are about eight (8) to ten (10) weeks. Premium Processing is available from USCIS for Change of Status at an additional cost, which will lead to an approval in as little as two (2) weeks.
- E-2 status will last for up to two (2) years and may be renewed for as along as you develop and control your business.
Requirement 1 – Coming to the United States to invest in a new or existing enterprise
As a treaty investor, you must be coming to the United States to invest in a new or existing enterprise.
USCIS defines an E-2 investment as the investor’s placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit. Your investment may be for the purpose of establishing a new business venture, or purchasing a pre-existing business. In either scenario, you must demonstrate that the capital you are investing is substantial.
An investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit. The capital must be subject to partial or total loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity. See 8 CFR 214.2(e)(12) for more information.
A substantial amount of capital is:
- Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
- Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
- Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise. The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial
A bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit. It must meet applicable legal requirements for doing business within its jurisdiction.
Requirement 2 – Investment must be in a bona fide enterprise and may not be marginal
Your investment must be in a bona fide enterprise and may not be marginal.
A bona fide enterprise is one that is a real, active commercial or entrepreneurial undertaking which produces services or goods for profit. The enterprise cannot be an idle investment held for potential appreciation in value, such as undeveloped land or stocks held by an investor who has no intent to direct the enterprise.
A marginal enterprise is one that will not generate more than enough income to provide a minimal living for you and your family or to make a significant economic contribution.
- The investor, either a person, partnership or corporate entity, must have the citizenship of a treaty country.
- If a business, at least 50 percent of the business must be owned by persons with the treaty country’s nationality.
- The investment must be substantial, with investment funds or assets committed and irrevocable. It must be sufficient to ensure the successful operation of the enterprise.
- The investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking. A paper organization, speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
- It must generate significantly more income than just to provide a living to you and family, or it must have a significant economic impact in the United States.
- You 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.
- You must be coming to the United States to develop and direct the enterprise. If you are not the principal investor, you must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
The investment enterprise may not be marginal. A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income. In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins. See 8 CFR 214.2(e)(15).
REQUIREMENT 3 – Period of Stay
Qualified treaty investors and employees will be allowed a maximum initial stay of two years. Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted. All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.
An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States. It is generally not necessary to file a new Form I-129 with USCIS in this situation.
No Dual Intent
Regarding E2 visas and the requirement that an applicant overcomes the presumption of immigrant intent as required by Section 214(b) of the Immigration and Nationality Act (INA), the Foreign Affairs Manual states that “..absent other evidence, a mere statement of intent to return [to their foreign residence] will suffice”. This is in contrast to the normal 214(b) guidelines which apply to tourist visas wherein the applicant must convince the consular officer that they have significant social, economic and family ties outside of the United States sufficient to convince the consular officer that the applicant will be compelled to return to their foreign residence.
If you are from one of the following countries and you have money to invest in the United States, this visa option may work for you:
|Albania||Congo (Brazzaville)||Honduras||Mongolia||Slovak Republic|
|Armenia||Costa Rica||Italy||Morocco||South Korea|
|Austria||Czech Republic||Japan||Norway||Sri Lanka|
|Bosnia & Herzegovina||Finland||Liberia||Poland||Togo|
|Bulgaria||France||Lithuania||Romania||Trinidad & Tobago|
|China (Taiwan)||Honduras||Moldova||Singapore||United Kingdom|
There are several steps along the path to obtain an H-1B work authorization for a foreign worker. After the employer submits a Labor Condition Application and files a petition to obtain H-1B classification for the alien. If the alien is already in the U.S. in another status, an application for change of status is filed simultaneously with the petition. If the alien is in the U.S. in H-1B status working for another employer, a change of employer/extension of stay application is filed simultaneously with the petition.
Filing the LCA
By filing the LCA with DOL, the company is attesting to the following:
1. That for the entire period of authorized employment (typically three years), the company 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:
the actual wage level paid by the company to all other individuals with similar experience and qualifications for the specific position in question OR
the prevailing wage level for that specific occupational classification by all employers in the geographic area of intended employment. We will assist you in determining the prevailing wage for the position. DOL will accept a State Employment Service Agency (SESA) wage determination as per se correct and will not investigate a prevailing wage complaint where there is such a determination.
2. That for the entire period of authorized employment, the employment of the H-1B alien will not adversely affect the working conditions of workers similarly employed in the area of intended employment.
