2020 AILA Virtual Annual Conference on Immigration Law
July 20/23 - 2020
Nonimmigrant Business Visa
There are many options available to obtain a non-immigrant business visa in order to work in the United States. We will assess each client’s needs and circumstances to determine which option is most advantageous, including but not limited to: L-1 Multinational Executive, H-1 Professionals, E-1 Treaty Trader, E-2 Treaty Investor, O-1 Extraordinary Ability, P visas for artists and entertainers, R-1 Religious Workers, H-2 Temporary Workers, H-3 Trainees, TN visas for Canadians and Mexicans, E-3 for Australian nationals, B-1 for business travelers, I visas for journalists, and Q visas for cultural exchange.
- B-1 Visitor for Business
The B-1 visa allows certain employees of foreign companies to travel to the U.S. for a brief period of time and for specific business purposes only.
- E-1 Treaty Trader / E-2 Treaty Investor
E-1 Treaty Traders
The E-1 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States solely to engage in international trade between the U.S and treaty country. Certain employees of such a person or of a qualifying organization may also be eligible for this classification.
Items of trade include but are not limited to: Goods, Services, International banking, Insurance, Transportation, Tourism, Technology and its transfer, and some news-gathering activities.
There is no minimum requirement regarding the monetary value or volume of each transaction. While monetary value of transactions is an important factor in considering substantiality, greater weight is given to more numerous exchanges of greater value.
To qualify, over 50% of the total volume of international trade of the company must be between the U.S. and the trader’s treaty country.
Period of Stay
Qualified treaty traders 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-1 nonimmigrant may be granted. All E-1 nonimmigrant, however, must maintain an intention to depart the United States when their status expires.
Family of E-1 Treaty Traders and Employees
Treaty traders and employees may be accompanied by spouses and unmarried children who are under 21 years of age. Spouses of E-1 workers may apply for work authorization by filing Form I-765. Once approved, there is no restriction as to where the E-1 spouse may work.
E-2 Treaty Investors
The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or of a qualifying organization may also be eligible for this classification. The list of countries with which the United States maintains a treaty of commerce and navigation includes but is not limited to: ITALY, SPAIN, ARGENTINA, COLOMBIA, CHILE, MEXICO, THE UNITED KINGDOM, FRANCE, GERMANY, among many others.
General Qualifications of a Treaty Investor
To qualify for E-2 classification, the treaty investor must: be a national of a country with which the United States maintains a treaty of commerce; have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and be seeking to enter the United States solely to develop and direct the investment enterprise. This is established by showing at least 51% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.
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 loss if the investment fails. The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.
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, and 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.
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.
General Qualifications of the Employee of a Treaty Investor
To qualify for E-2 classification, the employee of a treaty investor must: be the same nationality of the principal alien employer (who must have the nationality of the treaty country) and either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.
If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country. These owners must be maintaining nonimmigrant treaty investor status. If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.
Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.
Special qualifications are skills which make the employee’s services essential to the efficient operation of the business. There are several qualities or circumstances which could, depending on the facts, meet this requirement. These include, but are not limited to the degree of proven expertise in the employee’s area of operations, whether others possess the employee’s specific skills, the salary that the special qualifications can command, and whether the skills and qualifications are readily available in the United States.
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.
Terms and Conditions of E-2 Status
A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted. An E-2 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the: relationship between the organizations is established, the subsidiary employment requires executive, supervisory, or essential skills , and that the terms and conditions of employment have not otherwise changed.
Family of E-2 Treaty Investors and Employees
Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age. Their nationalities need not be the same as the treaty investor or employee. These family members may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee. Spouses of E-2 workers may apply for work authorization by filing Form I-765 with fee. If approved, there is no restriction as to where the E-2 spouse may work.
- H-1B Professionals
H-1B is a non-immigrant classification granted by Citizenship and Immigration Service to persons coming to the United States to work in a specialty occupation, requiring at lease a bachelor’s degree or its equivalent.
