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Temporary Non-Immigrant Working Visas

L1 Visas and Nonimmigrant Status: The L-1 visa and nonimmigrant status allow for the intracompany transfer of employees of foreign entities to U.S. parent, affiliate, and subsidiary companies. In this way, key employees may contribute executive, managerial, or specialized knowledge skills to U.S. business, and companies may ensure that their international operations are aligned in objectives and processes.

 

L-1A Intracompany Transferee Executive or Manager: L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company that does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.

The alien employee must have worked abroad for the overseas company for a continuous period of one year in the preceding three years. Furthermore, the alien to be transferred must have been employed abroad in an executive or managerial position, and he must be coming to the U.S. to fill one of those capacities. In this category, the alien must have an intent to depart the U.S. upon completion of his authorized stay; however, he may also pursue permanent residence at the same time.

L-1B Specialized Knowledge category: This category contains many of the same requirements as the L-1A category and allows the beneficiary to remain in the U.S. for a limited period of up to 5 years. The alien must have “specialized knowledge;” which is defined as special knowledge of the company product, service, research, equipment, techniques, management, or other interests and its application in international markets; or have an advanced level of knowledge of processes and procedures of the company.

L-2 visa may be issued to an L-1 holder’s spouse and children under twenty-one years of age. L-2 holders are considered to be the dependents of L-1 holders. L-2 holders may be entitled to enter and remain in the United States for the duration of the L-1 holder’s authorized stay. Their duration of valid stay is the same as that of the L-1 holder. L-2 holders are permitted to attend school on their L-2 status, and they do not have to be full-time students. L-2 holders are not permitted to work unless they are independently qualified and thereby eligible for work authorization.

E Visas: The E visa classification allows foreign nationals to visit and reside in the United States in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign national’s country of citizenship or nationality. There are two subsets of E visas classification: The E-1 is for “Treaty Traders,” and the E-2 is for “Treaty Investors.”

E1 Treaty Traders: As stated by U.S. Citizenship and Immigration Services (USCIS) guidance: “the enterprise (company, corporation, etc.) must be engaged principally and substantially in trade between the U.S. and the treaty country”. Specifically, E-1 treaty traders may be admitted “solely to carry on substantial trade, including trade in services or trade in technology, principally between the United States and the foreign state of which he is a national.” When adjudicating E-1 visa application, consular officers are directed to confirm that:

  • “The requisite treaty exists;”
  • “The individual and/or business possesses the nationality of the treaty country;”
  • “The activities constitute trade;”
  • Such trade is “substantial;”
  • Such trade is “principally between the United States and the treaty country;”
  • The visa applicant, “if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States;” and
  • The visa applicant “intends to depart the United States when the E-1 status terminates.”

In addition to being “the actual owner of a qualifying enterprise,” an E-1 nonimmigrant may be “an employee of such enterprise working in an executive or supervisory capacity or in capacity which requires special qualifications essential to the operations of the enterprise,” as long the foreign national has “the same nationality as the principal employer,” as discussed below.

As stated by the Department of State, “there must be an actual exchange, in a meaningful sense, of qualifying commodities such as goods, money, or services to create transactions considerate trade.” Department of State guidance provides a three-prong test for determining what constitutes trade:

  • Trade must constitute an exchange;
  • Trade must be international in scope; and
  • Trade must involve qualifying activities.

Documentation suggested by various governmental sources over the years as appropriate evidence of the trade includes:

  • Negotiated contracts;
  • Bills of lading or invoices to indicate that the goods or services move from one country to another;
  • Customs clearances, warehouse receipts, and sales receipts;
  • Letter of credit;
  • Trade brochures;
  • Insurance papers and documenting commodities imported;
  • Carrier inventories;
  • Correspondence showing trading activities;
  • Purchase orders;
  • Orders for good shipped or awaiting shipment;
  • Spreadsheet detailing “every qualifying transaction of international trade between the treaty countries during the last calendar year” and stating the date, the invoice number, and the dollar value of the transaction;
  • Copies of air-bills, shipping receipts, or shipping invoices to demonstrate transfer of the goods or services between the two countries;
  • Calculations of the total international trade undertaken by the treaty investor business;
  • Financial statements;
  • Copy of the most recent U.S. Tax Return filed with the internal Revenue Service (IRS);
  • Copy of the business plan;
  • Copies of confidential agreements with clients or customers;
  • Copies of consultancy agreements; and
  • Copies of documentation discussing projects, processes, or technologies in development and/or in patent review.

