EMPLOYEES
The H1-B visa classification is reserved for the professional employee, such as engineers, marketing experts, and investment bankers. In determining if a prospective employee will qualify for an H1-B, it is essential to establish the minimum academic requirements for entry into the position and that the foreign worker meets those requirements, which must be closely related to the foreign worker’s university credentials. If the applicant has university training abroad, his/her degree must be evaluated for equivalency to a U.S. degree. In some cases, a non-degreed person will qualify if he/she can demonstrate with credible evidence that he/she has achieved at least 12 years of relevant work experience, (known as the 3-to-1 rule). This must be supported with detailed letters from previous and current employers and a resume. Other helpful evidence includes training certificates, and any proof of post high school education (transcripts, diplomas, etc.).
The H1-B category has an annual limit that is usually oversubscribed early in the U.S. fiscal year, which is April 1 of each year, therefore it is essential to file the petition as early as possible once the position and prospective employee have been identified. If the petition is picked in the annual H1-B lottery, and eventually approved, the foreign worker can begin employment in the U.S. no earlier than October 1 of the given year.
TYPES OF VISAS
E-1
The non-immigrant visa category known as the E-1 for Treaty Traders is designed for firms or individuals who develop substantial trade between the United States and a country with which the United States maintains a treaty of commerce and navigation and which is the country of birth/citizenship of the foreign national. In order to qualify for a Treaty Trader visa, the U.S. office of the company must engage in substantial international trade, a majority (at least 51%) of which must be between the United States and the country of the applicant's nationality. The trade must involve the actual exchange of goods, monies, or services and is generally demonstrated to exist by offering evidence of the number as well as the value of the transactions.
The E-1 visa is generally available to managers, executives, or individuals with specific skills that can be demonstrated as unique (vis-a-vis the trade conducted) and that are not generally available in the United States. The aspect of essentiality to the U.S. operation is a necessary component of the E-1 visa application, and therefore will eliminate the availability of the category for the unskilled worker, clerical employee, or middle- or lower-level manager.
Trade in goods includes both imports and exports between the U.S. and the treaty country. Trade in services includes international banking, insurance, transportation, tourism, communications, data processing, advertising, accounting, design and engineering, and management consulting. It is also possible to show trade based on a legally binding in contract that calls for trade is merchandise or services.
Some examples:
A U.S. company has been established or is actively in the process of being set up, and at least 50% of the stock ownership in the hands of a treaty country entity or individual. This U.S. company is currently engaged in international trade (or has committed irrevocably to this trade). It must be demonstrated that a minimum of 51% of the total trade is directed to and from the treaty country.
A U.S. company has been established or is actively in the process of being set up, and at least 50% of the stock ownership is in the hands of a treaty country entity or individual. The U.S. operation is engaged in providing services to a substantial number of U.S. clients related to certain treaty country manufactured software. At least 51% of this software is manufactured in the treaty country.
A treaty country bank establishes a wholly owned subsidiary in the United States. This subsidiary engages in substantial transactions, of which at least 51% are with U.S. citizens or entities. Based on these transactions, a qualifying employee would qualify for E-1 status.
A treaty country entity enters into a binding agreement to provide consulting services to its U.S. majority-owned subsidiary. The calculated value of these services is demonstrated as the main revenue of the U.S. subsidiary, and the certainty of the agreement is not in doubt. It is likely that E-1 status will be granted.
E-2
An E-2 visa (Treaty Investor visa) is a temporary (nonimmigrant) nonresident visa that enables the holder to live and operate a commercially viable operation, created by an investment, or purchased in the United States. To qualify for an E-2 visa, a person must make an investment in a new or ongoing business in the United States and must:
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be a national of a country with which the United States has a Treaty of Commerce and Navigation;
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be a national of the same country as at least 50% of the owners of the investment enterprise;
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make an irrevocable commitment of his/her own funds or funds "for which he/she is personally at risk" to the enterprise;
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through the investment, create job opportunities for U.S. workers through the investment; and
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fill a "key role" within the company, which is at the executive or management level.
NOTE: In some cases, an E-2 can also be obtained for an executive who is a national of the country, but who is not an investor in the enterprise, see details below.
An E-2 visa is "temporary" because it must be renewed periodically; that is, a person must continue to meet the requirements for an E-2 visa in order to remain in the United States in that status. It is "nonresident" because it does not grant a permanent right to live and work in the United States in the same way that permanent residency status does. It is a temporary visa that can be extended almost indefinitely.
BENEFITS:
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if a spouse is eligible to receive a full work permit
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Children can attend public school at no charge up to high school
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This visa can be renewed without limitation
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Some part of E-2 capital can be borrowed (as long as the E-2 asset is not used to secure repayment of the debt).
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E-2 visa does not usually lead to permanent residency, but can in certain cases, if the investment amount is increased over time or if spouse qualifies separately for permanent residency.
TREATY COUNTRIES:
Africa
Cameroon, Congo (Brazzaville), Congo (Kinshasa), Egypt, Ethiopia, Liberia, Morocco, Senegal, Togo, Tunisia.
America
Argentina, Canada, Chile, Colombia, Costa Rica, Ecuador, Grenada, Honduras, Jamaica, Mexico,
Panama, Paraguay, Suriname, Trinidad & Tobago.
Asia
Armenia, Azerbaijan, Bahrain, Bangladesh, Brunei, China (Taiwan), Iran, Israel, Japan, Jordan, Kazakhstan, Korea (South), Kyrgyzstan, Mongolia, Oman, Pakistan, Phillipines, Singapore, Sri Lanka, Thailand, Turkey.
Europe
Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Denmark (excluding Greenland), Estonia, Finland, France, Georgia, Germany, Ireland, Italy, Kosovo, Latvia, Lithuania,
Luxembourg, Macedonia, Moldova, Montenegro, Netherlands, Norway, Poland, Romania, Serbia, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Ukraine, United Kingdom, Yugoslavia.
Oceania
Australia.
EB-2
EB-2 is an immigrant visa preference category for United States employment-based permanent residency, created by the Immigration Act of 1990.
The category includes "members of the professions holding advanced degrees or their equivalent", and "individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States".
Applicants (with the exception of applicants applying for an exemption known as National Interest Waiver) must generally have an approved Labor Certification, a job offer, and their employer must have filed an Immigrant Petition for Alien Worker (form I-140) with the USCIS.
NAFTA TREATY
Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a non-immigrant visa for temporary stay, or an immigrant visa for permanent residence. The North American Free Trade Agreement (NAFTA), now known as the United States-Mexico-Canada Agreement (USMCA), created special economic and trade relationships for the United States, Canada, and Mexico.
The non-immigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in certain specified occupations in the United States in prearranged business activities for U.S. or foreign employers. Permanent residents of Canada and Mexico are not able to apply for TN visas to work as NAFTA professionals.