Work Visas

E-2 Non-Immigrant Investor

E-2 8 INA 101(a)(15)(E); 8 C.F.R. §214.2(e)

The E-2 nonimmigrant classification allows a foreign 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.

https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html

This visa allows non-immigrant investors to live and work in the U.S. based on a qualifying Investment. It requires an E-2 treaty between U.S. and the home country, allowing investors or their managers or essential employees to work in the U.S.

•  The investor or employee must be a citizen of a country with an E-2 Treaty.
• U.S. company must be at least 50% owned by foreign nationals or company with nationality from the treaty country. Co-owners who are LPR’s, or US citizens with dual nationality don’t count towards the 50%.
• The investment must be substantial — $150K minimum but varies based on the needs of the company.
• The U.S. business must be up and running or close to opening its doors.
• The U.S. business must show a business plan to hire U.S. workers over time. No quota on the number of U.S. workers is required.
• A visa from the U.S. Consulate is usually for 3 to 5 years, based on reciprocity agreement.
• US Custom Border Protection (CBP) gives an I-94 at port of entry for 2 years at a time. There are no quotas and no limit on renewals.
• An E-2 visa spouse can apply for an Employee Authorization Document (EAD).

You can morph an E-2 into an EB-5 if, over time, you have a cumulative investment of $1M and 10 new full-time jobs. Or you can do it with $500K/10 new full-time jobs, if the job creating enterprise is in a Targeted Employment Area.

L-1 Intra-Company Transferee (L-1A Intracompany Transferee Executive or Manager) L-1B:  Intracompany Transferee Specialized Knowledge)

An L-1 visa is used to transfer a key employee from the overseas company to a U.S. parent, subsidiary, or affiliate.

• An L-1A visa is for an executive or high-level manager – 7 years maximum for L-1A. An L-1B visa is for a specialized knowledge worker whose skills and knowledge about company operations cannot be easily found in the U.S. – 5 years maximum for an L-1B.
• For both the L-1A and L-1B visas, the foreign national must have worked for overseas affiliate for at least 1 year during the last 3 years
• The foreign national must show that the foreign company owns at least 51% of the U.S. company or vice versa or that a common owner controls both. Control is key.
• An L-2 spouse can apply for an EAD.
• A foreign national with an L-1A visa can apply for I-140 EB-1 multinational manager after one year, if strong merits present. Then they can file for an Adjustment of Status. Concurrent filing is not recommended.

Business Relationship

For purposes of L classification, ownership and control are the factors for establishing a qualifying relationship between business entities. The United States and foreign businesses must be legal entities.

In the United States, a business is usually in the form of a corporation, partnership, or a proprietorship.

• Ownership. Ownership means the legal right of possession with full power and authority to control.
• Control. Control means the right and authority to direct the management and operations of the business entity.

Qualifying Organizations For an L-1 Visa

The petitioner is required to identify each of the qualifying organizations as one of the following business entities:

(A) Parent. Any business entity which has subsidiaries is a parent. However, a subsidiary may own other subsidiaries and also be a parent, even though it has an ultimate parent.

(B) Branch. An office or operating division of the same employer which is merely housed in a different location and is not established as a separate business entity is considered a branch.

(C) Subsidiaries. The Service recognizes only three situations to constitute a subsidiary relationship:

(1)  Where a parent directly or indirectly owns more than half of the entity and has control;

(2)  Where a parent directly or indirectly owns 50% of a 50-50 joint venture and has equal control and veto power. The 50-50 joint venture can be owned and controlled by only two legal entities. All other combinations of a joint venture are not qualifying as a subsidiary;

(3)  Where a parent directly or indirectly owns less than half of the entity, but has control because the other stock is widely dispersed among minor shareholders. This can happen, for example, when an individual or company acquires sufficient shares of a publicly-held company to be able to nominate and elect the board of directors.

(D) Affiliate. Subsidiaries are affiliates of each other. The affiliate relationship is due to the ownership and control of both subsidiaries by the same legal entity. Affiliation also exists between legal entities where an identical group of individuals own and control both businesses in basically the same proportions or percentages. Associations between companies based on factors such as ownership of a small amount of stock in another company, exchange of products or services, licensing or franchising agreements, membership on boards of directors, or the formation of consortiums or cartels do not create affiliate relationships between the entities for L purposes.

