We pride ourselves on having an immigration practice that provides timely cost-effective strategies for securing visas for individual, as well as the owners and employees of our business clients. We offer a practice approach designed to most efficiently achieve the best outcome for our clients, based upon an analysis and proposals tailored to a client’s needs.
Relevant Visa Categories
There are several ways in which foreign individuals can enter the U.S. for business purposes. For short stays, citizens of 38 countries are entitled to enter the country via a visa waiver program for stays up to ninety (90) days for business purposes. If the visa waiver program is not available, then an application can be made for a B1 temporary business visitor visa which is for stays for business purposes up to six (6) months with extensions possible up to one year. These are routinely and promptly granted.
For longer stays up to five (5) years, the visa generally utilized is a L-1 intercompany transfer visa which permits an individual who has previously been employed by an affiliate or subsidiary of a U.S. company to transfer to employment in the U.S. It is a non-immigrant visa and the individual is expected to eventually return to their home country. The L-1 is a non-immigrant visa and permits a stay of one year initially but is not in itself a pathway to a green card and a permanent residency.
The H1B visa, by which some companies are able to secure visas for specialty workers who are foreign citizens is also commonly used. The H-1B is a visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations (such as computer technicians). A specialty occupation requires the application of specialized knowledge and a bachelor’s degree or the equivalent of work experience. The duration of stay is three years, extendable to six years; after which the visa holder may need to reapply. Laws limit the number of H-1B visas which are issued each year. A relatively few people will be eligible for the O-visa category, a non-immigrant visa – for individuals of extraordinary ability in the science, education or business, but it has several advantages for those who qualify.
EB-1 and EB-2 classifications are immigrant (green card) visas and are available only to persons of extraordinary ability and achievement. The EB-1 has three subcategories as follows:
A. Extraordinary ability;
B. Outstanding professor or researcher; or
C. Manager or executive.
The EB-2 category requires the applicant to be an advanced degree holder, and to be a person of exceptional ability, as well as to have an employer sponsor or to demonstrate that it is in the national interest of the United States to permit that person to come to the U.S and permanently relocate to the United States. While the U.S. Citizenship and Immigration Services (USCIS) has not established specific criteria for approving National Interest Waiver petitions, many USCIS examiners take the following general factors into consideration. Among others:
- Improving the U.S. economy;
- Improving wages and working conditions of U.S. workers.
In addition to providing evidence of an advanced degree or exceptional ability and meeting other criteria, an applicant must also meet the three National Interest Waiver criteria below in order demonstrate that it is in the national interest that USCIS waive the requirement of a job offer and thus, the labor certification that there are not sufficient US workers able, willing, qualified and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers:
Criteria for National Interest Waiver
- The proposed endeavor has both substantial merit and national importance.
- You are well positioned to advance the proposed endeavor;
- It would be beneficial to the United States to waive the requirements of a job offer and thus, the labor certification.
The EB-5 visa provides a resident visa to investors and entrepreneurs who invest a minimum of $1.8 million USD. A reduced investment minimum of $900,000.00 is permissible in Targeted Employment Areas.
The Current Immigration Climate
President Trump has made it a cornerstone of his administration to be opposed to immigration. This initially took the form of numerous policies and actions to limit illegal immigration but more recently, has shown itself to include opposition to legal immigration such as the business visas outlined above. Citing the current Corona virus crisis on April 22, 2020, the President issued an Executive Order restricting most immigration, including some legal immigration, would be suspended for sixty (60) days. No green card (immigrant visas) will be granted during this period. Similarly, other programs, such as permitting expedited action on L-1 visa with a payment of additional fee, have been suspended. Announcements have also been made that the ability of spouses to work as a normal feature of certain of these visas will be suspended.
While these obstacles to immigration are unprecedented, virtually every major policy in this area continues to not only permit but encourage those individuals who are perceived as “the best immigrants.” For instance, it appears that an individual who can meet the strict requirements of the EB-1, EB-2 or EB-5, will continue to be welcome for the foreseeable future.