Non-Immigrant Visas
The United States L1 visa is a non-immigrant visa which allows companies to operate both in the US and abroad to transfer certain classes of employees from its foreign operations to the US operations for up to seven years. The employee must have worked for a subsidiary, parent, affiliate or branch office of the applicantr US company outside of the US for at least one year out of the last three years.
There are two types of employees who may be sponsored for L1 visas:
Managers/Executives
The legal definition of management and executive roles for these purposes is quite strict, and a detailed description of the duties attached to the position will be required. In particular, the executive or manager should have supervisory responsibility for professional staff and/or for a key function, department or subdivision of the employer. Such personnel are issued an L1A visa, initially for a three year period extendible in two year increments to a maximum of seven years.
Employees with Specialized Knowledge
This category covers those with knowledge of the company's products/services, research, systems, proprietary techniques, management, or procedures. Staff in this category are issued an L1B visa, initially for three years extendible to a maximum of five years.
The H1B program allows workers in specialty occupations to work in the US for up to a total of six years. One of the things that makes this visa so desirable is that, unlike many other nonimmigrant visa categories, it is a "dual intent" visa. This means that a visa will not be denied simply because a person has intentions to become a permanent resident. The assumption is that if for some reason the permanent residency petition is denied, the person would still have the intention to return home.
Besides documenting that the position offered is in a specialty occupation and that the employee has the appropriate credentials for the job, the employer needs to verify that the H1B visa worker is being paid the prevailing wage for the work being performed and that employment of a foreign worker is not harming conditions for US workers.
H1B Visa Qualifying occupation categories are jobs in the fields of computer science, health care, university teaching, engineering, law, accounting, financial analysis, management consulting, architecture and scientific research positions.
The length of time that a worker can have an H1B visa is usually an initial period of up to three years. The initial H1B visa can then be extended one time for up to a combined total of six years.
Other regulatory provisions permit –
a) the employer to request a period of less than three years,
b) the employee to be employed on a part-time basis
c) the employee to work for more than one US Employer simultaneously.
Unless a qualified H1B candidate can get an offer of a new employment not subject to the “cap” requirement, the applicant should apply for it as soon as the very beginning of each fiscal year.
While more and more foreign students are pursuing education opportunities in the US, international students must satisfy the following requirements to be eligible for an F-1student visa:
a) Prove they have been accepted by a school for an Academic program, certificate or a degree course.
b) Demonstrate that English language skills are proficient enough to complete their studies if attending a college or university, or show that the school will provide them with adequate English language training.
c) Provide proof / evidence that they have adequate financial resources to pay for their school fees, materials, health insurance, transportation and living expenses.
d) Provide supporting evidence that they will return to their own country once they have completed their studies.
How to apply overseas:
a) Students requiring a new F-1 Visa are subject to the SEVIS I-901 fee before appearing at the U.S. Consulate or submitting the application in the US. Students may pay this fee on-line at www.fmjfee.com (remember to print the applicantr receipt)
b) Contact the nearest U.S. Embassy or U.S. Consulate to apply for and schedule an appointment /interview for the applicantr student Visa. The applicant will need the applicantr Sevis I-901 fee payment receipt. It is important that the applicantr plan early, since there may be a waiting period of a few weeks between the applicantr appointment and going to the interview.
The O visa is set aside for aliens of "extraordinary" ability in the sciences, arts, education, business or athletics, certain aliens accompanying or assisting those aliens, and their family members. The fundamental requirement for an O visa is to have reached the top of the profession or endeavor for which the alien seeks admittance into the United States. The beneficiary of an O visa may remain in the States until the event, project or activity for which the alien is admitted is completed. The initial period of stay can be sought for three years and thereafter one year increments may be sought to complete the activity, event or project. An employer must petition for the O alien; the petition must be submitted only after the employer consults with a peer group, labor organization, or management organization regarding the work to be performed and the alien's qualifications. In most cases the consultation takes the form of a written advisory opinion from a peer group.
The P visa is set aside for foreign athletes and entertainers.