L-1 Intra-Company Transferee (L-1A Intracompany Transferee Executive or Manager)

General Qualifications of the Employer and Employee

To qualify for L-1 classification in this category, the employer must:

• Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and
• Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1.  While the business must be viable, there is no requirement that it be engaged in international trade.
• Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

To qualify for an L-1 the named employee must also:

•  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
•  be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.

Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.

Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization.  It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.  See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for complete definitions.

–          https://www.uscis.gov/working-united-states/temporary-workers/l-1a-intracompany-transferee-executive-or-manager

Period of Stay for an L-1A Classification

• Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.
• All other qualified employees will be allowed a maximum initial stay of three years.
• For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years

L-1B:  Intracompany Transferee–Specialized Knowledge

The L-1B classification is for specialized knowledge worker whose skills and knowledge about company operations cannot be easily found in the U.S. It has a maximum of 5 years.

Specialized knowledge refers either to special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (See 8 CFR 214.2(l)(1)(ii)(D)).

L-1B

Blanket Petitions

Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition.  Eligibility for blanket L certification may be established if:

• The petitioner and each of the qualifying organizations are engaged in commercial trade or services;
• The petitioner has an office in the United States which has been doing business for one year or more;
• The petitioner has three or more domestic and foreign branches, subsidiaries, and affiliates; and
• The petitioner along with the other qualifying organizations, collectively, must meet one of the following criteria:

o  Have obtained at least 10 L-1 approvals during the previous 12-month period;

o  Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or

o   Have a U.S. work force of at least 1,000 employees.

•  In order to qualify under the blanket petitioning process, the employee having specialized knowledge must also be a professional.  See 8 CFR 214.2(l)(1)(ii)(E).

Period of Stay L-1B

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For all L-1B employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.

Family of L-1 Workers

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.

If these family members are already in the United States and seeking change of status to or extension of stay in L-2 classification, they may apply collectively, with fee, using Form I-539, Application to Extend/Change Status.

Spouses of L-1 workers may apply for work authorization by filing a Form I-765, Application for Employment Authorization with a fee.  If approved, there is no specific restriction as to where the L-2 spouse may work.

Non-Immigrant Visas (NIV Visas)

WhendoinganNIVanalysis,beveryintunewiththeindividual’snationality.Somevisas are specifically tied to that: i.e. TN (Canada/Mexico), H-1B1 (Singapore/Chile), E-3 (Australia), E-2 (select countries), WT/WB (visa waiver),etc.

H-1B

This is a work authorization for certain college-degreed professionals, who must have college degree in a field related to the job offer. The position must include practical application of theoretical knowledge, also known as a “specialty occupation.” Common H-1B occupations include software developers, engineers, scientists, and financial analysts.

The employer:

• Must comply with Department of Labor (DOL) prevailing wage and pay same wages as U.S. workers receive or prevailing wage, whichever is higher. The “required wage” is the higher of the DOL prevailing wage or the actual wage paid to other U.S. workers doing the same job at the company.
• Mustplacepostingnoticeintwoplacesintheworkplaceforatleast10business days and file a Labor Condition Application (LCA) with DOL.
• Must maintain a public access file with the signed LCA and employer attestations of H-1B employer obligations in a file cabinet for the entire H-1B period and then for 1 additional year. The foreign national can only work for sponsoring employer, but can transfer employment with new H-1B visa petition.

The visa is good for 3 years and renewable for 3 additional years, for 6 years maximum.

The visa can extend beyond Year 6 if PERM labor cert pending more than 1 year (by the end of the 6-year H-1B clock) or has an approvedI-140.

AC-21 7-year extension – allows 1-year increments with PERM pending

AC-21  3-year extensions – if have approved PERM and approvedI-140

H-1B visa filings are subject to an annual quota of 85,000 visas, and the quota is quickly used up each year. U.S. Masters has slightly higher chance of getting into quota since 20,000 visas set aside for them and then will also be considered for regular H-1B quota of 65,000 as well.

Exemptions from quota include extensions with same company, the transfer to another company, and petitions filed by universities, nonprofit organizations affiliated with a university and non-profit research organizations.

