U.S. Business Visa Options: Which One is Best for you?
E-2 TREATY INVESTOR
- Non-immigrant visa
- Substantial sum of money put at risk to operate a business that is more than marginal, and the foreign national is here to direct the E-2 business.
- The E-2 business must be at least 50% owned by nationals of the same
- Limited dual intent
- The principal beneficiary may operate the business upon approval
- The spouse is eligible to apply for an employment authorization document (EAD)
- Unmarried children under 21 may study in the US
- Smaller amount of investment, as long as it is substantial enough and sufficient to operate the business (thus, business plan is crucial)
- Much quicker to process compared to EB-5, and premium processing is available
- Maximize use of funds (since E-2 may be granted for a much lower investment amount; use the rest of the fuds to invest in a TEA or non– TEA for green-card purposes)
- Gives the investor a chance to test the waters before investing the amount required for the EB-5 program
- No annual quota
- Some options available to process the green card
- Consider the L-1A option if the applicant’s country of nationality is not a treaty country and the applicant meets the L-1A requirements.
Business Plan PROCESSING AND PROCEDURE
- An applicant who resides abroad may apply directly to the Consulate by submitting the E-2 packet several weeks before the visa interview; no need for a petition to be previously filed and approved before applying for an E-2 visa at the U.S. Consulate.
- An applicant who is presently in the U.S. may apply for a change of status.
- Normal processing time to change to E-2 status is 3-4 months; premium processing reduces the processing time to 15 days; not that USCIS may issue a request for evidence (RFE); after submission of the RFE response, USCIS will issue its final decision.
ELIGIBILITY AND REQUIREMENTS
- Visa applicant must be a national of a treaty country.
- Funds must be substantial, “at risk”, and invested in an enterprise yielding more than marginal income
- Investor must show the path and legitimate source of funds, and full control over the funds.
- The E-2 enterprise must be at least 50% owned by U.S. individuals or entities have the same nationality as the treaty country.
EB-5 JOB CREATOR
- Immigrant visa
- The EB-5 program promotes economic growth in the U.S. through capital investment by foreign nationals in a new commercial enterprise. Participants can qualify for an EB-5 visa and eventually a green card, by investing either $500,000 in a Targeted Employment Area (TEA) or $1,000,000 in a non-TEA, so long as the investment creates at least 10 full-time U.S. jobs in either case.
- The foreign Investor becomes eligible to apply for a green card if he/she makes the required investment in a new business and creates 10 U.S. jobs as a result.
- The Investor’s spouse and unmarried children under 21 may also apply for and receive a green card as accompanying relatives.
- As long as the Investor has the funds to Invest, he/she does not need any specific language training, education, business background or professional experience
- The Investor is able to see a return on his/her financial investment in addition to living in the U.S. with family.
- The Investor plays an important role in promoting opportunity and economic growth in the U.S.
- Direct Investment Model
- The Investment can be in a TEA ($500,000) or non-TEA ($1 million)
- You must be an active (not passive) Investor
- Only directly hired employees count toward the 10– job requirements.
- Simpler than the regional center, with no USCIS approval process
- Regional Center Model:
- The investment can be in a TEA (500,000) or non-TEA ($1million)
- No need to run the business yourself
- “Indirect” jobs (e.g. Jobs created by related businesses and construction jobs of more than 2 years) count toward the 10-job requirement.
- Subject to USCIS approval and termination
- Should you invest in a TEA or non-TEA?
- Which part of the country and industry should you invest in?
- Is the project legitimate, and is the developer trustworthy and experienced?
- It’s better if the project developer, whether regional center or direct, has “skin in the game.”
- Make sure there is no danger of kids “aging out” by turning 21 before being admitted to the U.S. as a conditional permanent resident. (The Child Status Protection Act prevents most, but not all, of these situations)
- Request an expedited review of the 1-526 if the child is already close to 21.
- The EB-5 program is in a state of flux. Congress may change or abolish the regional center program and/or raise the investment amounts on or before Sept. 30, 2016.
PROCESSING AND PROCEDURE
- A successful applicant will be granted conditional residency initially.
(a) filing the EB-5 petition (processing time is 16-18 months; unlike the E-2 visa, there is no 15-day premium processing here; expedited processing is available only in rate situations); and
(b) Immigrant visa processing at the US Consulate abroad or adjustment of status if the applicant is in the US.
- To receive permanent residency, file an application to remove the condition within 90 days prior to the expiration of the 2-year conditional resident status; removal of condition entails proving the creation of 10 full-time jobs as a result of this new commercial enterprise.
