The immigration laws are complex and provide various basis for the grant of entry into and establishment of permanent residence in the United States. A brief overview is given below for the procedures for entry of personnel and investors into the United States. However, matters relating to obtaining permanent residence status are not dealt with in this booklet. It is to be noted that all of the categories of visas discussed here are “non immigrant” visas.
Entry of Executives and Managers ( The L-1 Visa):
This category of visa allows a company in a foreign country to sponsor its executives and managers to enter and work for a branch, subsidiary or affiliated company. This is the “intra company transfer of executives and managers”.
In order for a person to be successfully sponsored, he or she must have a qualifying relationship with the sponsoring company. This entails the following:
(1) the alien must have been employed by the sponsoring employer, subsidiary or
affiliate of the employer for at least one year in the preceding three years.
(2) The employment in the U.S. shall be in a managerial or executive position.
A manager is one who manages the organization or a department / division with discretion over the day today operations, supervising the work of other employees and authority to execute personnel functions. An executive directs the management of an organization or a major part of it, establishing goals or policies of the organization.
The alien must also have a Bachelors degree or its equivalent, in order to qualify under this category. The immigration Department requires documentation relating to the petitioning employer to verify the legitimacy of the petition. This includes organizational materials such as Articles /Memoranda of Incorporation, annual reports, business licenses, advertisements, invoices, contractss with entities in other countries, trade invoices, title deed or lease to real estate, income tax statements etc. The subsidiary or affiliate must prove its relationship with the foreign company. Executives and managers may reside in the U.S. under an L-1 visa for a maximum of 7 years. A person entering under an H-1 (see below), and later converting to L-1, will have the seven year stay reduced by the number of years he has resided in the U.S. under the H-1 visa. Thus, the L-1 does not provide the alien with legal permanent residence. However, it can be the basis for applying for such adjustment of immigration status
Entry of Specialty Occupation Workers( H-1b):
“Specialty occupations” are those occupations requiring (1) highly specialized knowledge and (2) a Bachelors degree or its equivalent. Restated from the viewpoint of the person being sponsored for this category, the questions he or she must address are (1) whether his/her occupation is a specialty occupation, and (2) whether he/she is qualified to engage in that occupation, upon which qualification the visa application is based.
Occupations recognized as “specialty” include researchers, scientists, computer programmers, physicians, dietitians, journalists, graphic designers, and fashion models.
This category of visa is sought when a U.S. based employer offers employment to an alien in the U.S. As part of this process, the employer is required to file an application with the Department of Labor, stating that it is offering the alien beneficiary the “prevailing wage”, and that the working conditions to the alien will not adversely affect the working conditions for similarly employed workers. The visa is usually issued in the country where the alien is living.
A person entering under the H-1B category is authorized to work only for the sponsoring petitioning employer. However, such person is allowed to hold additional employments, provided such other additional employer/s petition separately, and in addition to the first employer’s petition for that worker. Further, a person entering upon the petition of one employer is at liberty to change employment, provided that the new employer petitions on behalf of the alien.
The maximum time that an H-1B is issued for is three years at one time, and may a be renewed for a maximum of an additional three years, and for a cumulative total of six years. In order for the alien to return on an H-1B visa after the expiry of six years, the alien must leave the United States for one year.
Investor or the E Visas:
This visa allows the entry into the U.S. by personnel of trading companies from "treaty contries". There are a total of 54 nations that are "treaty contries" which have a treaty with the U.S., under which the alien personnel of companies from those countries may be allowed to work in the U.S.. Such personnel include executives, managers and specialists.
This category of visa is reserved specifically for nationals of treaty countries seeking to enter the U.S. to carry out substantial trade. The international trade between the home country and the U.S. must be 'substantial' in the sense that there is a "sizable and continuing volume of trade". More then 50 per cent of the international trade involved must be between the U.S. and the company's country.
The E-2 visa is available for entrepreneurs from treaty countries investing a substantial amount of capital in a U.S. enterprise. The entrepreneur must be in the role of "developing and directing" investments from the treaty country. There are a lot of 80 countries that have a treaty with the U.S. that allow for the issuance of an E-2 visa.
The immigrant Investor Program, also known as "EB-5", was created to bring investment through foreign entrepreneurs to stimulate the U.S. economy through capital investments and job creation.
Under this program, the EB-5 investor must invest (a) in a new commercial enterprise in the U.S., which (b) creates 10 new jobs for qualifying U.S. workers, and where (c) the investment amount is U.S. $1,000,000 (but in specified cases may be lowered to U.S. $500,000).
a. New Commercial Enterprise
A new commercial enterprise is defined as any for-profit activity formed for the ongoing conduct of lawful business either
(1) Established after Nov. 29, 1990, OR
(2) Established on or before Nov. 29, 1990, that is (i) Purchased and the existing business is restructured or reorganized in such a way that the new commercial enterprise results, or (ii) Expanded through the investment so that a 40-percent increase in the net worth of number of employees occurs.
