Immigration and nationality law

image93

Non-Immigrant Visas

Mr. Padilla and his team assist clients to determine the appropriate nonimmigrant visa for their specific purpose, prepare the appropriate forms and paperwork, and provide support throughout the entire process. Set forth below is a summary of the most common nonimmigrant visas. 


H-1B Specialty Occupation Visa

The Immigration and Nationality Act provides for a nonimmigrant visa for a person who wishes to work temporarily in the United States. The H-1B classification applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. This classification requires a labor attestation issued by the Secretary of Labor. There is an annual numerical limitation on the number of visas that are allowed, which in the case of H-1B visas, the numerical limitation is 65,000 visas per year. However, if the candidate for the H-1B visa has a Master's Degree issued by a U.S. educational institution, then there are an additional 20,000 visas available for such persons.


Requirements


  • The applicant must have a baccalaureate degree from a regionally accredited university in the U.S. or its equivalent and must be coming to the U.S. to work in his or her field.
  • The U.S. employer must certify that it will pay the applicant the prevailing wage for the type of occupation. 


Time Limits

Holders of an H-1B visa may reside in the U.S. for a total of six years, at which time they are required to return to their country of origin or previous residence. Usually, H-1B visa holders are granted a three-year period of stay, at the expiration of which they need to apply for an additional three years. However, the time period that an H-1B visa holder spends outside of the U.S. is not counted toward the total of six years and can be recaptured.


L1 Transferred Employee Visas

Transferred employee visas are for those foreign nationals coming to the United States as intracompany transferees and who within the three years prior to their entry have been employed abroad continuously by an affiliate or subsidiary of the multinational employer for at least one year. In addition, they must have been employed in a managerial, executive or specialized knowledge capacity. The L visa is usually granted for three years, with a total of seven years.


Requirements


  • The applicant must have worked continuously for an affiliate or subsidiary of a U.S. employer for one year of the last three years prior to entering the U.S. in nonimmigrant status.
  • The applicant's employment with the foreign affiliate or subsidiary must have been in a managerial, executive, or specialized knowledge capacity.
  • If the U.S. employer is an affiliate, the foreign and U.S. employer must have the same or nearly the same shareholders or controlling block of owners.
  • The applicant must be coming to the U.S. to work for the U.S. employer as a manager, executive or specialized knowledge employee.
  • The U.S. employer must have a commercial office or other commercial installations or facilities.


New Companies

If the U.S. employer has been in business for less than one year, additional requirements will apply. First, the U.S. employer must show the development and expected growth of the U.S. employer through the presentation of a detailed Business Plan. Second, the U.S. employer must demonstrate that a sufficient amount of capital has been invested in the enterprise to make it viable. Third, the applicant will only be granted a visa for only one year and must show at the end of that one year period that the U.S. employer has significant U.S. operations; otherwise, the visa will be canceled.


Purchase of Business

The foreign employer may also purchase a business in order to establish an affiliate or subsidiary. For example, the purchase of a $300,000 business would qualify even if the foreign employer only initially invested $50,000 for the purchase of the business, with an obligation to pay the balance of the purchase price in the form of a promissory note.


Time Limits

Holders of an L-1A visa may reside in the U.S. for a total of seven years, at which time they are required to return to their country of origin or previous residence. For newly formed U.S. companies, the L-1A visa will be granted for one year, at which time the company will need to apply for an extension of the visa and must show that the company has developed, employs 5 to 10 employees and is operational.


E-1/E-2 Treaty Trader/Investor Visas

The Immigration and Nationality Act provides a non-immigrant visa for the nationals of a country with which the United States maintains a treaty of commerce and navigation who is coming to the country to carry on substantial trade between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the foreign national has invested, or is in the process of investing a substantial amount of capital.

Treaty countries are listed on this internet website of the U.S. Department of State: 


https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html


Treaty Trader Visas

The requirements for the treaty trader visa are that (a) the applicant must be a national of a treaty country, (b) the trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country, (c) the international trade must be "substantial" in the sense that there is a sizable and continuing volume of trade. Typically, ongoing trade of $500,000 per year is considered to be substantial, (d) the trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant's nationality, (e) trade means the international exchange of goods, services, and technology (title of and to the trade items must pass from one party to the other), and (f) the applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm (ordinary skilled or unskilled workers do not qualify).