For Athletes:
An athletic team can file petition for a foreign athlete, the team must have achieved international recognition in the sport. An athlete who will come to the US to compete in individual events rather than as a team must show that he or she is internationally recognized. The USCIS has defined “international recognition” as a “having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country.” The event the athlete is coming to the US to participate in must have a distinguished reputation and must require the participation of athletes and teams of international recognition.
For Entertainers:
An entertainer to obtain a P-1 visa, must be part of an entertainment group. Individuals cannot usually obtain a P-1 visa – the only exception is for people who are coming to the US to join a foreign entertainment group. The group must be internationally recognized as outstanding in the area, and have a sustained period of achievement. Also, the individual members must have a substantial relationship to the group, generally satisfied by at least one year. This requirement may be waived in exigent circumstances, and is not imposed on circus personnel, so long as the circus is of national recognition. The group must have been together for at least one year, and at least three-fourths of the members must have been in the group for at least a year.
The R-visa is for ministers of religion and full-time religious workers. The requirements for the R-visa are specific and may not be appropriate for many visitors even though their trip to the United States is for a religious activity. Visitors who do not qualify for R-visas may qualify for B-1/B-2 (business/tourism) visas.
To qualify for an R-visa, the applicant must:
a) be a member of a religious denomination having a bona-fide nonprofit, tax-exempted religious organization or affiliation in the U.S.
b) have been a member of the denomination for 2 years immediately preceding the application for visa
c) be entering the U.S. solely to carry on the vocation of a minister or to work full-time in a religious occupation for that denomination or affiliated organization.
Additionally, if the applicant was previously in the U.S. under an R-visa for 5 years, the applicant must have resided and been physically present outside the U.S. for one year immediately prior to the present application for an R-visa.
The applicant’s affiliated denomination must show that it:
a) possesses some form of ecclesiastical government
b) has a recognized creed and form of worship
c) has a formal code of doctrine and discipline
d) holds religious services and ceremonies in established places of worship attended by congregations.
Treaties between United States and many countries allow foreign persons to come to the United States to conduct trade (import/export activities) or to manage investments. Unlike the Immigrant Investor visa there is no fixed dollar amount for the investment. The E-1 visa is used to conduct trade between the United States and the country of nationality. The E-2 visa is used for overseeing investments in the U.S.
BASIC REQUIREMENTS FOR AN E VISA:
1. A Treaty of Commerce and Navigation or a Bilateral Investment treaty must be in effect between the U.S. and the country of nationality of the foreign company or investor.
2. The company or the individual engaging in trade or investment in the U.S. must be of the same nationality as the treaty country.
a. The nationality of an individual is the country of citizenship.
b. The nationality of a corporation or partnership is determined by the citizenship of the individuals having controlling interest (stock ownership or partnership interest in the business entity). Controlling interest means at least 50% ownership. For treaty purposes, citizens of the treaty country who have acquired U.S. permanent residence status can not be counted in determining the 50% ownership. However, citizens of the treaty country who are in the U.S. in E visa status can be counted in determining the 50% ownership.
3. The employee or principal who is applying for E visa status must have the same nationality as the treaty entity. Spouses and children of the employee or principal may obtain derivative E status without being a citizen of the treaty country.
ADDITIONAL REQUIREMENTS FOR E-1 VISA
1. Substantial Trade
The company must be involved in substantial trade principally between the U.S. and the treaty country.
The definition of trade, for purposes of the E-1 visa, has broadened considerably. Previously, the E-1 visa was only available to businesses involved in the exchange, purchase or sale of tangible goods. Now, E-1 visa status is also available for businesses involved in the exchange, purchase, or sale of services as well as tangible goods.
Accordingly, businesses involved in services such as advertising, consulting, accounting, engineering or law may qualify for E-1 status. Also, companies involved in technology transfers may qualify for E-1 status if title to the technology passes from one company to another.
No specific minimum dollar amount is required to meet the requirement of substantial trade. Instead the dollar amount and the number of transactions are taken into account as well as the requirement that the trade be continuous. A single large transaction will not qualify while numerous small transactions may.
For the trade to be considered principally between the U.S. and the treaty country more than 50% of the dollar volume of the international trade must be between the U.S. and the treaty country.