3. That on the date the LCA is signed and submitted, there was not a strike, lockout, or work stoppage in the course of a labor dispute in the relevant occupation at the place of employment, and if such a strike occurs, the employer will notify DOL within three days.
4. That on or before the date of the LCA, notice of the application was posted in two conspicuous locations in the employer’s establishment. If a collective bargaining agreement applies to the position, notice must be provided to the collective bargaining representative in lieu of posting.
In addition, a copy of the LCA certified by DOL must also be provided directly to the alien prior to beginning the H-1B employment.
Please note that there are additional attestations and requirements that “H-1B dependent” employers must comply with. An “H-1B dependent” employer is generally one that has a high percentage of H-1B employees. Please let us know immediately if 15% or more of the workforce at your company are H-1B employees.
In addition, note that if the company has onsite contract workers who are employed by an “H-1B dependent” employer, the employer of these contractors may request assurance from your company that your company has not laid off workers 90 days prior to the worker being on your company’s worksite, and your company does not intend to lay off workers within 90 days after the worker is on your worksite. Thus, lay-offs at your company may affect your ability to keep contract employees of H-1B dependent employers on your worksite.
The LCA procedure is primarily complaint-driven; that is, an investigation into the accuracy of the LCA will normally occur only if a complaint is filed by an aggrieved party. If a complaint is filed, the DOL Wage and Hour Administrator will investigate the complaint. In the event of a violation of the LCA, the Administrator may (1) impose a $1,000 fine per violation; (2) bar the employer from obtaining future visas for a period of at least one year; and (3) order the employer to provide for payment of back wages. Material misrepresentation on the LCA can also subject the signer to penalties for perjury including fines and incarceration.
Satisfying Documentation Requirements
Within one working day of the filing of the LCA, upon request by any person, the company must make available for inspection certain documentation about the LCA. They must prepare a “Public Access” folder for this purpose. This folder must be retained for one year beyond the end of the period of employment specified on the LCA.
In addition to the public access documentation, the company must maintain certain records for DOL to review in the event of a complaint. The company must maintain payroll records for the alien and any other individuals with experience and qualifications similar to those of the alien’s who are in the same position at the place of employment. The company must maintain the payroll records for a period of three years from the date of the creation of the records.
The H-1B Petition
DOL will certify the LCA immediately via the computer. Once the LCA has been certified, we will complete the H-1b forms, and send them to you to sign. When you return them to me, I will file the H-1b application with USCIS. The USCIS filing fee for the H-1b petition is $460.00. The fee may not be paid by the alien. The petition will consist of the Form I-129, a company letter of support outlining the proposed position duties and requirements, and supporting documentation including information about the company. It typically takes three to six months for USCIS to approve the H-1b petition. However, for an additional $1,225.00 paid to USCIS, Premium Processing will be completed within 15 days.
H-1B nonimmigrant visa classification has two major requirements: (1) that the position to be filled is a “specialty occupation”, i.e., an occupation requiring the theoretical and practical application of a highly specialized body of knowledge, and for which attainment of a U.S. Bachelor’s Degree or higher is a minimum requirement for entry into the occupation; and (2) that the alien possesses a U.S. Bachelor’s Degree or higher in the specialized field. (Note that if the individual does not have a degree, or possess a foreign degree, an education and/or experience evaluation will be required to determine the equivalence to a U.S. degree.)
If the H-1B petition is requesting a change of employer for an individual already in H-1B classification, the employee may begin working for the new employer upon filing of the new employer’s H-1B petition if the employee was lawfully admitted into the U.S., has not worked without authorization since last entry, and the petition is filed before expiration of the employee’s authorized stay.
For petitions requesting a change of status from another nonimmigrant classification, the company may begin to employ the alien in H-1B classification once the petition is approved. If the alien is outside the U.S., he or she will need to obtain an H-1B visa stamp at a U.S. embassy or consular post abroad in order to enter the United States. Similarly, if the alien is in the U.S., but then travels internationally, he or she will likely need to obtain an H-1B visa stamp prior to reentering the United States. Please contact us if you would like assistance with the H-1B visa stamp application.
DISCUSS YOUR CASE
The L-1 visa is a non-immigrant visa provided for in the Immigration & Nationality Act which is available to aliens who seek to enter the U.S. temporarily to continue work for the same employer or its affiliate or subsidiary.
