Non- Immigrant Business Visas
This group of visas is called non-immigrant because by themselves they do not lead to a green card or permanent residency in the United States.
B visa may be used for a variety of purposes, including for engaging in religious travel, medical treatment, attending educational seminars; by employees of an international fair or exposition exhibitor. There are B-2 visas for co-habiting partners, amateur entertainers and athletes who perform without remuneration, members of the board of directors of a U.S. corporation, and more. It is possible to engage in certain limited commercial activities while on a B visa, but that activity cannot be “employment” in the U.S. For example, it should be permissible to solicit new customers for the overseas business, negotiate contracts, litigate, consult with business associates, participate in conventions and undertake independent research. The key limitations for a B visa visitors are:
- Time limitation: in the best case scenario a person admitted in B status will get only 180 days in the US; it is possible o extend the stay for another 6 months, however, but such an extension request will have to be accompanied with evidence that a person does not want to stay in the US permanently.
- Limitation on activity: B visa holders would have to show that they remain employed by the foreign corporations, the actual work for customers would be provided overseas, the salaries and other payments will be paid overseas (the source of the payment shall remain abroad);
- The danger of being accused of doing hands-on work in violation of the B visa as at times, the lines between allowed and not-allowed activities is a blurred one.
(!) Exceptions to employment on B visa: (1) B visa may be obtain in certain situations instead of H1 or H3 visa; domestic employees such as housekeepers, cooks, babysitters, parlor maids, butlers, valets, etc. may be admitted in B status when they accompany their employers in the US.
Those from countries with special agreements with the U.S. may qualify for a treaty investor, treaty trader or as an employee of a qualifying entity. Key requirements:
- A qualifying agreement between the foreign national’s country and the U.S.
- For treaty traders: the trade must be substantial international trade of goods, services or technology. The types of qualifying trade activities is regulated by the U.S. government. For example, it can be in the area of tourism, management consulting, design and engineering, banking, insurance, accounting, technology, news-gathering. What is substantial is determined in each particular case, but it is not a single transaction. The trade has to ensure a continuous flow of international trade items between the United States and the treaty country. The volume of the trade matters, not the monetary value necessary.
- For treaty investors: direct and develop business in which the investor has invested or is investing substantial capital, real, at risk, the treaty investor must be in possession of an have control over the capital invested or being invested. What is substantial is determined by proportionality test in light of the nature of the business and the projected success of the business. The value of business vs. the invested amount is a controlling ratio.
- E employees must be executives, supervisor or essential personnel.
- A foreign national will have executive or supervisory duties in the U.S., meaning, that there will be staff employees other than the E visa holder who will be working for a business.
Nationality: a person has to be the national of the country which has a treaty/agreement with the U.S. Department of State maintains the list of the countries with which the qualifying agreements exist. If a treaty trader or investor is a business or an employing company, then the nationality of the company is determined by the nationality of the individual owners of that business. The person has been to a citizen, not a permanent resident for determining the nationality. A company can be incorporated in the U.S., but as long as 50% of the owners are nationals of the qualifying foreign country, the requirements on nationality will be met. In most cases, only one qualifying nationality should be present, and that nationality must be held by owners and the employees we well.
- Non-immigrant intent: E status is temporary in nature.
For citizens of Australia who will engage in professional “specialty occupation” assignments in the U.S. an E-3 status may be appropriate. Dependents of E-3 visa holders may qualify for employment authorization. A person has to be a citizen or national of Australia; should possess a bachelor’s degree; professional license, if required by federal, state or local law, and must be engaging in a professional assignment in the U.S.
The key requirements:
- Professional occupation standard will be evaluated similarly to H1B visa requirements;
- Approved Labor Condition Application
- E3 visa does not require a petition by an employer vs. change of status which does
- The maximum period for which an E-3 LCA may be approved is two years from the employment start date stated on the application. There is no limitations on renewal for E3.
It is faster to get an E3 visa in a consulate where petition by the employer is not required opposed to filing for a change of status in the US.
L visa: L visa requires an employer in the United States which can be one’s own company under certain circumstances. It is suitable for those who open a branch or subsidiary of their overseas business in the United States. The L visa serves as a transfer opportunity for executives or managers from overseas companies to the U.S. branch/ subsidiary/qualifying business. Key requirements and limitations:
- Qualifying relationship between the “mother” foreign company and the U.S. company
- The L visa applicant has to have qualifying employment abroad in an executive, managerial or specialized knowledge position; and the assignment in the US has to be for an executive, managerial or specialized knowledge position.
- For L1A executives, the maximum time that can be spent in the US on an L1A is up to seven years; for L1B specialized knowledge employees with the maximum time admission of five years. The time spent on H1B will count towards the maximum time allowed in L1 status. For more on L1 visa read here. The initial admission for employment for a new company will be limited to one year.
- Business plan and its fulfillment is a key for a successful L1 petition/extension for a new L1 company
In short, an L1 visa can be a great tool for one to transfer managers/executives and specialized knowledge employees from overseas to the US companies.