An H-1B may be granted for an initial 3 year period, with a subsequent extension of 3 more years. With some exceptions, the H-1B classification is limited to 6 years.
A job offer from a prospective employer in the field in which the client has his or her college education or prior experience is necessary.
If the client does not have a college degree, it may be possible to obtain the equivalent of a college degree based on his or her credentials. We will need the foreign national’s degrees, transcripts, detailed resume and letters of prior work experiences.
From the company, we will need the most recent tax returns or financial statements, a business plan if the company is new or developing, and information about the company such as brochures.
Once the H-1B visa petition is approved by Citizenship and Immigration Service, and the person obtains a change of status or has the H-1B visa affixed on to his/her passport, the client is authorized to work only for the U.S. Employer. The employee should receive the salary indicated on the labor condition application (LCA) and file an annual income tax return in the United States. The position indicated on the income tax return and the salary received should be the same as those indicated on the H-1B petition. If the conditions of employment change, an amendment to the H-1B petition may be necessary. If at any time the employee stops working for the company in the United States and/or begins working for another company, the H-1B visa classification will no longer be valid.
The spouse and unmarried children under 21 are granted H-4 status, which allows them to accompany the H-1B professional in the U.S. and to attend school. However, it does not permit them to work, unless they obtain their own H-1B visa or other work authorization.
Our firm represents both individuals and employers in filing H-1B petitions. We handle specialty H-1Bs for nationals of Chile and Singapore, as well as H-1Bs for health care professionals. We are proud to represent one of Miami’s largest hospitals in obtaining H-1B visas for its doctors, as well as individual doctors from around the country.
H1-B for Foreign Medical Graduates
An H1-B visa is a temporary work visa allowing those in specialty occupations to work in the United States. H1-B visas are granted initially for up to three years, and are renewable for another three years. With some exceptions, H1B visas are limited to six years in duration.
Because medicine is defined as a “specialty occupation,” the H1B visa is a good option for any foreign medical graduate (FMG) seeking residency or fellowship training in the U.S., and planning to remain in the U.S. to practice medicine at the completion of that training.
The J-1 visa (Exchange Visitor) also enables FMGs to pursue residency and/or fellowship training in the U.S. While the J-1 Visa is easier to obtain initially, it comes with a requirement that the FMG depart the U.S. at the completion of training and spend two years in his or her home country before being able to return to the U.S. This two-year home residency requirement can be difficult to waive.
Therefore, if the doctor’s intent is to practice medicine in the U.S. following residency training, the H1-B visa is often the best route to take. With an H1B visa, one will be eligible to begin the process for a obtaining a Green Card without leaving the United States; with a J-1 visa, that is significantly more difficult. Keep in mind, however, that obtaining an H1-B visa and finding a program willing to sponsor an FMG requires some advance planning. Most FMG’s will want to begin this planning prior to completing medical school.
Requirements for getting an H-1B visa as an FMG
To obtain an H1B visa for a fellowship/intern/residency position, one must have the following:
- Medical Degree from an accredited medical school (in the U.S. or abroad).
- An offer from a U.S. fellowship or residency program that agrees to H1-B sponsorship. (Note: Many programs prefer J-1 visas because ECFMG handles the processing for them, while H1B processing must be handled by the programs themselves. However, many programs do agree to sponsorship. The doctor should ask his or her program directly if they will consider H1B sponsorship in lieu of J-1. Often programs which have a policy of not sponsoring H-1B visas do so because they are simply unfamiliar with the process.)
- ECFMG certification
- USMLE Steps I,II & III or FLEX Parts 1 and 2
- State medical license or other authorization to practice medicine in the state of intended employment. (Most states require medical residents to have state training licenses to practice medicine.)
