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Business Immigration: What Visa to Choose

Business Immigration Attorney in New York Alena Shautsova

To enter the US, a person may not be inadmissible: an inadmissibility to the US may be caused by prior violations of the US laws or by criminal convictions, including convictions in the applicant’s home country; any prior visa denials and cancellations of visa must be discussed with an attorney prior to start of any immigration process.

There are several options available for business immigration (described very generally below) including:

I. An EB1 visa: EB-1(c) is best suited for those who are in high level managerial or executive positions in overseas companies that already have U.S. business exposure and are familiar with U.S. business operations.  Essentially, a branch of the overseas company is petitioning for the manager to immigrate to the US. A person must work as an executive for a parent company for at least a year within the past three years. For individuals with limited business experience or for those who do not have a position within a multinational company but with considerable financial resources, the EB-5 category might be a better option. Furthermore, the EB-5 may also be a good option for those who do not want to work under a corporate umbrella or who do not have the corporate authority to transfer. An EB1 beneficiary gets a permanent green card without conditions. Typically, EB1 processes faster than EB5. EB1 beneficiary does not have to invest his or her personal funds. The parent company does that. EB1 beneficiary does not have to prove the legitimacy of funds; also EB1 beneficiary’s potential investment (or correctly to say investment by his parent company) of $75,000-$250,000 has been recognized as sufficient.

II. An E2 visa: a treaty investor visa. Is a non- immigrant visa, it does not give a right for permanent resident status by itself. However, allows for an opportunity to come and engage in business in the US when an investor is making a substantial investment. If an investment is substantial, is being evaluated in each case individually. Because of this, generally, this visa is disfavored among practitioners. Once granted, an E Visa is issued for 5 years, however E Status is only valid for 2 years and as long as the individual maintains appropriate treaty activities they are eligible for an extension of status.

III. An L1 visa: executive transferee. Is a non- immigrant visa, it does not give a right for permanent resident status by itself. To qualify for it, an individual must:

  • Have been previously employed outside of the US by the sponsoring/parent company for at least 1 continuous year out of the past three years.
  • Must (once approved) be transferred to the US to work as a manager, executive or employee with specialized knowledge.
  • The US company the applicant will transfer to, must be a branch, subsidiary, affiliate, parent or joint venture partner of the company outside of the US the applicant is currently employed with. Please note, that the origination of the company whether foreign or domestic( US) does not matter for this application, so long as the parent company is physically located outside of the US and the branch, subsidiary, etc. is located within the US.
  • The foreign company must continue operations for the length of the applicants visa, upon completion of the visa, the L-1 visa holder should expect to be transferred back to the original company. If the foreign company closes that branch that the visa holder was originally transferred from, in order to keep a legal status the US company must have another foreign company to transfer the L-1 visa holder to (the visa holder does not have to actually be transferred, the option to transfer alone is all that is needed).

There are also work visas like H1B, or O1 which come with their own particularities and limitations. Work visas do not investments, but the applicant will need to secure employment or at least a job offer in the US.

Due to the high number of various factors that should be taken into consideration in choosing the best route, it is recommended that a person consults with an experienced attorney.

04 July 2014
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