Non-Immigrant (Temporary) Visas

The Following visa categories permit the visa holder to work in the United States.Family members, such as spouse and children under 21, may accompany the principal visa holder,but are not granted work authorization, unless independently qualified.

H-1B VISA

Specialty Worker/Professional

There must be a U.S. employer to 'sponsor' the Professional or Specialty Worker.  The visa may be granted for an initial three year period.  An extension for a further three years is available.  Once an employee has been in the United States for six years, he or she must spend one year outside the U.S Before becoming available for another H-1B visa.

The following requirements must be met:

• The U.S. employer must confirm that it will pay the 'prevailing  wage'.

• The job offer must be for a professional position.   The Immigration Service regulations define this as one which requires at least a U.S. bachelors degree, or it's equivalent as a minimum requirement.

• The foreign employee must have a degree in a subject related to the position offered.

L-1 VISA

Intra Company Transferee

This category also requires a company to 'sponsor' the foreign worker.  The visa may be granted for an initial period of one to three years. A one year visa is issued if the U.S. business is 'new'.  Extensions are available for a maximum of five or seven years depending on the L-1 classification.

The following requirements must be met:

• Foreign employee must be a manager or executive,  or have 'specialized knowledge' about the company products, services, research or equipment.

• Employee must have worked for the foreign company for one full year out of the past three in a managerial, executive or 'specialized knowledge' position.

• There must be a qualifying relationship between the foreign and U.S.  companies.  Only those companies which meet the U.S. Immigration Service's definitions qualify.

• The foreign company must continue to operate overseas whilst the foreign employee is in the United States with and L-1 visa working for the U.S. operation.

• A 'specialized knowledge' L-1 visa may be approved for a maximum of 5 years.

An L-1 visa holder may be eligible for streamlined processing for an immigrant or permanent resident visa under the priority worker category.

E-1 & E-2 VISAS

Treaty Traders and Investors

Both visa categories require a treaty between the United States and the Treaty Trader or Treaty Investor's country of nationality.

The E-1 Treaty Trader category is generally used by companies engaged in 'substantial' trade (i.e., more than half of its trade) between the U.S. and the country of nationality.

The E-2 treaty Investor category is generally used to establish a new business entity in the United States by making a 'substantial' investment.   U.S. State Department guidelines do not specify a minimum dollar amount.   However, sums less than $100,000 may not be sufficient.

The following requirements must be met:

• The individual or business in the U.S. must have the same nationality as the Treaty county.  For example a Frenchman could not use the U.K./U.S.  Treaty.

• More than 50% of the trade must be between the U.S.   and treaty country for E-1 visa purposes

• More than 50% of the U.S. company must be owned by treaty nationals for E-2  visa purposes.

• Investment funds must not be borrowed and must be 'at risk'.  Passive investments in real estate do not qualify.

• The individual must be the principal trader or investor, or hold an executive or managerial position.  In the case of a new business, employees with essential skills necessary for start-up operations may be granted E visas.

• E visas may be issued for periods ranging from one to five years.  Each Treaty Trader or Treaty Investor visa application is determined on a case-by-case basis.

• Upon entering the United States with and E visa, the applicant is granted a 12 month stay by the immigration service.  Thereafter, extensions may be obtained provided the business continues to operate.

Immigrant (Permanent) Visas

Immigrant visas confer Lawful Permanent Resident status on the foreigner.  A Lawful Permanent Resident is entitled to live and work in the United States without restrictions.  Permanent Resident status is generally obtained in either of two ways: (1) through family immigration (not covered here), or (2) through employment sponsored immigration.

Employment Sponsored Immigration

Immigration sponsored by an employer entails a two step process.  Labor Certification must be obtained from the U.S. Department of Labor, followed by the Immigrant Visa process through the U.S. Immigration and Naturalization Service.

»Labor Certification

A U.S. employer must show the following

• The foreign worker's skills and abilities are required;

• The employer is offering the 'Prevailing wage';

• There are no U.S. workers available to fill the position.

»Priority Workers

Multi-National managers and executives transferring to the United States may utilize streamlined processing thereby eliminating the Labor Certification process.

The following requirements must be met:

• The employee must be employed by the foreign company for one full year out of the past three as a manager or executive.

• The U.S. and foreign companies must meet the Immigration Service's definitions of parent, subsidiary or affiliate.

Immigrant Investor Visas

This category of Permanent Residence visa was introduced in 1990.  The following requirements must be met:

• An investment must be mad in an enterprise which will create ten jobs for U.S. workers (excluding the investor and his family);

• The investment is usually made in a newly created enterprise;

• An investment may be made in an existing business which then must be re-structured to form a new commercial enterprise; or

• An investment may also be in an existing enterprise in which case either the net worth or the number of employees must be increased by 40%;

• The visa petition with all required supporting documentation is submitted to the Immigration and Naturalization Service in the U.S.   Upon approval, the alien, spouse and unmarried children under 21 are granted ;conditional' residence status for two years.  Prior to the expiration of the two year period, the investor must petition the Immigration Service to remove the condition by showing that all immigrant investor requirements regarding the level of investment and creation of jobs have been met.