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Visas

Visas B- Visitors for Business (B1) and visitors for Pleasure (B2) Stays in the U.S. are brief and involve such activities as touring, visiting family and friends, attending seminars and conducting business for an overseas employer.  The visa is obtained from the U.S. Consulate abroad and is normally valid for six months to one year.



Visas F - Students from elementary school to doctoral candidates and persons in post doctoral studies are classified in the F visa category for the period of the school program.  Students in vocational or nonacademic programs are admitted in the M visa category and students in academic programs for exchange programs are admitted in the J visa category.

P Classification Visas - The P visa classification, like the O category, was created by the Immigration Act of 1990. P visas are reserved for athletes and certain entertainers who have achieved national or international recognition as outstanding in the discipline.
The P category has three subdivisions:
P-1 aliens are defined as members of entertainment groups or individual athletes and
members of athletic teams; (Individual entertainers are excluded, except for reciprocal
exchanges and culturally unique performers).
P-2 aliens are entertainers who are part of reciprocal international exchanges; and
P-3 aliens are those coming to perform in programs that are culturally unique.


E-1 and E-2 - Temporary Investor Visas
Treaties between the United States and man countries allow foreign nationals to come to the United States to conduct trade or to manage substantial investments. Unlike the one million dollar threshold for the permanent resident investor visa, there is no fixed dollar amount for treaty investment. Those qualifying for the E-1 (Trader) or E-2 (Investor) visas can pursue long-term business objectives using these practical visas.

Who Qualifies for an E-1 Treaty Trader Visa?
A person may be issued an E-1 Treaty Trader visa if:
  • The individual or the firm has the nationality of the treaty country (at least half of the company must be owned by nationals of the treaty country).

  • There must be substantial trade (more than 50 percent) between the U.S. and the country of nationality. Trade includes: the exchange, purchase or sale of goods or services or the transfer of technology.

  • The individual is either the principal trader, who is coming to the U.S. to engage in substantial trade, or an executive, manager or employee with special skills essential to the company.
Who Qualifies for an E-2 Treaty Investor Visa?
A person may be issued an E-2 Treaty Investor visa if:
  • The individual or the firm has the nationality of the treaty country (at least half of the company must be owned by nationals of the treaty country).

  • The individual or the company has made or is in the process of making a substantial investment (generally in excess of $100,000 at risk) in a business in the United States.

  • The individual is either the principal investor, who will direct and develop the enterprise, or an executive manager or employee with special skills essential to the company.

  • The investment is not the individual's sole income source.
How Long Can E Visa Holders Remain in the United States?
  • E visa are generally issued for five years. Extensions of stay in the United States may be granted as long as eligibility continues and the treaty remains in force.

  • At the border, E visa holders are admitted to the United States for one year. Extensions of stay in the United States may be grated for up to two years at a time from the appropriate Immigration Regional Service Center.

  • An E visa in the passport can be reissued for up to an additional five years by the State Department Visa Office in Washington, D.C. before the termination of the original E visa without the need to return to the home country.

* Countries with Treaties for E-1 Visas
Argentina, Armenia, Austria, Belgium, Bolivia, Bosnia, Brunei (Borneo), Canada, China (Taiwan only), Colombia, Costa Rica, Denmark, Estonia, Ethiopia, Finland, France, Federal Republic of Germany, Greece, Honduras, Iran, Ireland, Israel, Italy, Japan, Korea, Latvia, LIBERIA, Luxembourg, Macedonia Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Slovenia, Spain, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, and United Kingdom.

* Countries with Treaties for E-2 Visas
Argentina, Armenia, Australia, Austria, Bangladesh, Belarus, Belgium, Bolivia, Bosnia, Brunei (Borneo), Bulgaria, Cameroon, Canada, China (Taiwan only), Colombia, Congo, Costa Rica, Croatia, Czech Republic, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Federal Republic of Germany, Georgia, Grenada, Honduras, Iran, Ireland, Italy, Jamaica, Japan, Kazakhstan, Korea, Kyrgyzstan, Latvia, Liberia, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Netherlands, Nicaragua, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Slovenia, Spain, Sri Lanka Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, Uzbekistan, Yugoslavia, and Zaire.

EB-5 - PERMANENT INVESTOR VISAS

Investor Visas

I
The investor must normally invest $1 million in a new United States business and create jobs for ten United States workers, if, in fact, the investor is investing in a high unemployment area of the united States, called a "targeted area," or a rural area of the United States with a population below 20,000, the required investment amount is reduced to $500,000.00. The list of targeted areas is provided by relevant state authorities.