Items that may be traded “include but are not limited to goods, services, international banking, insurance, monies, transportation, communication, data processing, advertising, accounting, design and engineering, and management consulting. Tourism, technology and its transfer, and some new-gathering activities,” as well as “tourism and other intangible items with intrinsic value” are also included.

The E-1 visa classification is inappropriate for trade that entails only “a single transaction, regardless of how protracted or monetarily valuable the transaction.” Rather “substantial trade is an amount of trade sufficient to ensure a continuous flow of international trade items between the United States and the treaty country,” through “numerous transactions over time”. Stated another way; “substantial trade does not necessarily refer to the monetary value of the transaction but rather to the volume of trade.”

As stated by the regulations, “principal trade between the United States and the treaty country exists when over 50 percent of the volume of international trade of the treaty trader is conducted between the United States and the treaty country.” The trade must be “conducted by the legal ‘person’ who is the treaty trader,” which may be “an individual, a partnership, a joint venture, a corporation (whether a parent or subsidiary corporation), etc.

 

E2 Treaty Investors: An E-2 treaty investor may be admitted to the United States “solely to develop and direct operations of an enterprise in which he is actively in the process of investing, a substantial amount of capital.” The U.S. enterprise must be a bona fide. Each of these requirements is discussed in turn, with the distinction between making an actual investment and being in the active process of investing, discussed below. When adjudicating an E-2 visa application, consular officers are directed to confirm that:

  • “The requisite treaty exists;”
  • “The individual and/or business possess the nationality of the treaty country;”
  • The visa applicant “has invested or is actively in the process of investing;”
  • The enterprise “is a real and operating commercial enterprise;”
  • The visa applicant’s investment is substantial;
  • The visa applicant’s investment is more than a marginal one solely for earning a living;
  • The visa applicant is in a position to develop and direct the enterprise;
  • The visa applicant, who is an employee, “is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States,” and
  • The visa applicant “intends to depart the United States when the E-2 status terminates.”

 

Stated simply, the investment must be for “a commercial enterprise, thus it must be for profit.” For this reason: “E-2 investor status shall not, therefore, be extended to non-profit organizations.”

The E-2 treaty investor must have already invested or be “actively in the process of investing” capital for a U.S. enterprise. The regulations define investment as “the treaty investor’s placing of capital, including funds and other assets (which have not been obtained, directly or indirectly, through criminal activity), at risk in the commercial sense with the objective of generating a profit.” The following are also requirements:

  • The investor must possess and control funds;
  • The investor must put the investment capital at risk; and
  • The investor must irrevocably commit the capital to the E-2 enterprise.

 

The DOS has stated the following regarding the scrutiny of the investment, and the practitioner may wish to convey the sentiments to clients who question the need for extensive evidence of the investment: “The rules regarding the amount of funds committed to the commercial enterprise and the character of the funds, primarily personal or loans based on personal collateral, are intended to weed out risky undertakings and to ensure that the investor is unquestionably committed to the success of the business.”

Documentation suggested by various Department of State and USCIS sources over the years as appropriate evidence of the investment includes:

  • A complete money trail of the funds invested including:
    • Documentation of the original source of the funds (sale of property, inheritance, loans, earnings, sale of business, etc.);
    • Movement of these funds to a U.S. account; and
    • Use of these funds for qualifying business expenses, including invoices, cancelled checks, and bank statements showing matching debits, with the figures highlighted;
  • Copies of the partnership agreements (with a statement on proportionate ownership);
  • Insurance appraisal;
  • Net worth statements from CPAs;
  • Advertising invoices;
  • Bank records, financial statements, personal secured loans, saving, and promissory notes;
  • Shares, titles, contracts, receipts, and licenses;
  • A signed, dated, valid purchase agreement;
  • A binding escrow agreement that explicitly confirms how the money will be distributed if the visa is issued, what will happen if the visa is not issued, and is signed and dated by all parties;
  • Articles of incorporation or partnership agreement;
  • Signed, dated, valid lease for business premises, including evidence of payments;
  • Evidence of any other funds spent to acquire and set up the business;
  • Evidence of purchase of inventory and/or equipment for the enterprise;
  • Copies of any relevant contracts for the E enterprise;
  • Organizational or staffing chart, or payroll records or IRS Form 941 for the E enterprise;
  • Catalogs, sales literature, and news articles;
  • Signed and dated franchise agreement, as well as evidence of payment of the franchise fee;
  • Copies of debits from bank account, checks, and business invoices;
  • Copies of any necessary and/or relevant local, state and/or federal license;
  • Monthly bank statements for the current calendar year;
  • Copies of the business’s U.S. tax returns filed with the IRS for the previous three years, including all statements and schedules;
  • Copies of Forms W-2 and/or 1099s for the previous two tax years;
  • Profit and loss statements for the current and previous calendar years;
  • A business plan that analyzes the local market and competition and gives a five-year projection of profit and loss, as supported by external sources;
  • A breakdown of start-up cost necessary for the business to become operational;
  • Copies of confidentiality agreements with clients and customers;
  • Copies of consultancy agreements; and
  • Copies of documents discussing projects, processes, or technologies to the value of the copyright or patent.

