Employment-Based Immigration

Employment-based immigration allows foreign workers to obtain permanent residence if they are able to establish that they have unique skills, or are being offered a job in the United States that will not displace a U.S. worker or have an adverse effect on the wages and working conditions of U.S. workers.

B-1 VISA - VISITOR FOR BUSINESS

While most visitors to the United States engage in traditional "tourist" activities, the B classification allows them a much greater range of activities than many people would expect. The B-2 tourist status guidelines allow for temporary visits of family members who would not otherwise qualify for dependent non-immigrant status.

If the purpose for the alien's planned travel is to consult with business associates, travel for a scientific, educational, professional or business convention, or conference on specific dates, settle an estate, or negotiate a contract, then a business visitor visa (B-1) may be the appropriate type of visa for that individual's travel. U.S. Department of State and U.S. Department of Homeland Security guidelines provide a fine-line distinction between activities necessary to international trade or commerce (generally allowed under B-1) and local employment or labor for hire (not allowed). The principal factors to be considered are:

1. Whether the alien's activities are commercial.
2. Whether the alien has a clear intent and legal ability to continue his foreign residence.
3. Whether the alien's salary comes from abroad (though travel expenses including meals, lodging, laundry and other basic services may be reimbursed by U.S. sources).
4. Whether the principal place of business and the actual accrual of profits are predominately in the foreign country.
5. Whether the alien's various entries into the United States have a plainly temporary nature (although the business activity itself may be long term).

The initial term of admission under the B-1 status may be up to 6 months, with extensions in increments of up to 3-6 months.

E VISA - TREATY TRADER/TREATY INVESTOR

E visas are available to citizens of certain countries, with whom the United States has appropriate treaties or other bilateral agreements ("Treaty Country"). There is no limit as to how long you can remain in the United States in E status but you must renew that status every 2 to 5 years. The E visa category is broken down into E-1 Treaty Trader visa and E-2 Treaty Investor visa.

To qualify for either E-1 Treaty Trader or E-2 Treaty Investor status, the applicant must be a foreign national of the Treaty Country. An alien employee of a treaty trader may be classified E-1 and an alien employee of a treaty investor may be classified E-2, if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise.

Employees of treaty traders and treaty investors seeking E status must also have the same nationality as the employer. The nationality of a business is determined by the nationality of the individual owners of that business. A business that is at least 50% owned by nationals of the relevant Treaty Country will be eligible for E status.

The E-1 Treaty Trader visa is available to enterprises engaged in trade wit the United States. Treaty traders must be entering the Unites States solely to carry on trade of a substantial nature, whish is international in scope, principally between the United States and the Treaty Country.

The E-2 Treaty Investor visa is available to nationals of the Treaty Country who are engaging in investment in the United States. The investor must show that she has invested or is actively in the process of investing a substantial amount of capital in a viable and operating commercial enterprise, other than a marginal enterprise which provides only enough income to earn a living for the investor and his/her dependents.

H-1B - ALIEN IN SPECIALTY OCCUPATION

The H-1B visa is available to aliens with a U.S. Bachelor's degree, a comparable foreign degree or those with the equivalent education and experience. An individual may stay in the United States for a maximum of 6 years in this category. As with the L visa, an H-1B visa holder must leave the United States for 1 year before he or she may be readmitted in H-1B visa status for an additional 6-year period. The H-1B visa is a cumulative visa. In other words, an alien may not change employers and obtain a new 6-year period with each employer.

There is an annual cap of the number of H-1B visas issued. Currently, it is set at 65,000 visas per year.

L VISA - INTRACOMPANY TRANSFEREE

L visas are available to multi-national company employees who (i) have specialized knowledge of the company; or (ii) are executives or managers of the company. An individual may stay in the United States for a maximum of 5 years in the specialized knowledge category and a maximum of 7 years in the executive or manager category. At the end of the stay the person must leave the United States for 1 year before he or she can return on a new L or H visa (see the overview of the H-1B visa).

L-1 non-immigrant status is employer-specific employment authorized non-immigrant status available to foreign nationals employed abroad who seek admission into the United States to work for qualifying affiliate U.S. employers in either managerial/executive capacity (L-1A) or specialized knowledge capacity (L-1B). The L-1 foreign national is known as an intracompany transferee.

The L-1 category requires that the intracompany transferee has been employed abroad by the same or a related employer for 1 full year within the 3-year period immediately prior to the transfer, which often means that the prospective transferee is currently employed overseas at the time of filing for the L-1. For these reasons, it is often preferable for the foreign national to apply for the L-1 visa at the U.S. consulate overseas rather than a change of status, once the L-1 petition is approved and prior to beginning employment with the U.S. entity. L-1 status is generally approved for an initial period of 3 years. The L-1A (manager/executive) can be extended up to a statutory limit of 7 years.

Dependent family members (spouse and minor children) of an L-1 intracompany transferee are eligible to apply for L-2 derivative status. Spouses in L-2 status may apply for employment authorization after obtaining the L-2 status. Applications are processed in approximately 90 days. Children and spouses in L-2 status may also attend U.S. schools without changing to student status, although a student in the derivitive L status will not be granted practical training.

TN NAFTA PROFESSIONAL

NAFTA is the North American Free Trade Agreement. It creates special economic and trade relationships for the United States, Canada and Mexico. The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals to work in the United States. Permanent residents, including Canadian permanent residents, are not able to apply to work as a NAFTA professional.

Professionals of Canada or Mexico may work in the U.S. under the following conditions:

• Applicant is a citizen of Canada or Mexico;
• Profession is on the NAFTA list;
• Position in the U.S. requires a NAFTA professional;
• Mexican or Canadian applicant is to work in a prearranged full-time or part-time job, for a U.S. employer (see documentation required). Self employment is not permitted;
• Professional Canadian or Mexican citizen has the qualifications of the profession.

Additionally, applicants must demonstrate that they are properly classifiable as NAFTA Professional for TN visa, under U.S. law by:

• Education Requirement- The applicant's employer must submit proof that the applicant meets the minimum education requirements or has the alternative credentials set forth in NAFTA agreement, chapter 16 appendix 1603.d.1. Evidence of professional qualifications may be in the form of degrees, certificates, diplomas, professional licenses, or membership in a professional organization. Degrees, diplomas, or certificates received from an educational institution outside the United States, Canada, or Mexico must be accompanied by an evaluation by a reliable credentials evaluation service specializing in evaluating foreign documentation.
• Work Experience Requirement - Document proving to the applicant's experience should be in the form of letters from former employers. If the applicant was self-employed, business records should be submitted proving that self-employment.

U.S. Citizenship and Immigration Services (USCIS) grants extensions of stay in time amounts of one to three years. There is no limit on the number of years a TN visa holder can stay in the United States. However, the TN visa status is not for permanent residence.