- H-2 Temporary Workers
H-2B is a non-immigrant visa for temporary workers. Generally, it is available if the employer has a one-time need due to exceptional circumstances, a seasonal need, a peak load need or an intermittent need. The visa is not designed to fill a position that is normally a permanent position within the company. The period of employment must generally be less than one year. The employer must prove that the employment of the temporary worker will not adversely affect the wages and working conditions of similarly employed US workers. This is accomplished by first applying with the U.S. Department of Labor for a Temporary Labor Certification, and placing advertisements in the newspaper for the position along with other recruitment efforts. After the U.S. Department of Labor has issued its determination, a petition must be filed with USCIS. The petition must include evidence to support the employer’s temporary need, along with the information about the requested worker(s). Upon approval of the petition, if the foreign national is abroad, he or she must apply for the H2 visa at the U.S. consulate in his or her home country. It will be extremely important for the temporary worker to establish the intent to return to the home country upon completion of the work assignment.
Timing is critical in H-2B cases, as each year there is a limit on the number of H-2B visas that can be issued. The 66,000 available visas are further divided, with half of them being available on the first day of the fiscal year (October 1 of the preceding year), and the second half becoming available on April 1 of that fiscal year. If visas are not available at the time the petition is filed with CIS, the petition will be rejected even if the Department of Labor already certified the application. Therefore, it is important to plan the filing well in advance, and with the assistance of an experienced immigration attorney.
- H-3 Trainees
The H-3 visa is a nonimmigrant visa which allows foreign nationals to enter the U.S. to receive training in a U.S. company. However, it cannot be used for a graduate program or medical training, and the training cannot be available in the trainee's home country.
To qualify for H-3 visa, the foreign national must be coming to the U.S. to receive training in areas such as commerce, agriculture, government, professions, finance, agriculture, or in an industrial establishment. One must prove that he or she:
- Is not receiving graduate medical education or training in the U.S.;
- Does not have the opportunity to receive similar training in the home country;
- Needs this training to advance one’s career outside the U.S.;
- Will not be productively employed unless it is necessary and incident to the training;
- The training is not being offered to replace a position that regularly employs U.S. workers.
- L-1 Managers, Executives, Specialized Knowledge
L-1A Managers and Executives.
L-1A classifications are conferred upon persons who have been employed by a foreign company in a managerial or executive position, or one involving specialized knowledge. To qualify, a person must have worked for the entity abroad for 1 of the last 3 years in an executive, managerial or specialized knowledge capacity, and will be transferred to a subsidiary, affiliate or branch office in the United States. Once approved, the beneficiary is authorized to work only for the company in the United States. The employee should file an annual income tax return in the United States, and the salary and position should be the same as the one indicated on the L-1A application. If at any time the employee stops working for the company in the United States and/or begins working for another company, the L-1 visa classification will no longer be valid.
The maximum time an L-1A visa will be granted is 7 years for executives and managers. If the U.S. company is a newly established corporation, the initial period will be for one (1) year. If the U.S. company has more than one year of operations with sufficient income and employees, the initial period of L-1A status can be up to 3 years. The more activity the US company has, the higher the possibility that an extension of the L-1A will be granted. An extension may be granted if both the U.S. company and the company abroad have a sufficient level of income, activity and employees. Extensions are granted for 2 years at a time, up to the 7 year limit. During the validity L-1A visa classification, it is absolutely necessary that both companies continue to actively operate.
Spouses and unmarried children under 21 of the L-1A Beneficiary may obtain L-2 classification, which permits them to live and study in the United States, and allows the spouse to obtain employment authorization and a social security number. The L-2 classification does not permit children to work, unless they obtain their own working visa, if eligible.
For Multinational Executives or Managers, once the U.S. company is strong enough, an application for permanent residence can be pursued.
L-1B Intra-company Transferee Specialized Knowledge
The L-1B visa allows a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests 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 a specialized knowledge employee to the United States to help establish one. In order for the employee to qualify for an L-1B Visa, he or she must 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 must continue employment in the U.S. under the same capacity as in the foreign company. The maximum period of stay for L-1B is 5 years.