Eligibility Requirements for an L-1 Visa:
- One-year requirement: An alien seeking entry on an L-1 visa must be employed continuously abroad for 1 of the past 3 years by the parent, branch, affiliate, or subsidiary of the U.S. company preceding his application for admission on an L-1 visa
- Employment for the L-1 visa must be from a firm, corporation or other legal entity or its branch, affiliate or subsidiary, including profit, nonprofit, religious, and charitable organizations
- An L-1 visa holder must either work in a capacity that is managerial or executive (L-1A), or must hold a position that involves specialized knowledge (L-1B)
- Full-time employment is NOT required while in the U.S. on an L-1 visa
- The doctrine of Dual Intent applies to L-1 visa holders
- The one-year requirement for the L-1 visa cannot be met by working part of the year for affiliate or branch in U.S.
- Time spent in U.S. will not interrupt the one-year requirement for an L-1 visa
- Time spent in U.S. in another status in excess of 3 years does not interrupt the one-year year requirement for the L-1 visa if the companies have a qualifying (e.g., parent-subsidiary) relationship
- Working in American Samoa or another outlying possession is sufficient to meet the one-year abroad requirement for an L-1 visa
- A combination of part-time employment can be used to meet the one-year requirement for the L-1 visa if part-time work is for affiliated companies
- Blanket L-1 visa employees are also required to show that they worked for the company abroad for one year
Doctrine of Dual Intent
The “Doctrine of Dual Intent” means that, even though a nonimmigrant must demonstrate genuinely that his/her intent is to remain in the U.S. temporarily, s/he may have both a short-term intent to leave and a long-term intent to remain permanently. In the General Counsel’s view, the “mere desire … to obtain permanent residence in the future does not, by itself, automatically disqualify an alien from admission as a nonimmigrant.” This doctrine is recognized by USCIS for L visa categories. The State Deptartment has determined that if the L-1 obtained a change of status, the fact that s/he “is the beneficiary of an application for a preference status filed under section 204 or has otherwise sought permanent residence in the United States shall not constitute evidence of an intention to abandon foreign residence for purpose of obtaining a visa as a nonimmigrant described in subparagraph (L) of section 101(a)(15).” A person in L status can file for an extension even after she files for an application for Adjustment of Status. 8 C.F.R. 214.2(h)(16)(i), (1)(16)(ii).
There is no prevailing wage requirement for the L-1 visa
- Beneficiary employed in U.S. directly by a foreign company, who is not controlled in any way by the foreign company’s office in the U.S. will not qualify for L-1 status
- There are only limited circumstances in which an employee who is in L-1B (specialized knowledge) status may be out-sourced to another company. USCIS requires the L-1B employer to retain ultimate authority over the worker
- An L-1 is ineligible for classification as a specialized knowledge worker (L-1B) if s/he will be “Stationed primarily” at the worksite of an employer other than the petitioner or an affiliate, subsidiary, or parent and the beneficiary will be “principally” under the “control and supervision” of the unaffiliated employer or the placement in the nonaffiliated worksite is “essentially an arrangement to provide labor for hire for the unaffiliated employer”
- Joint ventures in which there is less than majority ownership, but control, may be sufficient to qualify the relationship as subsidiary/affiliate for L-visa purposes
- Contractual relationships are generally not sufficient to establish the relationship necessary under an L-visa
- For ownership by a common group, each individual in the group must own approximately the same share or proportion of each entity to qualify as an organization for purposes of an L-visa
- Church organizations may qualify as parent/subsidiary or affiliates for an L-visa under certain circumstances
Factors to determine if relationship exists to be a qualifying organization for purposes of an L-visa:
- Common name
- Regular sharing and exchange of personnel
- Cross directorship
- Sharing of technical, financial and research skills
- Size and general recognition of organization
- The most exacting standard applies to those individuals in the sciences, education, business and athletics
- A much less rigorous standard applies to individuals in the arts
- An intermediate standard applies to individuals in the motion picture or TV industries
- The receipt of a major, internationally recognized award
- At least three of the following:
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor
- Membership in an association in the field which requires outstanding achievements of its members
- Published material in professional or major trade publications or major media about the individual concerning his/her work in the field (This documentation must include a copy of the article showing the title, date and author. If the article is not in English, a translation must be provided)
- Evidence of participation on a panel, or individually, as a judge of the work of others (This can include participation as a panel of experts for a Ph.D. defense and/or review of articles and books prior to publication)
- Scientific, scholarly, or business-related contributions of major significance to the field (This documentation should take the form of letters from peers who are considered to be experts in the field attesting to the individuals major contributions)
- Authorship of scholarly articles in the field in professional journals or other major media
- Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation
- High salary or other remuneration commanded by the individual for services (This must be accompanied by contracts or other reliable evidence)
- Other comparable evidence
- Alien has performed, and will perform, services as a lead or starring participant in productions or events which have a distinguished reputation
- Alien has achieved national or international recognition for achievements evidenced by critical reviews or other published materials
- Alien has performed, and will perform, in a lead, starring, or critical role for organizations and establishments that have a distinguished reputation
- Alien has a record of major commercial or critically acclaimed successes
- Alien has received significant recognition for achievements from organizations, critics, government agencies, or other recognized experts in the field in which the alien is engaged OR
- Alien commands or has commanded a high salary
The P categories, P-1, P-2 and P-3, are non immigrant visa options for those foreign nationals who will be coming to the US to perform in athletics or entertainment.
