BUSINESS IMMIGRATION
OBTAINING A "NONIMMIGRANT" VISA FOR BUSINESS OR INVESTMENT PURPOSES
The U.S. immigration system offers several different business immigration options.
If you are an entrepreneur, an investor, or a high-ranking employee of a multinational company, you may be eligible to obtain a visa that will allow you to live and work in the United States. In some cases, you may even be able to obtain permanent residency (also known as a “green card”), which will eventually allow you to apply for U.S. citizenship.
Even for otherwise qualified applicants, obtaining the appropriate visa can be a challenging and confusing process. No matter your circumstances, you are advised to consult an immigration attorney that will help you understand your options and determine the appropriate action to obtain the suitable visa.
To schedule a strictly confidential consultation with a business immigration lawyer, contact us today.
E-1 Visas (Treaty Traders)
An E-1 visa is commonly known as a treaty trader visa. It is a nonimmigrant visa that allows nationals of certain countries who have a treaty of commerce with the United States to come to the United States to promote or engage in international trade, including trade in services or technology, principally between the United States and the relevant treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing, a substantial amount of capital.
Holders of E-1 visas may reside in the United States for extendable periods of two years at a time, and such extensions are unlimited. Thus, as a practical matter, holders of E-1 visas can stay in the United States provided they continue to operate the business upon which the visa was based.
Of course, to be eligible to apply for an E-1 visa, the applicant must be a citizen of a country with which the United States has an active treaty trader agreement. Several other eligibility criteria also apply, including an analysis of the volume of trade between the treaty country and the United States and applicant’s role in the enterprise (only executives or highly skilled workers can apply).
If you are seeking to obtain an E-1 visa to carry on international trade in the United States, we can help you with this immigration option.
E-2 Visas (Treaty Investors)
The E-2 visa is also known as the treaty investor visa. The E-2 visa is similar to the E-1 visa in that it is also reserved for citizens of certain countries with active treaties with the United States. What distinguishes the E-2 visa from the E-1 visa is that the latter requires that the applicant demonstrate sufficient investment activities rather than active business activities. This visa that allows business owners, entrepreneurs, and investors to come to the United States to make or support a substantial capital investment in a U.S.-project.
As with the E-2 visa, the applicant must be a citizen of a treaty country and must have a sufficient amount of capital (generally $100,000 or more, although there is no bright-line rule to provide guidance on this point) invested in a qualifying U.S. company or investment entity. In addition, the primary purpose of the applicant’s contemplated entry into the United States must be the development or directing of that investment. The investment must be made in a real operating enterprise—speculative investments do not qualify.
If you are preparing to apply for an E-2 visa, we are ready to guide you through the process and help you overcome any potential obstacles.
L-1 Visas (Inter-company Transferees)
An L-1 visa is designed the facilitate the admission into the United States of multinational corporate executives and managers, or persons with specialized knowledge. The applicant must have been employed abroad by the parent, branch, affiliate, or subsidiary corporation of the company continuously for one year out of the prior three years.
The L-1 A — which is for executives and managers — is generally valid for up to seven years; while the L-1 B — which is for workers with specialized knowledge or skills — is typically valid for up to five years. To obtain this type of visa, there must be a qualifying relationship between the foreign company and the U.S.-based entity. In some cases, establishing this can be challenging. Beyond proving the connection, the specific individual must also satisfy all relevant requirements.
The L-1 visa has no annual quota. In addition, the employer is not required to obtain a labor certification before petitioning in this category. Nevertheless, the requirements for an L-1 visa are complicated. If you are preparing to apply for an L-1 visa, we are ready to guide you through the process and help you overcome any potential obstacles.
O-1 Visas (Extraordinary Abilities)
The O-1 nonimmigrant category is reserved for certain persons of “extraordinary ability in business, the sciences, arts, or athletics or who have a demonstrated record of “extraordinary achievement” in the television or film industry. Thus, the applicant must be coming to the United States to work in his or her area of extraordinary ability. Note that the applicant may be admitted even if the work to be performed in the United States does not require a person of extraordinary ability or achievement.
The substantive qualifications for an O-1 visa differ among the different classes of aliens. For example, to qualify as having extraordinary ability in the sciences, the applicant must demonstrate either a receipt of a major, internationally recognized award (e.g., the Nobel Prize) or must otherwise provide sufficient evidence of his or her extraordinary ability (this is a subjective analysis that will look to, for example, membership in prestigious organizations, published material, or high salary).
The issuance of O-1 visas is not subject to any annual quota. Nevertheless, there are many traps for the unwary to consider when applying for this visa. Please contact us if you are planning to apply for an O-1 visa and we will schedule an initial consultation to review your case.
B-1 Visas (Temporary Business Visitors)
A B-1 visa is designed for a person that seeks to enter the United States for the purposes of engaging in business other than “work”. The individual must have the intention to maintain his or her residency overseas.
Eligibility for the visa will thus turn on the distinction between “business” and “work”. Whether or not the individual is engaging in one or the other will depend on a multi-factor analysis, which looks both to the nature of the applicant’s international business and the nature of the activities that will be conducted within the United States.
As a practical matter, the holder of a B-1 visa can conduct a wide range of business activities in the United States— from negotiating commercial agreements to reviewing potential real estate projects for investment. In fact, residents of most foreign countries can often obtain a B-1 visa with relatively short notice.
EB VISAS (WORK-RELATED IMMIGRANTS)
An EB visa is available to potential immigrants who seek to enter the United States for certain work-related purposes. Unlike the other common business immigration options mentioned above, an EB visa grants the applicants and their immediate family members with a green card that establishes permanent residency. Thus, a holder of an EB visa could eventually apply for naturalization and become a citizen of the United States. Every year, approximately 140,000 employment-based immigrant visas are available to qualified applicants.
There are three categories of work-related immigration for the purposes of the EB visa: (1) “priority workers” (EB-1); (2) persons with “exceptional ability” and “advanced degrees” (EB-2), and (3) “professionals, skilled and unskilled workers” (EB-3). Thus, the applicant’s eligibility for an EB visa will depend on whether he or she satisfies the relevant criteria within one of the three categories described above. Note that the EB-2 and EB-3 visas generally require that the petitioner obtain a labor certification, which can be a cumbersome process. An applicant for an EB-1 visa does not need to obtain a labor certification. In addition, an applicant for an EB-2 visa may qualify for a waiver of the labor certification.
The EB visa is attractive because it offers permanent residence to qualified individuals, but the application process is complex and can often be burdensome. Therefore, it is not recommended for an individual to apply for an EB visa without the aid of an attorney. We are prepared to assist you throughout this process.
EB-5 VISAS (INVESTOR IMMIGRANTS)
A special category of EB visas, the EB-5 visa, is available to qualified individuals seeking permanent resident status on the basis of their investment and engagement in a commercial enterprise within the United States. As with the other EB visas, the EB-5 visa allows the holder to potentially qualify for U.S. citizenship.
Of course, getting an immigrant investor visa is a highly complex process. Among other things, an applicant must make a large capital investment — either $900,000 or $1.8 million — into a job-supporting project within the United States. The relevant threshold depends on whether the investment in being made in specially designated “targeted employment areas”. The investment can be made in a newly formed business or as part of the purchase or expansion of an existing business. In addition, about half of the 10,000 EB-5 visas are earmarked for individuals who apply under a special “Regional Center” pilot program.
Individuals seeking an EB-5 visa should contact a qualified attorney to review their case. The EB-5 visa has strict eligibility requirements whether any particular individuals satisfies these requirements must be analyzed on a case-by-case basis.