- Only after approval of the EB-5 petition will the applicant and derivative beneficiaries become eligible to apply for an immigrant visa at the US Consulate or apply for adjustment of status if they are physically present with a valid immigration status in the US or otherwise eligible to adjust status
ELIGIBILITY AND REQUIREMENTS
- No requirement for a treaty between the US and the investor’s country of citizenship
- Must create at least 10 full-time jobs for qualifying U.S. workers (citizens or LPRs) within two years of admission to the U.S. as a conditional green-card holder.
- The investment must be in a New Commercial Enterprise (NCE), which is a for-profit entity established after Nov. 29, 1990 or before that date which was significantly restructured or expanded by 40% of employee size net worth.
- As an investor, you must prove that your funds were “obtained through lawful means.”
- The money you invest must be “at risk” – i.e., The funds must be committed, with no guarantee of return or redemption.
L1-A INTER COMPANY TRANSFEREE
- Non-Immigrant visa
- Intra-company transfer of executives or managers to work in the same capacity in a U.S. affiliate, branch, parent or subsidiary
- U.S. Business need not be the same business as the foreign entity as long as the relationship exists.
Allows dual intent
- The transferring executive or manager may work as soon as L-1A visa or change of status is approved.
- The derivative beneficiaries enter on an L-2 to join the L-1A principal.
- The L-2 spouse qualifies for an EAD.
- Unmarried children under 21 may study in the U.S.
- Unlike EB-5, the principal beneficiary is not required to create 10 jobs
- The L-2 spouse with an approved EAD may work anywhere; there are no limitations on location.
- There is NO annual quota on the L-1A visa granted and no wage minimums for the L-1A employee.
Green card process is possible through the EB(1)© program after one year in L-1A status
PROCESSING AND PROCEDURE
- The petitioning U.S. entity files and L-1A petition.
Normal processing time to change to L-1A status is 3-4 months; premium processing reduces the processing time to 15 days; note that USCIS may issue a request for evidence (RFE); after submission of the RFE response, USCIS will issue its final decision.
- Upon approval of the L-1A petition, the principal beneficiary who is in the U.S. may immediately assume managerial or executive duties.
- The beneficiary who is outside the U.S. may use the approved L-1A petition to apply for an L-1A visa to enter the U.S. and assume managerial or executive duties.
ELIGIBILITY AND REQUIREMENTS
- No treaty between the countries is required.
- The petitioning U.S. employer must have a corporate relationship (parent, affiliate, subsidiary or branch) with the foreign entity abroad where you have been employed as a manager, executive, or worker with specialized knowledge.
- The employee must (a) have been working for a qualifying foreign organization for at least 1 year during the three years prior to admission to the U.S.; and (b) be an executive or manager for an affiliate, branch, parent, or subsidiary of the same employer.
- There is a 1-year maximum stay for the qualifying employee setting up a new office. For all other employees, the maximum stay is 3 years.
- There must be enough space for a new office.
- The new office must be up and running within 1 year after the L-1A’s admission to the U.S. if requesting an extension of stay.
- After 1 year, the new office must support a manager—or executive-level job if you request an extension of stay.
The EB-1 is a preference category for United States employment-based permanent residency. It is intended for “priority workers”. Those are foreign nationals who either have “extraordinary abilities”, or are “outstanding professors or researchers”, and also includes “some executives and managers of foreign companies who are transferred to the US”. It allows them to remain permanently in the US.
ALIENS WHO CAN APPLY
The visa is granted to three types of aliens:
- Those with extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.
- “Outstanding professors and researchers” who “are recognized internationally for their outstanding academic achievements in a particular field”. They must also have “at least three years’ experience in teaching or research in that academic area, and enter the U.S. in a tenure or tenure track teaching or comparable research position at a university or other institution of higher education” plus other conditions.
- “Some executives and managers of foreign companies who are transferred to the U.S.” They need to have been employed, during the last three years, for at least one year outside of the US in a managerial position in the same company that is going to employ them in the US or in a related company. There are also other conditions.
Extraordinary Ability category
EB1 Extraordinary Ability green card application is in the employment-based immigration visa first preference (EB1 visa) category known as EB-1A. For EB1 extraordinary ability green card application or EB-1A immigrant visa application, the regular labor certification requirement is waived, and an immigration applicant can apply for an EB-1A extraordinary ability green card without a labor certification or a job offer from a U.S. employer. Thus, the EB1 extraordinary ability green card application has clear advantages for scholars, researchers, post doctoral research fellows, Ph.D. students, and other advanced degree professionals.