Treaty Investor Visas

The requirements for the treaty investor visa are that (a) the investor, either a real or corporate person, must be a national of a treaty country, (b) the investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise (the percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise -typically, investments of between $150,000 and $200,000 will qualify for a startup business), (c) the investment must be a real operating enterprise (speculative, idle or passive investments do not qualify and uncommitted funds in a bank account or similar security are not considered an investment), (d) the investment may not be marginal (it must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States – this usually means that the investor must have other individuals employed in the enterprise), (e) the investor must have control of the funds, and the investment must be at risk in the commercial sense (loans secured with the assets of the investment enterprise are not allowed, unless the investor provides a personal guaranty with other assets), and (f) the investor must be coming to the U.S. to develop and direct the enterprise (if the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity -ordinary skilled and unskilled workers do not qualify).


Purchase of Business

The treaty investor may also purchase a business without having to immediately invest the entire amount indicated. For example, the purchase of a $300,000 business would qualify even if the investor initially only invested $50,000, but also has an obligation to pay the balance of the purchase price in the form of a promissory note that was personally guaranteed with other assets and/or income.


Employees of E-1/E-2 Visa Holders

Key employees of E-1 and E-2 visa holders may also receive an E-1 or E-2 non-immigrant visa without the necessity of meeting the investment amounts. In fact, the principal investor need not to be in E status and must only show that he would be potentially "classifiable" as a treaty trader or treaty investor. The company must show, however, that the employee is a key employee that will occupy an executive position with the company and be part of the management team of the company. 


Time Limits

Holders of E visas may reside in the United States as long as they continue to maintain their status with the enterprise. Normally, visas are given with five-year terms, which can be extended indefinitely, and two-year entry approvals. A change of status applicant is given a two year period of stay. 


O-1 Extraordinary Ability Visa

The O-1 classification applies to persons with extraordinary ability in the sciences, arts, education, business or athletics, or extraordinary achievements in the motion picture and television field. It is for the small percentage who have risen to the top of their field.The applicant must demonstrate the achievement of regulatory criteria, including having received nationally or internationally recognized prizes or awards for excellence; performed a critical role for an organization with a distinguished reputation; made original contributions of major significance; and commanded a high salary or other remuneration in relation to others in the field.


The O-1 visa requires a no-objection letter from a union, such as the Screen Actors Guild, or management group. 


Requirements

The O-1 visa applicant must show through extensive documentation that he/she has extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field and must be coming to the U.S. to work in his or her field.


For Aliens in the sciences, education, business, and athletics, the alien must show that he/she is in the top of his or her respective field. This can be established through evidence of receipt of a major, internationally recognized award such as a Nobel Prize. In absence of such an award one can establish himself/herself as a qualifying alien through at least three of the following types of evidence:

 

  1. Documentation of receipt of lesser nationally (not necessarily U.S.) or internationally recognized prizes or awards for excellence in the field of endeavor;
  2. Documentation of membership in associations in the field of endeavor which require outstanding achievements of their members;
  3. Published material in professional or major trade publication or in the major media about the alien and relating to the alien's work in the field of endeavor;
  4. Evidence of participation as a judge (individually or as a part of a panel) of the work of others in the alien's field;
  5. Evidence of scientific, scholarly, or business related contributions of major significance in the field of endeavor;
  6. Evidence of authorship of scholarly articles in the field, in professional journals or other major media;
  7. Evidence of performance in a critical or essential capacity for organizations or establishments with distinguished reputations;
  8. Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others; and
  9. Other comparable evidence. 


For aliens in the arts, motion pictures, or television, the alien must show that he/she has acquired "distinction" in his/her artistic field. "Distinction" means a high level of achievement as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is described as prominent, leading, or well-known in the field of arts. 


Persons in the motion picture or television industry must show a very high level of accomplishment evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the industry. Under these standards the requirements under the motion picture or television industry are somewhat higher than those for the arts. In either case, the forms of evidence to be used to establish the qualification are the same. The alien may establish qualification through evidence of nomination or receipt of a major, national or international recognized award such as an Academy Award, an Emmy, a Grammy, or a Director's Guild Award. In absence of such an award one can establish himself as a qualifying alien through at least three of the following types of evidence:


  1. Having been or will be performing a lead or starring role in productions or events which have a distinguished reputation (as evidenced by critical reviews, advertisements, press releases, publications contracts, or endorsements;
  2. Critical reviews or other published material in professional or major trade publication or in the major media by or about the alien which show that the alien has achieved national or international recognition or achievements;
  3. Evidence of performance in a lead, starring or critical role for organizations or establishments with distinguished reputations;
  4. Evidence of a record of major commercial or critically acclaimed successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales;
  5. Evidence of significant recognition for achievements from organizations, government agencies, or other recognized experts in the field;
  6. Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others; and
  7. Other comparable evidence.