- P-1 / P-2 / P-3 Athletes, Artists and Entertainers
The P-1 entertainment visa is a nonimmigrant visa which allows foreign nationals who are athletes, artists and entertainers to enter the U.S. for specific events, competitions or performances. The P-1 applicant may be allowed to stay in the U.S. for up to five years with extensions not to exceed a total stay of ten years. An agent may serve as the petitioner/sponsor.
The P-1 visa is suitable for:
- Internationally recognized athletes or athletic teams entering the U.S. to participate in an event of international standing;
- Entertainers and entertainment companies recognized internationally as outstanding to tour the U.S. or participate in events;
- Distinguished circus artists who wish to perform in the U.S.;
- Essential support personnel of P-1 visa holders;
- U.S. agents and companies to bring athletes, athletic teams and their support personnel to participate in events of international standing;
- U.S. agents and companies to bring in entertainers and entertainment companies recognized internationally as outstanding to tour the U.S. or participate in events.
The P-2 visa is a nonimmigrant visa which allows foreign troupes or bands to enter into the U.S. and perform as part of an exchange program. To qualify for P-2 visa, the applicant must come temporarily to the U.S. to perform as an entertainer or artist. The P-2 applicant may come as part of a group, or individually as part of a reciprocal exchange.
The P3 visa is available for foreign nationals coming temporarily to the U.S. to perform, teach, or coach as artists or entertainers, individually or as part of a group, under a commercial or non-commercial program that is culturally unique. Examples of culturally unique performances include traditional, ethnic, cultural, musical, folk, artistic, or theatrical presentations. Evidence of the foreign national’s skills and experience must be included. Admission is granted for up to one year, with extensions permitted.
- O-1 Category Extraordinary Ability
The O category is for foreign nationals of extraordinary ability in the sciences, art, education, business, or athletics, certain foreign nationals accompanying or assisting them, and their family members. The law establishes three different standards for the O-1 category: (1) the highest standard applies to those in the sciences, education, business, and athletics; (2) a less rigorous standard applies to individuals in the arts; and (3) an intermediate standard applies to foreign nationals of extraordinary achievement in the motion picture or TV industries. A company or agent must file on behalf of the foreign national.
Extraordinary Ability in Sciences, Education, Business, and Athletics.
With regard to the first group (in science, education, business, and athletics), CIS rules provide that only a person who is one of the small percentage who have risen to the very top of his or her field of endeavor qualifies for this of extraordinary ability. To qualify for O-1 status, the person must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of receipt of a major, internationally-recognized award, such as the Nobel Prize, or at least three of the following forms of documentation:
- Receipt of nationally or internationally recognized prizes or awards for excellence in the field;
- Membership in associations in the field which require outstanding achievement of their members (as judged by recognized national or international experts in the discipline or field);
- Published material in professional or major trade publications or major media about the foreign national concerning his or her work in the field;
- Participation on a panel, or individually, as the judge of the work of others in the field;
- Original scientific, scholarly, or business-related contributions of major significance in the field;
- Authorship of scholarly articles in the field in professional journals or other major media;
- Employment in a critical or essential capacity for organizations or establishments that have a distinguished reputation;
- High salary or other remuneration commanded by the foreign national for services (as evidenced by contracts or other reliable evidence).
Extraordinary Ability in the Arts
To qualify through extraordinary ability in the arts, CIS requires “distinction.” “Distinction” means a high level of achievement in the field of art as evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that a person is described as prominent, leading, or well-known in the arts.
The rules define the term “art” to include any field of creative activity or endeavor such as, but not limited to, fine arts, visual art, culinary arts and performing arts. In addition, those engaged in the field of art include not only the principal creators and performers but also other essential support person such as, but not limited to: directors, set designers, lighting designers, sound designers, choreographers, conductors, coaches, arrangers, musical supervisors, costume designers, makeup artists, stage technicians, and animal trainers.