An alien applicant must meet 3 out of the 10 listed criteria below to prove extraordinary ability in the field:
- Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
- Evidence of membership in associations in the field, which demand outstanding achievement of their members
- Evidence of published material about you in professional or major trade publications or other major media
- Evidence of judging the work of others, either individually or on a panel
- Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
- Evidence of authorship of scholarly articles in professional or major trade publications or other major media
- Evidence that work has been displayed at artistic exhibitions or showcases
- Evidence of performance of a leading or critical role in distinguished organizations
- Evidence that of high salary or other significantly high remuneration in relation to others in the field
- Evidence of commercial successes in the performing arts
The major advantages of applying for aliens of extraordinary ability include: no labor certification is required for this EB-1 category; no job offer or permanent job position is required for aliens of extraordinary ability; and much faster to obtain a Green Card than the EB-3 or EB-2 immigration categories.
Outstanding Professors and Researchers category
The EB1 Outstanding Researcher or Professor immigrant visa classification (EB-1B, EB1-OR) is the employment-based first preference immigration. The EB-1B petition consists of Form I-140 and supporting documents to show that the alien beneficiary meets EB1 Outstanding Researcher or Professor criteria. The U.S. employer intending to employ a professor or researcher who is outstanding in an academic field may file a Form I-140 petition in such classification. Employer should file it for the alien employee.
For an EB1-OR petition, the petitioner should include documentation demonstrating the alien’s outstanding ability, and should also include a permanent job offer letter, as well as evidence of three years teaching or research experience.
The petitioner must include documentation of at least two of the six criteria listed below, and an offer of employment from the U.S. employer:
- Evidence of receipt of major prizes or awards for outstanding achievement
- Evidence of membership in associations that require their members to demonstrate outstanding achievement
- Evidence of published material in professional publications written by others about the alien’s work in the academic field
- Evidence of participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field
- Evidence of original scientific or scholarly research contributions in the field
- Evidence of authorship of scholarly books or articles (in scholarly journals with international circulation) in the field
Multinational Manager or Executive category
When an employer wishes to transfer an alien employee working abroad to a U.S. company as an EB1 Multinational Executive or Manager immigrant, a qualifying relationship must exist between the foreign employer and the U.S. employer. A qualifying relationship exists when the U.S. employer is an affiliate, parent or a subsidiary of the foreign firm, corporation, or other legal entity. To establish a qualifying relationship under the regulations, the petitioner must show that the foreign employer and the U.S. employer are the same employer, or related as a parent/subsidiary or as affiliates.
- The petitioning employer must be a U.S. employer.
- The employer must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation that employed the beneficiary abroad.
- The beneficiary must be employed in a managerial or executive position.
Managerial functions can also include management of an essential function of the organization, the beneficiary does not necessarily have a large number of direct reports.
A United States employer may file a petition on Form I-140 for classification of an alien as a multinational executive or manager. No Labor Certification is required for this classification. The prospective employer in the United States must furnish a job offer in the form of a statement that indicates that the alien is employed in the United States in a managerial or executive capacity. Such a statement must clearly describe the duties performed by the alien.
EB-1 applicants, unlike most EB-2 and EB-3 applicants, don’t have to go through the “labor certification” process. If they are in status in the US (for example, working on an O-1 visa) and are from a country for which EB-1 numbers are current, EB-1 applicants may concurrently file the I-140 immigrant petition and the I-485 application for adjustment of status (plus I-131 and I-765). Approval of the I-131 and I-765 grants the applicant a temporary employment authorization document and advance parole travel permission for the period during which the petition and application are being adjudicated.
Within this category, aliens with extraordinary ability (EB-1 section A) don’t have to demonstrate that they have an employer in the US; they only have to demonstrate that they will keep working in the field in which they have the extraordinary abilities. Most of the other EB-1 applicants (for example, multinational executives or managers and outstanding professors or researchers) will have to demonstrate that they will have an employer in the US.
Obtaining lawful permanent residence as an alien of extraordinary ability is a difficult task, for the USCIS in 8 CFR § 204.5(h) defines extraordinary ability as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor”. The applicant must produce evidence which satisfies at least three of the 10 criteria listed in the regulation. If the USCIS approves the I-140 petition the applicant will be granted adjustment of status, assuming no ineligibilities such as disqualifying criminal convictions.