Time Limits

There is no set maximum period for O-1 status. Theoretically, it can be indefinite. However, the length of the status is determined by the length of time needed for the alien to perform his/her duties or activities with the petitioner employer. An initial stay is limited to no more than three years, provided the petition can establish that the O-1 alien will need this much time for the proposed employment. This period may be extended at one-year increments thereafter, upon evidence showing that the alien's continued presence would be required.


P-1 Professional Athlete/Entertainer Visa

This classification applies to professional athletes playing an individual sport or a team sport who are internationally recognized. It requires a no-objection letter from a union or management group.


Requirements

The P-1 visa applicant must show through extensive documentation that he/she is an athlete or member of an entertainment group that is internationally recognized.


Time Limits

There is no set maximum period for P-1 status. Theoretically, it can be indefinite. However, the length of the status is determined by the length of time needed for the alien to perform his duties or activities with the petitioner employer. An initial stay is limited to no more than three years, provided the petition can establish that the P-1 alien will need this much time for the proposed employment. This period may be extended at one-year increments thereafter, upon evidence showing that the alien's continued presence would be required.


J-1 Exchange Visitors and Trainees

The J-1 classification is intended for those persons that participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.  Under the Exchange Visitor Program, the U.S. Department of State designates public and private entities to act as exchange sponsors, through which aliens are sponsored.  This sponsoring entity develops a program for training and/or internship and the non-immigrant applies for that program.   The foreign national must document his or her non-immigrant intent, and, in order to emphasize the importance of ties abroad, J-1 trainee or intern status requires current enrollment in or prior completion of a qualifying foreign university degree and/or foreign employment experience.   

  

Requirements

  • Training or internship must be specific, supervised, and evaluated, with little or no time providing clerical tasks
  • Approval of the training or internship program by a designated J-1 sponsor
  • Non-immigrant intent on the part of the foreign national
  • Sufficient funds to cover expenses during the J-1 program


Time Limits

The trainee program is generally limited to 18 months, except in the case of agriculture and hotel and tourism, which are 12 months with certain exceptions.  Agricultural programs may be 18 months but only upon a showing, when initially filing, that there is 6 months of classroom participation. Interns are limited to 12 months.


To get additional training in all fields, the program must address the development of more advanced skills or a different field of expertise. Interns may participate in an additional program as long as they maintain student status or begin a new internship program within 12 months of graduation. Trainees must be out of U.S. for a 2-year period before they can get additional training. Similarly, interns who no longer qualify for an internship program must be out of the U.S. for 2 years before starting a trainee program.  If the training is in a field that can be utilized in the foreign country and is on the Exchange Visitor Skill List the J-1 may be subject to the 2-year home country residence requirement.

Permanent Residency - Green Cards

Generally, under the employment-based immigration categories, the prospective employer of a foreign national begins the permanent residency application process by filing a petition with the U.S. Citizenship and Immigration Services (USCIS). However, in most employment-based immigration categories, the employer must first file an application with the U.S. Department of Labor's Employment and Training Administration requesting certification to hire a foreign national. This is the Labor Certification Process which will be discussed in more detail below.


Categories of Employment-Based Immigration

Under the Immigration and Nationality Act (INA), employment-based immigration has the following categories:


EB-1 - First Preference (priority workers)

This classification is for priority workers with extraordinary ability, outstanding professors and researchers, and multinational executives and managers. No labor certification is required for the First Preference, but the prospective employer must provide a job offer and file a petition with the USCIS. All workers in this category must be the beneficiaries of an approved Form I- 140, Immigrant Petition for Foreign Worker, filed with USCIS.  Within this preference there are three subgroups:


  1. Persons of extraordinary ability in the sciences, arts, education, business, or athletics. Applicants in this category must have extensive documentation showing sustained national or international acclaim and recognition in the field of expertise. Such applicants do not have to have a specific job offer so long as they are entering the U.S. to continue work in the field in which they have extraordinary ability. Such applicants can file their own petition with USCIS, rather than through an employer;
  2. Outstanding professors and researchers with at least three years’ experience in teaching or research, who are recognized internationally. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with USCIS; and
  3. Certain executives and managers who have been employed at least one of the three preceding years by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer. The applicant must be coming to work in a managerial or executive capacity. No labor certification is required for this classification, but the prospective employer must provide a job offer and file a petition with USCIS.