 

As stated by the regulations: “The treaty investor must be in possession of and have control over the capital invested or being invested.” Possession of the funds may be demonstrated by bank statements and bank transfers with the foreign national named as the owner, or by bequest or inheritance documents or contest or lottery awards with the foreign national named as the beneficiary.” As for the source of the funds: “the proper employment of the funds may constitute an E-2 investment. The Department of State acknowledges that the E-2 visa applications have been delayed by difficulty in “identifying the source of funding” for “small, family-owned businesses with modest levels of investments.”

 

The foreign national or foreign corporation must also establish ownership of at least 50 percent of the E-2 enterprise in order to direct and develop the enterprise, as discussed below, because “otherwise, other individuals who do not have the controlling interest are in a position to dictate how the enterprise is to be developed and directed.”

 

The proposed E-2 enterprise must be a bona fide business and must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity, which operates for the purpose of earning a profit. The business must also comply with “applicable legal requirements for doing business in the particular jurisdiction in the United States.”

 

Employees of E-1 and E-2 Entities

The E-1 and E-2 visa categories are not limited to treaty traders and investors. An employee of a qualifying entity may also apply for E-1 and E-2 status, as long as he or she has the same nationality as the E employer. The E employer may not be a permanent resident of the United States and ownership interest of a permanent resident may not be counted. The E employer must be either:

  • A foreign national who holds E-1 or E-2 status in the United States or who “would be classified” as an E-1 treaty trader or E-2 treaty investor if the foreign national resides outside the United States.
  • An entity that is owned at least 50 percent by foreign national who hold E-1 or E-2 status in the United States or who “would be classifiable” as E-1 treaty traders or E-2 treaty investors if the foreign nationals reside outside the United States.

The owner of a company seeking to send: AN employee must demonstrate that he, she or it (i.e., a corporation) “develops and directs the enterprise”. The development and direction of the E-2 enterprise can be established in the following situation:

  • If a foreign national will apply for an E-2 visa as a personal employee of the E-2 investor or as an employee of the E-2 business, then the owner must personally develop and direct the business; or
  • If a foreign parent company owns at least 50 percent of the E-2 enterprise then the foreign parent company, rather than an individual, it must develop and direct the enterprise, regardless of whether the foreign national will be an employee of the parent corporation or of the E-2 enterprise.

 

O Visas: To qualify under this category, the alien must have an extraordinary ability in the sciences, arts, education, business, or athletics. Different standards of eligibility apply for the various fields listed above. The alien must be coming to the United States to work in his area of extraordinary ability or achievement. Under this category, the initial period of the alien’s stay in the United States is approved for the time necessary to complete the activity for which the alien is admitted, up to a period of three years. Approval must be obtained from the USCIS prior to the alien applying for this visa at the U.S. consulate. An alien can be approved for the O visa even if he previously applied for permanent residence.

O-1 Classification is appropriate for a foreign national who has “extraordinary ability” in his or her field, which may be science, education, business, athletics, art or the motion picture and television industries, or “any field of endeavor.” Importantly, the provisions of this visa classification are intended to be highly restrictive, such that evidence that may be adequate for approval of an H-1B petition generally insufficient for approval of an O-1 petition. There is no annual numerical limitation on O visa numbers.