For an athletic team to petition for a foreign athlete, the team must have achieved international recognition in the sport. An athlete who will come to the US to compete in individual events rather than as a team must show that he or she is internationally recognized. USCIS has defined “international recognition” as a “having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country.” A P-1 petition may be filed by a US employer or organization, a foreign employer, or by a US agent. The petition must include information about any written contract between the alien and the petitioner, or, if there is no written contract, a thorough description of:
- their oral agreement
- an explanation of the event and an itinerary
- a consultation from a labor organization
If a US. employer or agent is filing the petition, it should be filed at the regional USCIS Service Center with jurisdiction over the petitioner. For example, if you are an employer located in Cincinnati, Ohio, you file the Petition at the Nebraska Service Center, in Lincoln, Nebraska. If you are located in Kentucky, you file the application at the Texas Service Center in Mesquite, Texas. When the application is filed on behalf of an athlete or team, at least two of the following types of evidence need to be presented:
- Participation to a significant extent in a prior season with a major US sports league
- Participation on a national team at international events
- Participation to a significant extent in a prior season with a US collegiate team
- A written statement from an official in the governing body of the sport outlining how the athlete or team is internationally recognized
- A written statement from a member of the sports media or other recognized expert outlining how the athlete or team is internationally recognized
- Evidence that the alien is highly ranked if the sport uses a ranking system
- Evidence that the alien or team has received a significant award for performance
It must be noted that the Nebraska Service Center, in Lincoln, Nebraska, takes the position of “major U.S. sports league” to mean the MAJOR leagues therefore, will deny applications for athletes who are going to play in the “minor” leagues.
For an entertainer to obtain a P-1 visa, he/she must be part of an entertainment group. In most circumstances, individuals cannot obtain a P-1 . The group must be internationally recognized as outstanding in the area, and have a sustained period of achievement. It must be noted that the USCIS may waive this requirement for entertainment groups that are “recognized nationally” as being outstanding in their discipline for a sustained and substantial period of time.” In addition, the individual members must have been members of the group for at least 1 year. This requirement may be waived in certain circumstances (for example, circus personnel are not bound by this requirement as long as the circus group has an international reputation.) The group must have been together for at least one year, and at least three-fourths of the members must have been in the group for at least a year. When the application is being filed on behalf of an entertainment group, the petition must include details about each person’s length of membership in the group. The petition must also demonstrate the group’s sustained international recognition. This may be done in two ways, first by nomination or receipt of awards for outstanding achievement in the field, and second, by submitting three of the following types of evidence:
- The group has and will continue to perform a starring role in productions or events with a distinguished reputation, evidenced by reviews, advertisements, press releases, contracts, or endorsements
- The group has international recognition, evidenced by reviews in papers, trade journals, etc.
- The group has and will continue to perform a starring role in productions or events with a distinguished reputation, evidenced by articles in newspapers, trade journals, etc.
- The group has had commercial success
- The group has gained significant recognition for achievements from leaders in the field, or
- The group commands a high salary compared to others similarly situated.