II The investor, who wished to bail out a troubled business, must invest the required sum and simply maintain the status quo of the employees.

III
The investor who is infusing capital into an ongoing business which is not in trouble, must increase its net worth by 40% or increase its number of employee by 40 % over a two year period, with a minimum investment of $1 million 9or $500,000.00 where applicable) and a minimum increase of 10 qualified workers.

The investor must show that the funds invested were lawfully obtained.

The employment creation visa yields a conditional or probationary stay of two years for the investor and his/her family. Before the end of the two years, the investor must prove that the required regulations have been met and that the investment has in fact been made.

L-1 - Visa Category

Intracompany transfers:
An individual who, within the preceding three years, has been employed abroad in a managerial or executive capacity, or in a position requiring specialized knowledge, for one continuous year by a qualifying organization may be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of the employer in managerial or executive capacity, or in a position requiring specialized knowledge. An individual transferred to the United States under this non-immigrant classification is referred to as an "Intra-company transferee is referred to as the "Petitioner".

The company for which the employee has worked for a year abroad must be related to the U.S. Company in a specific manner. The company abroad must be the same employer or a subsidiary of affiliate of the U.S. Company. The definitions of subsidiary and affiliate are as follows:

Subsidiary
"Subsidiary" means a firm, corporation, or other legal entity of which a parent owns at least half of the entity and controls the entity; or owns 50 percent of a 50-50 joint venture and has equal control and veto power over the entity; or owns less than half of the entity but, if fact, controls the entity.

Affiliate
"Affiliate" means (1) one of two subsidiaries both of which are owned and controlled by the same parent or individual, or (2) one of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same number of shares in each entity. Certain provisions exist for international accounting firms who provide accounting, managerial and consulting services are also to be considered affiliates within the context of the definition.

Both the transferring company and the U.S. entity must be qualifying organizations, and the organization must continue to do business in the United States and one other country during the whole period of the transfer.

The employee transferred must have been employed in an "Executive or Managerial" position or a position involving "Specialized Knowledge".

Managerial
As a manager the individual must: manage the organization, or a department, subdivision, function, or component of the organization; or supervise and control the work of other supervisory, professional, or managerial employees, or manage an essential function within the organization, or a department or subdivision of the organization; have the authority to hire and fire or recommend those as well as other personnel actions 9such as promotion and leave authorization) if another employee or other employees are directly supervised, or if no other employee is directly supervised, function at a senior level within the organizational hierarchy or with respect to the function managed.

Exercise discretion over the day-to-day operations of the activity or function for which the employee ahs authority. A fist-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties.

Executive
As an executive an individual must: direct the management of the organization or a major component or function of the organization; establish the goals and policies of the organization, component, or function; exercise wide latitude in discre5tionary decision making; receive only general supervision or direction form higher level executives, the board of directors, or stockholders of the organization.

Duration of the L-1 "Managerial/Executive" Visa
The categories of Executives and Managers may be extended for periods not to exceed seven (7) years. A one-year term out of the United States will allow another seven years under the L-1 visa.

This category can lead to permanent residence without the need for formal recruiting of U.S. workers. A Labor Certification is not required.

Specialized Knowledge
A start up company (new company) in the United States may apply for an L-1 visa for its Managers and Executives or persons having specialized knowledge. The initial approval is limited to one year with two year extensions to the maximum of the particular category upon a showing of viability.

Companies in the United States that have done business for more than one (1) year allow the initial L-1 to be approved for three (3) years with subsequent two-year extensions.



Visa H-1B - TEMPORARY PROFESSIONAL WORK VISA The H-1B non-immigrant visa category allows businesses to employ foreign nationals temporarily who qualify as persons in specialty occupations.
  • In order to qualify as an H-1B employer, the employer must have a U.S. Taxpayer Identification Number; foreign businesses that are not established in the United States cannot use this visa to bring employees to the United States.

  • Before filing for an H-1B visa, the employer must prepare and file a Labor Condition Application (LCA) with the Regional Office of the Department of Labor (DOL). The LCA is a form which must be carefully prepared and posted in two conspicuous places at the work site for a specified period of time. The form requires the employer to describe the position and salary. The LCA also requires the employer to attest to complex facts concerning the wage, working conditions, labor conditions and giving of notice.