For the first H-1B petition, file on April 1 for a start date of October1.

A company can sponsor one of its major shareholders for anH-1B if the company has a Board of Directors with authority to terminate the shareholder’s employment. They need to show bona fide employer – employee relationship.

H-1B Portability: For someone already in H-1B status, new employer can file petition and foreign national can start once an I-797 receipt notice has been received

If employer will move employee to another location outside the Metropolitan Statistical Area (MSA), must file a new LCA and an amended petition.

H-4spouse cannot apply for an EAD if PA has approved an I-140 or if the PERM is pending more than a year.

If employer terminates the H-1B employment early, must offer return airfare back to their home country.

Layoff: H-1B has no official grace period once laid off, but USCIS uses 30-day unofficial grace period in granting Extension of Status (EOS)or else it will require consular processing.

H-1B1: H-1B1Singapore/Chile Free Trade Agreements

Singapore and Chile citizens can obtain work authorization with a U.S. company. The criteria are the same as for H-1B specialty occupation, college degree, etc. Admission is for 1 year at a time. There is no limit on renewals. The annual quota is never reached. Be careful to track LCA expiration, I-94 expiration, and visa expiration. Must have valid LCA to work. The H-1B1 spouse not eligible for a work permit.

E-3 Australians

This visa allows Australian citizens to obtain work authorization with a U.S. company. The criteria is the same as for H-1B specialty occupations, college degree, etc. Applicants apply at AMCON in Australia. Don’t file with USCIS as it has no Premium Processing and the 240-dayautomaticextensionofworkauthorizationdoesn’tapply. The visa is valid for 2 years. There is no limit on renewals. Be careful to track the Labor Condition Application (LCA) expiration, I-94 expiration, and visa expiration. Must have valid LCA to work. Spouse can obtain an EAD.

TN Visa: NAFTA Agreement with Canada and Mexico

The foreign national must have Canadian or Mexican passport. This is based on North American Free Trade Agreement (NAFTA) between U.S., Canada and Mexico. The occupation must be on the NAFTA list. Common TN occupations include computer systems analysts, engineers and management consultants.

Canadians apply at U.S. border or can apply with USCIS and then show I-797 to CBP and receive I-94.  Canadians receive three yearI-94.

Mexican citizens apply at AMCON in Mexico and receive 1 year visa. But CBP can issue 3-yearI-94. There is no limit on extensions. The TN spouse (TD) cannot work.

USICS I-9 Issues/Audit

Form I-9 was created as part of IRCA in1986. You can only give to an employee after they accept a job offer (otherwise potential discrimination issue). The employee must fill out and sign Section 1 on or before first day of hire. The employee must show the employer original work authorization documents. Employee gets to select work authorization documents – one from List A, or one from List B and List C.

The work authorization documents must be valid at the time of hire.

The employer fills out Section 2 and signs by Day 4 (best if Day 1). It must be same person who viewed original work authorization documents.

It is recommended that the employer photocopy work authorization documents and attach them to I- 9, but not required.

For USC’s and LPR’s, if documents subsequently expire, don’t need to re-verify as long as valid at time of hire.

For foreign nationals working with EAD or work visa, must re-verify on or before expiration date.  Re-verify in Section 3.

Employer self-audit: Only the employee can amend Section 1. Only the employer can amend Section 2 or 3.

Technical errors – In audit, ICE will give employer opportunity to fix.

Substantive errors- typically $1,000 fine per I-9.

Statute of Limitations: employer liable for substantive errors for 5 years after correction.

Retention Period: Keep I-9’s throughout employment and for 3 years after termination.

Social Security mis-match letter from any government agency: Puts employer on constructive notice that employee may not be work-authorized. Employer should investigate and absent typo, send employee to SSA to get SSN verification letter.

InCalifornia,ifemployeewasworkingwithfalsedocumentsandhassincelegalized with EAD or LPR status, then employer cannot terminate for the prior mis-representation of name, SSN, and documents.

E-Verify

E-Verify: optional unless employer is a federal contractor or a State mandates it for employers within that State.

E-Verify is only for new hires, unless the employer is a federal contactor, then can useonexistingemployeesworkingonthecontract,orallexistingemployees.