There also exists numerous and varied business immigration opportunities that will allow a Foreign National to come the United States for a temporary or permanent period of time. These type of visas generally consists of business travel, tourism, business training, school, education, employment, inter-company transfers and business investors.
Many individuals utilize these opportunities to come to the United States in order to train, work, invest or further education. As stated, some of these opportunities even allow for a family to join the Foreign National in the United States. Additionally, depending on the type of visa sought there sometimes exists situations that will allow the Foreign National and his or her immediate relatives to become permanent residents of the United States thus allowing that family to permanently reside, work, start businesses, study and prosper in the United States while also having the right to travel freely between the United States and other countries. Also as stated above there also exists other types of visas that allow only that Foreign National to come to the United States on a temporary basis.
Each of these opportunities vary depending on one’s background, education, resources and goals.
Types of Visas (Non-Immigrant Visa vs. Immigrant Visa)
Generally speaking there exists 2 types of visas being that of a Non-Immigrant Visa and an Immigrant Visa. Non-Immigrant Visas allow for a temporary period of authorized stay in the United States while Immigrant Visas allow for a permanent period of authorized stay in the United States. Many times Foreign Nationals seek and obtain a Non-Immigrant Visa while pursuing or awaiting an Immigrant Visa.
Non-Immigrant (temporary residency) Based Visas:
- B-1: This type of visa is for an individual intending to enter the United States temporarily for business related purposes. This visa allows the applicant to engage in legitimate business purposes (meetings, conferences, negotiations, commercial transactions, market research, specific project duties whose payment is made by the foreign employer, legal litigation, contract establishment, etc.) but not to include unauthorized work.
- B-2: This type of visa for an individual who desires to enter the United States on a temporary bases for pleasure, tourism, family visit, or medical treatment. To be approved for this type of visa it is vital that the applicant establish to the interviewing Consular Officer that the Foreign National has no immigrant intent and that the Applicant will return to their home country due to sufficient social, economic, professional and family ties before the end of the authorized period of stay.
- F-1: This type of visa to allows international students to attend higher education in the United States by showing that the student has a foreign residence that he or she has no intention of abandoning, will be a bona fide student enrolling in a full course of study and must establish that they have sufficient financial support during the period of study. This type of visa is generally valid for as long as it takes the student to finish their course of study and may include a period of practical training after the completion of their academic requirements. It is important to note (unless authorized to attend English language courses) the Applicant must have sufficient English skills necessary to complete the academic requirements. Language proficiency must be demonstrated (in addition to application evidence) to a sufficient level to the interviewing Consular Officer.
- M-1: This type of visa allows a Foreign National the ability to pursue non-academic or otherwise known as vocation training/study. This can include studies such as language schools, aviation programs, mechanical courses, etc. It is important to note that this type of visa is only valid for only 1 year.
- J-1: This type of visa allows a Foreign National currently enrolled in an approved foreign academic program to participate in an international exchange program that has been approved by U.S. Immigration Authorities. Examples of approved programs can consists of training or academic courses. This visa does not allow the completion (graduation) of higher degrees and is generally limited to 3 years. There are other important restrictions on this type of visa which may prevent or delay future immigration opportunities.
- H-1B: This type of specialty visa allows for an individual to remain or enter the United States in order to work in a specialty occupation via a sponsoring employer. This type of visa requires a higher educational degree typically being at minimal a bachelor’s degree or its foreign equivalent. An H-1B may be provided in increments of 3 years not to exceed a total of 6 years. The employer must obtain a labor certification from the U.S. Department of Labor to ensure compliance with United States labor conditions/protections. * An H visa also allows for “dual intent” which means that even though this is a non-immigrant (temporary) visa the Foreign National is still free to pursue an immigrant (permanent) visa without being in violation of his or her non-immigrant qualifications. A spouse and unmarried children under 21 years of age may also accompany the principal visa holder. Lastly, generally speaking, this type of visa is limited to an annual cap of 65,000 per year of which some are reserved for certain countries . There are also an additional 20,000 for those individuals who received a master’s degree or higher from a U.S. university. It is important to note that there sometimes exists opportunities for Foreign Nationals under this type of Non-Immigrant Visa to pursue other forms of Immigrant Visas in an effort to acquire U.S. Permanency Residence.
- L1-A: This type of visa is for corporate/business executives and managers to remain or enter the United States in order to work at a branch, parent, affiliate or subsidiary of their current employer as an executive or manager. The employee must have been continuously employed abroad with the same company for a period of at least 1 year from the prior preceding 3 years. The U.S position should be the same as indicated on the application. The maximum time an L1-A will be granted for is 7 years via 2 year increments. There also exists special maximum time limits for newly established U.S. companies. Spouses and unmarried children under 21 years of age may also accompany the principal visa holder. It is important to note that a company that maintains a strong U.S. presence may eventually petition for U.S. Permanent Residency for that executive via an Immigrant Visa via EB-1C even after that Foreign National is already on an L1-A Non-Immigrant visa.