  • Once the LCA is approved, the employer files a petition with the Immigration and Naturalization Service. The employer must document that the position requires the service of a person who is working in a professional position and who has a minimum of a bachelor's degree or its equivalent.

  • By filing the LCA, the employer is required to maintain wage and hour records, as well as information concerning working conditions for all similarly situated employees. This and other information must be kept in a public access file and a non-public access file. Upon request, these records must be provided to DOL's Wage and Hour Division.
The H-1B non-immigrant visa category allows businesses to employ foreign nationals temporarily who qualify as persons in specialty occupations.
  • In order to qualify as an H-1B employer, the employer must have a U.S. Taxpayer Identification Number. Foreign business that is not established in the United States cannot use this visa to bring employees to the United States.

  • Before filing for an H-1B visa, the employer must prepare and file a Labor Condition Application (LCA) with the Regional Office of the Department of Labor (DOL). The LCA is a form which must be carefully prepared and posted in two conspicuous places at the work site for a specified period of time. The form requires the employer to describe the position and the salary. The LCA also requires the employer to attest to complex facts concerning the wage, working conditions, labor conditions and giving of notice.

  • Once the LCA is approved, the employer files a petition with the Immigration and Naturalization Service. The employer must document that the position requires the service of a person who is working in a professional position and who has a minimum of a bachelor's degree or its equivalent.


THE AMERICAN COMPETITIVENESS IN THE 21ST CENTURY ACT OF 2000: EFFECTIVE OCTOBER 17, 2000 SUMMARY OF NEW LAWS ON H-1B AND EMPLOYMENT -BASED PERMANENT RESIDENCE ISSUES
  1. Fee Increase from 12/17/00
    With effect from December 17, 2000, the education and training fee will be increased from $500 to $1000, making the total filing fee of $1100. Most of the funds will be earmarked for the education and training of U.S. workers for high technology and science jobs.

  2. Increase in H1B quotas
    The H1B quotas for the Fiscal Year 2001, 2002 and 2003 is 195,000 each year. In addition, the law allocates most H1-Bs which are already filed or approved to the quotas for prior years. H-1Bs that are exempted from caps from prior laws are: extensions of H1-B status, petitions for concurrent employment where the employee is presently in H-1B status and petitions to change employers. New exemptions are: H1-Bs sponsored by institutes of higher education (or related or affiliated nonprofit entity) and government or nonprofit research organizations (6,000-10,000 per year) and H1-Bs physicians who received J waivers under a Conrad State 20 program (800+ annually).

  3. Portability of H1B visas
    Under Section 105, an employee with an existing H1B visa is authorized to accept new employment with the new employer upon filing by the new employer of a new H1 petition. Such employment authorization shall cease if the new petition is denied and is applicable only if the employee is lawfully admitted in the United States, if the prospective employer has filed a non-frivolous petition and the employee has not been employed without authorization before the filing of the H1 visa.

  4. Extension of H1-B for more than 6 years
    Section 104(c) allows ANY individual who has filed for EB-1, EB-2 or EB-3 visa petition who is eligible to apply for permanent residence status and who are subject to the per country limits (e.g. born in India or mainland China) to apply to the INS for extensions of nonimmigrant status until his or her adjustment application has been adjudicated.

    This provision helps nationals of India and China who are oversubscribed in the Employment-based first, second or third preferences, allowing unused visas to "spill over" to them, most likely making their priority dates current. If all "unused" visas are used in this manner before the last quarter of the fiscal year, there may be cut-off dates established. This provision allows individuals in H-1B status who are running out of time in that status while waiting for their priority date to become current to obtain an extension of H-1B status until they can file for their adjustment of status and their case is adjudicated.

    Section 106 requires INS to grant, in one-year-increments, past the six-year H1 maximum period to applicants of EB visa petitions or adjustment of status applicants, if 365 days or more have elapsed since the filing of a labor certification OR the filing of an EB visa petition. The extension of H1 can be extended at one-year increment until such time a final decision is made on the alien's lawful permanent residence application.

  5. Recapture of Unused EB quotas
    Section 106 allows for more than 100,000 EB visas which were lost in fiscal years 1999 and 2000 due to INS processing delays to be "recaptured" as long as there is excess demand in the EB-1, EB-2 and EB-3 categories.

  6. Change of employers after labor certification or pending an application for adjustment of status
    Under Section 106 (c), after an application for adjustment of status for a person sponsored under an EB category remains unadjudicated for over 180 days, the individual is free to change jobs as long as the new job "is in the same or a similar occupational classification as the job for which the petition is filed".