EB-2 - Second Preference (workers with advanced degrees or exceptional ability)

This classification is for persons with advanced degrees or the equivalent due to work experience and those with exceptional ability in the sciences, arts or business whose exceptional ability will substantially benefit the United States. All Second Preference applicants must have a labor certification approved by the U.S. Department of Labor (DOL), or Schedule A designation, or establish that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. A job offer is required and the U.S. employer must file a petition on behalf of the applicant. Aliens may apply for exemption from the job offer and labor certification if the exemption would be in the national interest, in which case the alien may file the petition, Form I-140, along with evidence of the national interest. There are two subgroups within this category:


  1. Professionals holding an advanced degree (beyond a baccalaureate degree), or a baccalaureate degree and at least five years progressive experience in the profession; and
  2. Persons with exceptional ability in the arts, sciences, or business. Exceptional ability means having a degree of expertise significantly above that ordinarily encountered within the field.


EB-3 - Third Preference (professionals, skilled workers, and other workers)

This classification is for professionals with baccalaureate degrees and persons with at least two years of experience as skilled workers. Unskilled workers are also included in this classification if they can perform work for which there are no qualified workers in the United States. All such workers require a labor certification, or Schedule A designation, or evidence that they qualify for one of the shortage occupations in the Labor Market Information Pilot Program. There are three subgroups within this category:


  1. Skilled workers are persons capable of performing a job requiring at least two years' training or experience;
  2. Professionals with a baccalaureate degree are members of a profession with at least a university baccalaureate degree; and
  3. Other workers are those persons capable of filling positions requiring less than two years' training or experience.


EB-4 - Fourth Preference (special workers such as those in a religious occupation)

This classification is for members of nonprofit religious organizations coming to the country to work for that organization. To qualify, the person must have been a member of the organization for at least two years before applying for admission.


EB-5 - Fifth Preference (employment creation)

This classification is for persons who have invested between $900,000 and $1,800,000 in a U.S. commercial enterprise. The amount of investment depends upon the unemployment rate in the geographical area of investment. To qualify, the foreign national must invest between $900,000 and $1,800,000 in a commercial enterprise in the U.S. which creates at least 10 new fulltime (at least 35 hours per week) jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.


If the investment pertains to the acquisition of a "troubled business," the investor may be credited for preserving the employment of current employees. A "'troubled business" is a business that has been operating for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on which the investor applies for the EB-5 visa. The loss for this period of time must be at least 20% of the net worth of the "troubled business" prior to the loss.

The EB-5 petition is submitted on Form I-526, together with all of the documentation supporting the petition. Upon submission to USCIS, an EB-5 petition takes approximately 9 months to grant approval and, upon approval, the investor and his or her family are granted conditional permanent residency in the U.S. for a period of two years. Critical to the presentation of an EB-5 employment creation visa petition are showing that (i) the investor has established a new commercial enterprise, (ii) the investor has invested the requisite amount of money and such money has been placed at risk, (iii) the monies invested were lawfully gained, (iv) the investment has created at least ten full-time jobs, (v) the investor has the intention of residing in the United States, and (vi) the investor will be engaged in management of the U.S. enterprise.


Prior to the expiration of the two years of conditional residency, the applicant must file Form I-829 in order to remove the conditions of the permanent residency that was granted. Under 8 CFR Section 216.6(c), the applicant must show that the investment continues, that the business is still active and continues to employ at least ten persons on a full-time basis.


EB-5 Regional Centers

The EB-5 Regional Center Pilot Program was created in October 1992, and extended through September 30, 2012. In 2012, Congress reaffirmed its commitment to the regional center model of investment and job creation by removing the word "Pilot" from the now twenty-year old program, and by providing a three-year re-authorization of the regional center model through September 2015.


The requirements for an investor under the Regional Center Program are essentially the same as for the standard EB-5 Visa, except that the Regional Center Pilot Program provides for a more expansive concept of "job creation," including direct and indirect jobs. A Regional Center is defined as an economic entity that is involved with the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment. In order for a regional center to obtain the "Regional Center" designation from USCIS, the organizers must submit a proposal, supported by economically or statistically valid forecasting tools, showing:


  • How the regional center plans to focus on a geographical region within the United States. The proposal must explain how the regional center will promote economic growth in that region.
  • How, in verifiable detail (using economic models in some instances), jobs will be created directly or indirectly through capital investments made in accordance with the regional center's business plan.
  • The amount and source of capital committed to the regional center and the promotional efforts made and planned for the business project.
  • How the regional center will have a positive impact on the regional or national economy.