The O-1 classification provides U.S. employment authorization for many different types of individuals and fields, which may be grouped into two categories with respect to the required standard of evidence:

  • For the field of science, education, business, athletics, or art, the foreign national beneficiary must be able to demonstrate “sustained national or international acclaim,” and must be “coming temporarily to the United States to continue work in the area of extraordinary ability”.
  • For the field of motion picture or television production, the foreign national must have “a demonstrated record of extraordinary achievement,” and must be coming temporarily to the United States to continue work in the area of extraordinary achievement.

O1-A Extraordinary Ability in Sciences, Education, Business or Athletics. The regulations state: “Extraordinary ability in the field of science, education, business, or athletics means a level of expertise indicating that the person is one of the small percentage who have arisen to the very top of the field of endeavor.” Alternatively, a superior level of achievement and renown may be demonstrated by submitting at least three of the following types of evidence:

  • Evidence that the beneficiary received “nationally or internationally recognized prizes or awards for excellence in the field of endeavor;”
  • Evidence that the beneficiary holds membership in a professional industry association, “which required outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;”
  • Published material in professional or major trade publications or major media about the alien,” which describes the beneficiary’s work and/or achievements;
  • Evidence that the beneficiary served “as a judge of the work of others in the same or in an allied field or specialization to that for which classification is sought, either individually or as a member of a panel”;
  • Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field;
  • Evidence of the alien authorship of scholarly articles in the field in professional journal, or other major media;
  • Evidence that the beneficiary is or was employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; or
  • Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

 

O1-B Extraordinary Ability in The Arts. The regulation defines “art” as “any field of creativity or endeavor such as, but not limited to fine arts, culinary arts, and performing arts.” Architecture is also included in the arts, as is acrobatic circus performance. An individual who will coach other people in sporting activities may nevertheless be considered an artist as long as the other individuals will not compete in sporting events. To establish extraordinary ability in arts, the petition should demonstrate how the individual has achieved “distinction” which, in turn, is defined as “a high level of achievement in the field of arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well known in the field of arts.”

O1-B Extraordinary Ability in Motion Picture or Television Production. Extraordinary achievement with respect to motion picture and television productions, as commonly defined in the industry, means a very high level of accomplishment in the motion picture or television industry evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the motion picture or television field.

 

O-2 Classification is available to support staff accompanying the O-1 principal to assist with artistic or athletic events or performances.

The O-2 accompanying an artist or athlete of extraordinary ability must:

  • Be coming to assist in the O-1’s performance;
  • Be an integral part of the actual performance; and
  • Have critical skills and experience with the O-1 that are not of a general nature and are not possessed by a U.S. worker.

The O-2 accompanying an O-1 of extraordinary achievement in the motion picture or television industry must:

  • Hold skills and experience with the O-1 that are not a general nature, and which are critical, either because:
    • They are based on a pre-existing and long standing working relationship with the O-1; or
    • If in connection with a specific production, significant production will take place both inside and outside the United States (including pre and post-production), and the continuing participation of the O-2 is essential to successful completion.

O-3 classification. Spouses and children of O-1 and O-2 principal are eligible for O-3 status in the United States and are ineligible to apply for work authorization.

An O petition may be approved for up to three years, but an extension may be granted indefinitely for long term projects or assignments, or for a group of related performances or activities. There is  currently no annual limit on O visa numbers.

Checklist of requirements;

  • Assignment, performance or event requiring the foreign national’s extraordinary ability;
  • Contacts within the foreign national’s field or independent authorities capable of providing the required advisory opinion and recommendations; and
  • Documentation of the foreign national’s extraordinary ability in the sciences, education, business, athletics, the arts, or in the motion picture or television industries.

Documents necessary to prepare the petition;

  • Basic information about the employer;
  • Description of the assignment, event, or performance;
  • Copies of the foreign national’s education degrees and/or transcripts;
  • Copies of the foreign national’s resume;
  • Copy of employment contract;
  • Information from the foreign national regarding his or her accomplishments in the field;
  • Information on contracts who can provide and advisory opinion and recommendation letter; and
  • Copy of biography page(s) of passport(s) of the foreign national and those of any dependent, Spouse, and children.