2. Principal Trader
The person who is accorded E-1 visa status must be coming to the U.S. as the principal trader or in a supervisory or executive position or must have "skills which are essential to the successful operation of the enterprise".
ADDITIONAL REQUIREMENTS FOR E-2 VISA
1. Substantial Investment
2. There is no specific dollar amount which must be invested to meet the "substantial" requirement but the investment must meet one of two tests:
a. It must represent a significant proportion of the total value of the business enterprise (this test is usually applied to investments in existing businesses), or
b. It must be sufficient to establish a profitable and viable business of the type contemplated.
3. The investment must be in an active business.
4. Investment in property held for future appreciation, bank deposits and investments in stocks and securities would not qualify for the E-2 visa. The investment must be in an enterprise which produces some service or commodity.
5. The investment should create job opportunities for U.S. workers.
6. While it is preferable to have the U.S. workers hired at the time of application for the E-2 visa, reasonably achievable projections of jobs that will be created is often sufficient.
7. The E-2 visa applicant must play a key role in the operation of the business.
8. The visa applicant must either be the investor who is coming to the U.S. to develop or direct the investment or must be a manager or a highly trained employee with special skills necessary for the development of the investment.
STATUS OF FAMILY MEMBERS
Family members (spouses and unmarried children under 21) of the principal E visa employee may obtain derivative E visa status which allows them to live in the U.S. and attend school. Family members are not authorized to work unless they independently qualify for a visa or have a work authorization.
DURATION OF STAY IN THE U.S.
E visas are generally issued for four or five years. E visa holders are admitted to the U.S. for two years and extensions of stay may be granted for up to two years at a time. Extensions are generally unlimited as long as the trade or investment continues. An E visa may often be reissued for an additional five years by the State Department Visa Office in Washington D.C. In this event it is not necessary to return to the home country to renew the visa.
K visas are issued to two groups of people: 1) U.S. citizens' fiancés who are outside the U.S. (issued K-1 visas), and 2) U.S. citizens' spouses who are outside the U.S. (issued K-3 visas). The minor children of such fiancés or spouses who will accompany them to enter into the U.S. may apply for a "K-2" or "K-4" visa respectively. The purpose of the K-1 visa is to allow the alien fiancé who lives outside the U.S. to travel into the U.S. to marry the citizen fiancé.
The purpose of the K-3 visa is to promote family reunion and serves as a temporary remedy for the long delayed family based immigration petition process. It allows the alien spouse to stay in the U.S. while waiting for the result of the pending immigration petition. The alien spouse may obtain work authorization during the waiting period.
The "B" Visitor Visa is a nonimmigrant visa for persons desiring to enter the United States temporarily for business (B-1), or temporarily for pleasure (B-2).
The presumption in the law is that every visa applicant is an intending immigrant. Therefore, applicants for visitor visas must overcome this presumption by demonstration that.
The purpose of their trip is to enter the U.S. for business or pleasure;
That they plan to remain for a specific, limited period;
That they have a residence outside the U.S. as well as other binding obligations which will insure their return abroad at the conclusion of the visit.
The North American Free Trade Agreement (NAFTA) established a special 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".
I. Benefits of the TN Visa
A. Canadian nationals may obtain the NAFTA visa at the border. They do not require prior petition approval by the U.S. Citizenship and Immigration Services (USCIS).
B. Canadian and Mexican professionals can maintain NAFTA visa status indefinitely by requesting extensions based upon their qualifying professional activity.
C. The applicant are entitled to request TD dependent visa status for the applicantr spouse and children under the age of 21. The applicantr dependents may attend school as long as they continue to qualify under the TD visa classification criteria.
D. The applicant can freely travel in and out of the U.S. provided the applicant have a valid TN status.
II. Requirements for the TN Visa
To be eligible for a TN visa, the applicant must prove that:
A. The applicant are a Canadian or Mexican citizen
B. The profession is on the NAFTA list
C. The applicant have a valid job offer from a U.S. employer
D. The applicant hold the required licenses, degrees and/or experience to perform the job offered.
E. The applicant intend to depart the U.S. on completion of the applicantr authorized stay.
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