Approval of a Regional Center usually takes about 9 to 18 months.


Labor Certification Process

In most cases, before a U.S. company can offer permanent employment to an alien worker, the company must first obtain certification from the U.S. Department of Labor that there are no U.S. workers (either U.S. residents or citizens) that qualify for the job in question. In order to show this, the company must go through a recruitment process in which it places advertisements in various media in the geographic area of intended employment. This will require the company to place advertisements in newspapers, on the Internet, in local/ethnic newspapers and internally within the company during a ninety-day "recruitment period." The advertisements are usually placed in (i) a newspaper of general circulation in the area where the company's principal offices are located, (ii) an Internet job bank, (iii) the Web page of the company, and (iv) a local/ethnic newspaper in the area where the company's principal offices are located.

 


Other alternative media include campus recruiting, radio ads and job fairs. In addition to the advertisements, the company must also place a Notice of Job Availability or "job posting" in a conspicuous location in the company's offices for ten (10) consecutive business days. A job order will also need to be sent to the State Workforce Agency (SWA) in the geographic area where the job is located and should run for a period of thirty (30) calendar days. Upon placing of the advertisements, the company will begin receiving resumes from potential job applicants. Unless the resume shows that the applicant is not qualified, each person who provides a resume should be interviewed, either telephonically or in person to determine whether or not the applicant is qualified for the position.


The recruitment period needs to be held open for 30 calendar days after the last recruitment step occurs in order to allow people to apply for the position. At the conclusion of the recruitment period, plus the 30-day period mentioned above, an Application for Alien Labor Certification is submitted electronically with the U.S. Department of Labor.

In connection with the Labor Certification Application, the company will need to monitor layoffs in the specific occupational category, in the area of intended employment, during the advertising and recruitment period. In this respect, the company will be required to certify that there has been no change in the answer to the following question: "Has the employer had a layoff in the area of intended employment in the occupation involved in this application or in a related occupation within the six months immediately preceding the filing of this application?" Once the Labor Certification Application is certified, which usually takes between 60 to 120 days, the company can file a Petition for Alien Worker with USCIS.


When the petition is approved by USCIS, the beneficiary must wait for an immigrant visa number from the Department of State, unless the category has immediately available visa numbers. Visa numbers are limited based on the immigrant classification. If the beneficiary is already in the country, then the beneficiary must apply to adjust status to permanent resident status when a number becomes available. If the beneficiary is outside the country, when a visa number becomes available, the beneficiary will be notified to go to the local U.S. consulate to complete processing. An experienced visa attorney, such as an immigration lawyers like Santiago Padilla, can assist you with the application process.


Immigrant Petitions

All intending immigrants who plan to base their immigrant visa application on employment in the United States must obtain an approved immigrant visa petition from USCIS. If a labor certification is required and granted, the employer may then file a Form I-140, Petition for Immigrant Worker, with USCIS for the appropriate employment-based preference category.


Once the I-140 petition is approved, if the intending immigrant is in the U.S., he or she must file an I-485 application to adjust his or her status to that of permanent resident. If the intending immigrant is outside of the U.S., then the I-140 approval is forwarded to the National Visa Center of the U.S. Department of State and processing of the residency application continues there. The intending immigrant will eventually be requested to appear for an interview at the U.S. Consulate in the country where the intending immigrant is currently living.


Visa Ineligibility/Waiver

The immigration laws of the United States, in order to protect the health, welfare, and security of the U.S., prohibit the issuance of a visa to certain applicants. Examples of applicants who must be refused visas are those who: have a communicable disease, or have a dangerous physical or mental disorder; have committed serious criminal acts; are terrorists, subversives, members of a totalitarian party, or former Nazi war criminals; have used illegal means to enter the U.S.; or are ineligible for citizenship. Some former exchange visitors must live abroad for two years. Physicians who intend to practice medicine must pass a qualifying exam before receiving immigrant visas. If found to be ineligible, the consular officer will advise the applicant of any possible waivers. 


Required Documentation

All applicants must submit certain personal documents such as passports, birth certificates, police certificates, and other civil documents, as well as evidence that they will not become public charges in the United States. The consular officer will inform visa applicants of the documents needed as their applications are processed. 


Medical Examinations

Before the issuance of an immigrant visa, every applicant, regardless of age, must undergo a medical examination. The examination will be conducted by a doctor designated by the consular officer. Examination costs must be borne by the applicant, in addition to the visa fees.