The petition may be filed by a U.S. employer, a U.S. agent, or a foreign employer through a E.S. agent, but no by the foreign national. It is not mandatory that the O-1 employer file the O-2 petition. If the beneficiary will “work in more than one location,” then the petition “must include an itinerary with the dates and locations of work.” Substitutions of O-1 or O-2 beneficiaries are not permitted.

P category: This category is for entertainers and athletes who cannot qualify under the extraordinary ability standard for the O category. To qualify, the alien must either be an athlete who competes individually or as part of a team at an internationally recognized level, or be an essential part of an entertainment group that has received qualifying international.

  • P1 status: Athlete, Arts and Entertainment Groups. The individual athlete, athletic team, or entertainment group must be internationally recognized, which is defined as 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.
  • P2 status: Artist and Entertainer in Reciprocal Exchange Programs status is appropriate for a foreign national who will perform as an artist or entertainer, individually or as a part of a group, or perform as an integral part of the performance of such a group, and who seeks to perform under a reciprocal exchange program.
  • P3 status: Culturally Unique Artist and Entertainers is available for entertainment groups who provide culturally unique performance. Cultural unique is defined as a style of artistic expression methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.

K-1 visas are issued to the fiancés (or fiancés) of U.S. citizens. The purpose of the K-1 visa is to allow the fiancés of U.S. citizens to travel to the United States for marriage. The maximum period of stay in the U.S. is ninety days. A K-1 holder cannot change his K-1 status without marrying the U.S. citizen’s fiancé. Once the K-1 holder marries the U.S. citizen within the authorized time period, he may apply to adjust his status to permanent resident status.

H-1B category: The H-1B classification allows professionals to work in the U.S., on a temporary basis, within their profession. It is suitable and ideal for engineers, nurses, professors, researchers, computer programmers, and other professionals. The H-1B category is designed to attract highly skilled professionals to work in the U.S. on a temporary basis. H-1B classification is available only to workers in occupations requiring highly specialized knowledge normally acquired through attainment of a four-year college degree. The applicant must possess at least a bachelor’s degree or its equivalent. The H-1B visa allows specialty occupation workers to enter the United States and work in a professional capacity for a maximum period of six years. In this category, the U.S. employer petitions the USCIS for the alien’s entry to the United States for purposes of working with that employer. There is no foreign residency requirement, and the alien may apply for permanent residence while he is in H-1 status or before or after he applies for an H-1B visa.

Checklist of Requirements:

  • Professional assignment
  • Beneficiary qualifies for the specialty occupation
  • H-1B visa number available for as initial petition
  • Employer attestations in labor condition application
  • Valid employment relationship
  • Additional filing fees
  • No labor dispute in progress at the worksite for the occupation

Documents Necessary to Prepare the Petition:

  • Job description, including employment period and job requirements, if any
  • Copies of the foreign national’s educational and/or experience credentials, including transcripts
  • Copy of foreign national’s resume
  • Basic information about the company
  • Copy of biographic page(s) of passport(s) of the foreign national and any dependent spouse and children

USCIS announces implementation of H1B Electronic Registration Process for Fiscal Year 2021 Cap Season. Under this new process, employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that requires only basic information about their company and each requested worker. USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B random selection process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

 

H-2B category: This classification allows foreign nationals who are citizens of certain named countries, with limited exceptions, to accept temporary non-agricultural employment in the United States, after the employer has obtained temporary labor certification by establishing that there were no willing, able, and qualified U.S. workers available during the period of recruitment. The foreign national must also demonstrate nonimmigrant intent through the maintenance of foreign residence. There is an annual numerical limitation of 66,000 for H-2B visas. Under the rules, an H-2B petition may be valid for up to one year for seasonal, intermittent, and peak load needs, and up to three years for one-time needs. However, the reality can differ. Dependents, spouses, and children of H-2B nonimmigrants hold H-4 status.

H-4 category: H-4 visas are issued to H-1 holders’ spouses and children under twenty-one years of age. H-4 holders are considered to be the dependents of H-1 holders. Spouses and children under twenty-one years of age may be entitled to enter and remain in the United States for the duration of the H-1 holder’s authorized stay, as H-4 status holders. Their duration of valid stay is the same as that of the H-1 holder. H-4 holders are permitted to attend school on their H-4 status, and they do not have to be full time students. H-4 holders are not permitted to work.

 

If you have any questions regarding temporary working Visas and procedures, please contact [email protected] or call 917-558-5047.