  7. Backlog Reduction Provisions
    The bill incorporates the text of the Immigration Services and Infrastructure Improvement Act (S. 2586, introduced by Senator Feinstein) which provides for the creation of a new Immigration Services and Infrastructure Improvement Account (and authorizes appropriations to fund this account) in order to reduce INS processing time of all cases to less than 180 days and eliminate the backlog of pending cases. The bill requires INS to provide a backlog elimination plan to Congress within 90 days of the enactment of the bill, and annual reports on their service provision situation and progress toward improvement.

O Visa - The O classification provides specifically for the admission of persons with extraordinary ability in the sciences, arts, education, business, and athletics, or extraordinary achievement in motion picture and television production, and their essential support personnel. The O classification is divided into three categories and includes the following:
  1. An individual alien who has extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim, and who is coming temporarily to the United States to continue work in the area of extraordinary ability: or
  2. An alien who has a demonstrated record of extraordinary achievement in motion picture and/or television productions, and who is coming temporarily to the United States to continue work in the area of extraordinary achievement; or
  3. An alien who is coming to the United States to perform in the motion picture and television industry.

LABOR CERTIFICATIONSIn many cases the only way to obtain U.S. permanent residence ("green card") is for an individual to find an employer in the United States who is willing to assist by applying for a Labor Certification on his/her behalf.

The Labor Certification is a process whereby through very strict regulations, the U.S. Department of Labor (DOL) is satisfied that a full and proper recruitment has been made of U.S. workers and that the U.S. Government standards have been met to establish that there is no U.S. worker currently qualified, willing and able to fill the position offered to the foreign worker.

The job has to be advertised in publications acceptable to the DOL and any applications are sent directly to the State Employment Service Agency (SESA) for the employers' review. All applicants who appear to qualify must be interviewed and may only be rejected for lawful job related reasons. If there are qualified workers, it is probable that the case will fail.

Depending on where in the U.S. the job is located, the process can take up to 3 years or more.

On October 1, 1996, the U.S. Department of Labor issued a directive entitled General Administrative Letter (GAL) 1-97, which in pertinent part, orders the State Employment Security Agencies (SESAs) and Regional Offices to encourage reductions in recruitment ("RIR") and to expedite the processing of these cases for applications that are properly filed.

The 4-prong test of a good RIR case is:
- Occupations for which there is little or no availability
- which have no restrictive requirements;
- which meet the prevailing wage; and
- and for which the employer can show adequate recruitment through sources normal to the occupation and industry within the previous six (6) months

Once approved, the case can be forwarded to the U.S. Immigration and Naturalization Service or out of the U.S. at a U.S. Consulate in the area having jurisdiction over the employee.

An individual may be exempted form the Labor Certification process if an employer can demonstrate it has extensively recruited through sources normal to its industry, for the six months preceding the filing of the Labor Certification application. This application can then be considered for Reduction in Recruitment of "fastrack" processing. Examples of employment based categories not requiring a Labor Certification are multi-national executives or mangers (EB-1(c), aliens of extraordinary ability in the sciences, arts, education, business or athletics, outstanding professors and researchers, applicants performing services in the "national interest", and the permanent investor visas (EB-5).

EB-1 (c) - MULTINATIONAL EXECUTIVES AND MANAGERS
After the company has done business in the United States for one (1) year, it may apply for permanent residence for its Executives and Managers without the need for formal recruiting of U.S. workers. The United States entity must be a viable company, which has progressed from a start up venture into a fully operating company.



SPEECHES AND ARTICLES
  • An Overview of Immigration Law in the U.S.
  • Employment Creation Visas
  • Provisions of Immigration Reform & Control Act I-9 Compliance
  • Permanent Investor Visas
  • Singapore Law Society Gazette, Volume 5, "U.S. Immigration Law".
  • Visa Processing Guide 8th Edition - co-author in Visa Processing in US Embassy, Singapore
SEMINARS
Seminars offered to In-House Counsel, Human Resource Personnel, Labor Law, Trade and other groups on topics including: I-9 record keeping requirements and compliance, non-immigrant visas and investor programs. We also offer complimentary seminar services where appropriate. Please contact our offices for details.


For more information on non-immigrant visas
and permanent resident visas ("green cards"),
please contact Deborah S. Chew at:


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