To establish distinction, CIS rules provide that the foreign national must be recognized as being prominent in his or her field as demonstrated by evidence that he or she has been nominated for or has been the recipient of significant national or international awards or prizes in the particular field such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award, or at least three of the following criteria:
- Has or will perform a lead or starring role in production or event which has a distinguished reputation (as evidenced by critical reviews, advertisements, publicity releases, publications contracts, or endorsements);
- Has received critical reviews or other published materials by or about the individual in major newspapers, trade journals, magazines, or other publications;
- Has performed a lead, starring or critical role for organizations and establishments that have a distinguished reputation (evidenced by articles in newspapers, trade journals, publications, or testimonials);
- Has a record of major commercial or critically acclaimed success (as evidenced by such indicators as title, rating, standing in the field, box office receipts, motion picture or television ratings, and other occupational achievements reported in trade journals, major newspapers, or other publications);
- Has received significant recognition for achievements from organizations, critics, government, agencies, or other recognized experts in the field (such testimonials must clearly indicate the author’s authority, expertise, and knowledge of the person’s achievements);
- Has commanded or now commands a high salary or other substantial remuneration for services in relation to others in the field (as evidenced by contracts or other reliable evidence).
Other comparable evidence may also be considered.
Foreign nationals of extraordinary ability may also qualify for permanent residence, and while sponsorship is needed for the O-1 temporary visa, the foreign national may self-petition for permanent residence.
- R-1 Religious Workers
The R-1 visa is available to members of religious denominations, having bona fide non-profit religious organizations in the U.S., entering the U.S. to carry on the activities of a minister or religious worker as a profession, occupation or vocation. Examples of persons in religious occupations include, but are not limited to: liturgical workers, religious instructors, religious counselors, cantors, catechists, workers in religious hospitals or religious healthcare facilities, missionaries, religious translators, or religious broadcasters. This group does not include janitors, maintenance workers, clerks, fundraisers, or persons involved solely in the solicitation of donations. The employer must be a bona fide non-profit religious organization which is exempt from taxation as described in section 501(c)(3) of the Internal Revenue Code of 1986, or a religious organization that has never sought such exemptions but would otherwise be eligible for such status.
- To Qualify for an R-1, a religious worker must:
- Be a member of a religious denomination having a bona fide non-profit religious organization in the U.S;
- Be a member of a religious denomination or the affiliate which is exempt from taxation, or the religious denomination qualifies for tax-exempt status;
- Be a member of the organization for at least two years immediately preceding your admission into the U.S;
- Plan to enter the U.S. solely to carry on the vocation of a minister of that denomination or at the request of the organization, or you be entering the U.S. to work in a religious profession, occupation or vocation for the denomination or for an organization affiliated with the denomination;
- Have resided and been physically present outside the U.S. for the immediate prior year if the person previously spent five years in the U.S. in the R1 classification;
- Intend to leave the U.S. on completion of the authorized stay.
Certain religious workers may also qualify for lawful permanent residence.
- TN Professionals
TN nonimmigrant visa category, which enables Canadian and Mexican citizens to be admitted to the U.S. to engage in "business activities at a professional level". TN visas can be issued for up to 3 years, and may be extended. TN visas are valid only to work with the company sponsoring the TN visa holder.
To be eligible for a TN visa, one must:
- Be a Canadian or Mexican citizen;
- Be coming to work in a profession listed in the statute;
- Have a valid job offer from a U.S. employer;
- Hold the required licenses, degrees and/or experience to perform the job offered, as indicated by statute;
- Intend to depart the U.S. upon completion of employment.
Unlike the H-1B visa, TN visas are not subject to an annual cap, and often may be processed more expeditiously directly at the U.S. consulate or port of entry. The TN visa does not have a limit on the number of extensions that can be granted, as long as the foreign national remains a bona fide nonimmigrant.
2020 AILA Virtual Annual Conference on Immigration Law
July 20/23 - 2020