This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is also engaged in a for-profit activity formed for the ongoing conduct of a lawful business. Note: This definition does not include noncommercial activity such as owning and operating a personal residence.
b. Job Creation Requirements
The enterprise must create or preserve at least 10 full-time jobs for "qualifying U.S. workers" within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor's admission to the United States as a Conditional Permanent Resident.
A qualifying employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.
Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week.
c. Capital Investment Requirements
General. The minimum qualifying investment in the United States is $1 million. This amount may, however, be lowered if the investment is in specified economically backward areas known as Targeted Employment Area (High Unemployment or Rural Area), in which case the minimum qualifying investment either within a high-unemployment area or rural area in the United States is lowered to $500,000.
Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebteness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the asstes of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars.
(i) Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purpose of section 203(b)(5) of the Act.
(ii) Investment capital cannot be borrowed.
BUSINESS VISITOR-B-1 VISA
The B-1 "visitor" visa is a nonimmigrant visa for foreign nationals who wish to enter the United States temporarily reasons that concern business (B-1). The other B category visa is: pleasure or medical tratment (B-2). These are issued on a temporary basis.
A B-1 visa is issued to business visitors who wish to enter the U.S. for a temporay period to engage in legitimate business activities, such as meetings, conferences, negotiating contracts and consultations. B-1 visa holders may not work in the U.S. and may not be paid from a U.S. source.
When is a B-1 Visa Needed?
Individuals who wish to attend scientific, educational, professional, business, or religious conventions, conferences, workshops or seminars.
Individuals who intend to work on specific projects in the United States and be paid by a foreign employer for that work; business professionals who wish to participate in commercial transactions (which do not involve permanent employment), such as negotiationg contracts or consulting with business associates.
Individuals who wish to undertake independent research studies, do market research or any other similar activity.
Business professionals who wish to explore the possibility of setting up a subsidiary of a foreign corporation investment but the individual cannot remain in U.S. to manage the established business.
Technical personnel who are needed to install or service equipment in conjunction with a contract of salem, or to provide after sales service.
Business professionals who need to attend meetings as a member of the Board of Directors of a United States Corporation.
Individuals who wish to observe business, professional, or vocational activity as long as it does not involve any hands-on activity.
Professional athletes who need to compete in a tournament that involves prize money and not a salary.
Purchasing agents of a foreign employer who need to come to the United States to procure goods, components, or raw materials for use outside the U.S.
Foreign business persons who need to come to the U.S. because of litigation.
Investor Visas ( E-Visas):
The Immigration laws of the United States allow aliens investing money in the U.S., and creating employment within the U.S., to enter the United States. This avenue for entry into the United States covers two types of investors :
a) Treaty Traders (E1): Owners and employees of businesses in countries conducting a substantial volume of trade with the United States, and
b) Treaty Investors (E2): Owners and employees of businesses in countries that have a substantial amount of capital in the U.S.
Both set of countries are identified by the treaties they have with the U.S.
An alien seeking to enter under this classification must have (1) established and engaged in a new commercial enterprise, (2) must have invested or be in the process of investing a certain sum of money (usually U.S. $1 million, which may be dropped to U.S. S500,000, in certain situations to benefit economically backward areas), and (3) which investment must benefit the U.S. economy and create full time employment of at least ten persons (other than the investing alien, his/her spouse and children). A qualifying immigrant investor is granted two years "conditional permanent residence" status. In order to become a permanent resident without condition, the alien must demostrate, within 90 days before the 2nd anniversary of being given conditional permanent residence, the following: (1) a commercial enterprise was established by him/her, (2) he/she invested or was actively in the process of investing the required capital, and (3) he/she “sustained the actions” described in the two foregoing requirements, throughout the period of his/her residence in the U.S.
Visiting the U.S. For Business (B-1):
A person resident and employed overseas, who wishes to enter the U.S. temporarily for “business” purposes, may do so upon issuance of a B-1 visa. This entails the Immigration officer in the U.S. Embassy / Consulate being convinced that the applicant does not intend remain in the U.S. upon the expiry of the visa. It is for the applicant to provide to all necessary information evidencing his intent to leave the U.S. within the time provided by the visa. This is done by showing the applicant’s financial condition, personal and professional ties with his home country.
A person entering under this category is not authorized to take up employment in the U.S.