- L1-B: This type of visa is for an employee with specialized knowledge to remain or enter the United States in order to work at a branch, parent, affiliate or subsidiary of their current employer. The employee must have been continuously employed abroad with the same company for a period of at least 1 year from the prior preceding 3 years. The maximum time an L1-B will be granted for is 5 years via 2 year increments. Spouses and unmarried children under 21 years of age may also accompany the principal visa holder. It is important to note that there sometimes exists opportunities for Foreign Nationals under this type of Non-Immigrant Visa to pursue other forms of Immigrant Visas in an effort to acquire U.S. Permanency Residence.
- O-1: This type of visa is for a Foreign National who possesses an extraordinary ability in science, arts, education, business or athletics and allows that individual to remain or enter the United States to practice the described extraordinary ability. An O-1 visa applicant must show that they have achieved distinction in their field. It is important to note that a Foreign National who has reached this high level of ability should (if desired) also consider pursing (if applicable) one of the possible/associated forms of Immigrant Visas which can provide U.S. Permanent Residency.
Immigrant (permanent residency or “green card”) Based Visas:
- EB-1A (Persons of Extraordinary Ability): This is a category of first preference and consists of persons with an extraordinary ability in the sciences, arts, education, business or athletics. This category does not require a sponsoring employer but the applicant must still established that he or she is at the very top of their career field and are one of the small percentage who have risen to the very top of that field. The law specifies that evidence must be submitted to establish that the Foreign National has “sustained national or international acclaim and that his or her achievements have bene recognized in the field of expertise”. Lastly, no Labor Certification by the U.S. Department of Labor is required. *
- EB-1B (Outstanding Professor or Researcher): To qualify in this category an applicant must demonstrate that he or she is an internationally recognized and outstanding professor or researcher in his or her specified academic field including evidence that he or she has related teaching/research experience. This type of visa requires an offer of employment from company or university that is authorized to utilize these types of visas under immigration regulation.
- EB-1C (Multinational Executive and Managers): This category requires that the applicant be employed abroad by the parent company for at least one of three years preceding the current application and must continue to be employed by the parent, subsidiary or affiliate company. A qualifying relationship between the multinational executive’s foreign employer and the U.S. entity must exist and be established. Furthermore, such continued employment must be in the executive or managerial capacity thereby truly leading the U.S. entity in its active, continuing and substantial business. In essence, this is an intercompany transfer which ultimately allows the Foreign National to obtain U.S. Permanent Residency. This category is somewhat similar to the Non-Immigrant L-1 qualifications but differs in that the final result is U.S. Permanent Residency. Often, a Foreign National will initially pursue L-1 status to be followed by an application for EB-1C. Additionally, an EB-1C’s spouse and children under 21 years of age may obtain their U.S. Permanent Residency via the Principal Applicant (Foreign National). Lastly, no Labor Certification by the U.S. Department of Labor is required for this category. *
- EB-2 (Professional Holding Advanced Degrees, Persons of Exceptional Ability and National Interest Waivers): This category consists of members of the “profession” holding advanced degrees or maintaining an exceptional ability based on a combination of education or education with work experience. This type of visa requires a sponsoring employer thus requiring labor certification by the U.S. Department of Labor (unless an applicant seeks a National Interest Waiver by evidencing that the requirement of a labor certification would be against the national interest of the United States).*
- EB-3 (Skilled Workers, Professionals and Unskilled Workers) This category requires a bachelors degree or other experience and training and likewise requires a sponsoring employer and labor certification. *
- EB-4 (Religious Workers): This category involves religious workers.
- EB-5 (Investor Visa): This category involves Foreign Nationals who seek U.S. Permanent Residency for themselves and/or their immediate family by investing in a U.S. commercial enterprise. A Foreign National must invest at least $1,000,000.00 (U.S.) dollars in a business or $500,000.00 (U.S.) dollars if the business is located in a targeted employment area / Regional Center. The Foreign National must be able to establish that the source of funds is lawful and belongs to the Foreign National, the investment funds must be “at risk”, the investment must created at least 10 direct or indirect jobs (depending on type/location of investment), and that the Foreign Investor will be involved in some capacity of the investment. As previously described, most Foreign Nationals who pursue this type of visa invest in designated “Regional Centers” which is a designated area identified for proposed economic growth. Typically a Regional Center requires a $500,000.00 (U.S.) dollars investment (as opposed to a $1,000,000.00 investment) and only requires that the investment create at minimal 10 indirect full time jobs (as opposed to 10 direct full time positions). Finally an EB-5’s spouse and children under 21 years of age may obtain their U.S. Permanent Residency via the Principal Applicant (Foreign National). As of last note, it is possible that the employed Foreign National’s spouse and children under 21 years of age to pursue this type of visa via funds derived from that Foreign National thereby allowing the Foreign National to remain outside the United States for long periods of time while not endangering any U.S. Permanent Residency “time in country” requirements.
* Labor Certification: With the exception of EB-1, EB-2’s with National Interest Waiver and other certain visas, most forms of work visa require that a sponsoring employer obtain Labor Certification via the U.S. Department of Labor. This type of application is submitted to the U.S. Department of Labor must demonstrate that the applicant has the required skills, experience and/or education, that an appropriate wage is paid and that there is an actual shortage of U.S. workers in that particular field. Evidentiary steps must be completed to ensure compliance and approval of this requirement.
De Los Santos & Associates, welcomes you to schedule a consultation to see if there exists an opportunity to temporarily or permanently come to the United States via applicable employment based visa.