P-3 visas classification is for “culturally unique artists and entertainers, individually or in a group coming to the United States. To develop, interpret, represent, coach or teach their particular art or discipline.” Culturally unique has been defined as a style or artistic expression, methodology, or medium which is unique to a particular country, nation, society, class ethnicity, religion, tribe, or other group of persons.” In order to obtain a P-3 visa, an applicant must provide the following:
- Affidavits or letters from experts regarding the authentic cultural uniqueness of the performance
- Other documentation that the performance is culturally unique, such as material published in newspapers and trade journals
- Evidence that each performance will be culturally unique.
Admission to the United States on a P visa is generally limited to a specific completion, event or performance. Therefore, it is imperative to devise a detailed schedule of events. The more events or competition, the longer the admission will be. Also, if a contract is signed for just one year, it is possible the authorized stay will be just for one year although the schedule could be for events for longer than a year. P Visas are also required to obtain a “consultation” with an appropriate labor group regarding the nature of the work to be done and the alien’s qualifications is mandatory before a P petition is approved. In general, obtaining a P visa can take a few months; however, premium processing is available.Many times, P applicants MUST use “premium processing” in order to be able to make it to their event or competition. It is CRITICAL to plan ahead in order to obtain a P visa, because visas are NOT issued overnight. The Fleischer Law Firm LLC would be happy to assist you in your quest for a P visa.
DISCUSS YOUR CASE
To be eligible for a TN visa:
- Must prove intent not to immigrate
- Must participate in “Activities at a Professional Level”, requiring “at least a baccalaureate degree or appropriate credentials demonstrating status as a professional”
- Must be employed in one of the 65 approved careers
- Economists must have a baccalaureate or licenciatura degree
A Canadian citizen can apply for a TN visa at any U.S. port of entry. Documentation must include:
- Proof of citizenship
- A letter from the prospective employer describing in detail the activities to be performed to show they are in a professional capacity (See Employment Letter below)
- Licenses, diplomas, degrees, certificates or professional memberships
- professional activity to be engaged in
- purpose of entry
- anticipated length of stay
- beneficiary’s educational qualifications
- beneficiary’s compliance with applicable state law AND
- arrangements for remuneration
The employer in the U.S. must provide to the applicant a Letter of Employment in the United States. The letter must indicate that the position in question in the U.S. requires the employment of a person in a professional capacity, consistent with the NAFTA Chapter 16, Annex 1603, Appendix 1603.d.1.
The applicant must present evidence of professional employment to satisfy the Consular Officer of your plans to be employed in prearranged business activities for a U.S. employer(s) or entity(ies) at a professional level. Part-time employment is permitted. Self-employment is not permitted. An employment letter or contract providing a detailed description of the business activities may be provided from the U.S. or foreign employer, and should state the following:
- Activity in which the applicant shall be engaged;
- Purpose of entry;
- Anticipated length of stay;
- Educational qualifications or appropriate credentials demonstrating professional status;
- Evidence of compliance with DHS regulations, and/or state laws; and
- Arrangements for pay.
- Although not required, proof of licensure to practice a given profession in the United States may be offered along with a job offer letter, or other documentation in support of a TN visa application.
- TN status can be renewed in one-year increments with no specific limit on the total number of years one may hold TN status
- Streamlined application procedures at ports of entry
Relation of baccalaureate degrees to TN occupations
The most successful applications are those that demonstrate the clearest tie between the degree and the position. Some areas have more flexibility than others, including that of economist. For that position, adjudicators have accepted degrees in finance, business with an emphasis in finance or economics, and international relations, with an emphasis in economics. The key is to use the support letter to tie the degree to the duties of the position.
Extensions of Stay
Canadian citizens can renew an existing TN at any U.S. port of entry or through the Nebraska Service Center on Form I-129 with the prescribed fee. 8 CFR ¤214.6(h)(2), addressing re-admission in TN status at the border, provides that the a Canadian citizen seeking re-admission at the border in TN status must present a new letter from the employer together with the supporting evidence of professional credentials and Canadian citizenship. Some have found that CBP inspections officers (and USCIS examiners) may deny admission to a TN applicant seeking re-entry in TN status extension, if that applicant cannot adequately demonstrate a “reasonable, finite end” to the proposed work assignment.
The service swill permit a Canadian citizen who applies for the TN at the border but cannot demonstrate that he is admissible to ask for a hearing before an IJ or withdraw his application for admission. If he declines to and he is inadmissible under INA ¤212(a)(6)(C) or (7)(A), the officer may initiate expedited removal procedures.
DISCUSS YOUR CASE