Immigrant Business visas
These visas lead directly to a green card or status of a lawful permanent resident. The visas discussed below allow for a self-petition or do not require a Labor Certification (proof that no U.S. workers were found for the employment position). EB1 attorney Alena Shautsova helps to obtain EB1 visas in the United States for qualifying applicants. For EB1 visas, a Form I-140 Petition for an immigrant worker is required. It is required even if a person is an alien of extraordinary ability and sponsors herself/himself.
EB1 employment visa
There are following categories within the EB1 qualification:
Aliens of extraordinary ability in the science, arts, education, business, and athletics: No specific employer is required, just an intent to engage in the announced occupation in which classification is sought. An applicant will have to demonstrate that he/she meets 3 out 10 requirements and generally enjoys a reputation of an outstanding specialist in the field and that her/his work in the U.S. will be beneficial for the U.S. Here are the requirements according to the law:
Either evidence of a one-time achievement (that is, a major, international recognized award such as an Olympic medal, a Nobel prize) or at least three of the following:
(i) Documentation of the person's receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor;
(ii) Documentation of the person's membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;
(iii) Published material about the person in professional or major trade publications or other major media, relating to the person 's work in the field for which classification is sought. Such evidence shall include the title, date, and author of the material, and any necessary translation;
(iv) Evidence of the person 's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought;
(v) Evidence of the person 's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
(vi) Evidence of the person 's authorship of scholarly articles in the field, in professional or major trade publications or other major media;
(vii) Evidence of the display of the person 's work in the field at artistic exhibitions or showcases;
(viii) Evidence that the person has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;
(ix) Evidence that the person has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or
(x) Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
(!) Notably, if the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.
Outstanding professors and researchers: if a person has at least three years of experience in teaching and/or research in the academic field, a qualifying offer of employment from a U.S. university, institute of higher education or a private employer and he/she is recognized internationally as outstanding in a specific academic area, he/she may qualify for the EB1B employment category in the US. Here, the petition must be filed by an employer, a scholar cannot file for herself/himself. Experience in teaching or research while working on an advanced degree will only be accepted if the alien has acquired the degree, and if the teaching duties were such that he or she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. A person must meet two out of six criteria:
(A) Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field;
(B) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members;
(C) Published material in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;
(D) Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;
(E) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or
(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;
If the standards in paragraph (i)(3)(i) of this section do not readily apply, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.
Multinational managers and executives: these visas are reserved for those who can demonstrate that they worked as a manager or an executive for a qualifying foreign corporation for at least one continuous year on a full-time basis; and that a US company has been actively doing business for at least one year.
- The US company filing the petition must be the same or a subsidiary/branch of the foreign company that was employing the petitioner abroad
- The manger /executive worked in the same capacity abroad for at least one year within the past 3 years
- Only the company can petition for the manager/executive. He/she cannot do it himself/herself.
This route is popular for L1A holders.
EB2 National Interest Waiver visa
EB2 category is reserved for professionals with high education or persons of exceptional abilities. Do not confuse this category with the extraordinary ability.
Persons with an advanced degree (Master’s or higher) or baccalaureate degree with a minimum of five years of progressive experience in the specialty field may qualify for this category.
EB2 Exceptional ability
If an applicant does not possess or cannot prove that he/she has an advanced degree, he/she may still qualify for EB2 category can demonstrate that possess a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.” A person will have at least three of the following:
(A) An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten years of full-time experience in the occupation for which he or she is being sought;
(C) A license to practice the profession or certification for a particular profession or occupation;
(D) Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.
(iii) If the above standards do not readily apply to the beneficiary's occupation, the petitioner may submit comparable evidence to establish the beneficiary's eligibility.
Traditionally, the EB2 employment category requires labor certification or proof that no suitable US workers were found for the position. But an applicant may request a National Interest Waiver for the labor certification requirements and an offer of employment requirement, and essentially sponsoring himself/herself. Read more about National Interest Waiver here
The law also states that “The director may exempt the requirement of a job offer, and thus of a labor certification, for aliens of exceptional ability in the sciences, arts, or business if the exemption would be in the national interest. To apply for the exemption, the petitioner must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate, as well as evidence to support the claim that such exemption would be in the national interest.” A special provision allows national interest waiver to be granted to physicians who agree to work full-time in areas with a shortage of healthcare professionals.
(!) As such, labor certification is not required for National Interest Waiver applicants, applicants with exceptional ability in the national interest, and Schedule A employees determined by the US government (such as physicians for example). These categories of applicants may self-petition.
EB5 investment visa
This route is for those who have the required funds and is willing either to control the investment himself/herself directly into enterprise or invest into a regional center. The funds required are currently: $1.8M for regular investment (it used to be $1M), or $900,000 for a regional center (which are often in target employment areas)/targeted employment area investment. More on EB5 investment here.
If you have questions regarding US business immigration, please contact us and our Eb1, Eb5 visa attorneys will be happy to consult you! Call 917-885-2261 or book appointment online