If you are looking to file for an employee to become a lawful permanent resident, also called obtaining a “green card” or you are looking to becoming a lawful permanent resident through your profession, you would need to obtain an immigrant visa. The Cauley Law Firm, PLLC is experienced with preparing and filing Employment Based Immigration visas applications. We can guide you through the entire procedure for obtaining an immigration visa if you qualify for any of the categories of available.
B-1: Temporary Business
The B-1 Visa may be considered if you need to participate in certain business activities such as consulting with business associates; traveling for a scientific, educational, professional or business convention/conference (specific dates of the conference must be known), settling an estate; negotiating/complying with a contract with a U.S. company or essential business training for a specified time period. This visa is not for employment or student status in the United States so you are not allowed to be employed or attend school while in the United States.
E Visas: Treaty Trader or Treaty Investor
If you desire to enter the United States with the goal to establish trade with your native country or to start a business in the United States, you may be eligible for an E-1/E-2 Visa. Treaty Trader (E-1) or Treaty Investor (E-2) visas are available, if you meet certain criteria and categories of eligibility.
The first requirement is to demonstrate that you are a national of a country with which the United States maintains a treaty of commerce and navigation. Click here to find a list of participating countries. You will also need to demonstrate that you are eligible for one of the categories. For the E-1 category, you may provide evidence that you are coming to the United States to carry on substantial trade, including trade in services or technology, principally between the United States and your native country. For the E-2 category, you may demonstrate that you are entering the United States to develop and direct the operations of an enterprise, in which you have invested, or are in the process of investing a substantial amount of capital in the business. You will need strong documentary evidence to establish these elements, and your immigration attorney will assist you in providing the best evidence for your application.
If you are currently in the United States, the process would be conducted with USCIS. If you are in your home country, the process would be conducted by the U.S. Consulate responsible for non-immigrant work visas closest to you. If you wish to obtain a visa in your passport for future travel purposes and not simply change your status while living in the United States, you should ask your immigration attorney about the advantages of consular processing.
E-1: Treaty Trader
If you are considering the E-1 Treaty Trader Visa and match the description above relating to trade, you must meet specific requirements to qualify under immigration law.
Both USCIS and consular processing will require you to demonstrate that you are a national of a treaty country, and that the trading firm for which you are coming to the United States (or considering while already living in the United States) must have the nationality of the treaty country.
You will also need to establish certain characteristics of the business in order to qualify:
(1) the business’ international trade must be proven to be “substantial;”
(2) the business or firm’s trade must be principally between the United States and the treaty country;
(3) the trade should be for goods, services or technology, and title must be transferred;
(4) you must be employed by the firm or company in a supervisory or executive capacity, or you may also be considered to possess highly specialized skills essential to the efficient operation of the firm.
E-2: Treaty Investor
If you are a foreign national with funds to invest in a commercial enterprise, you may consider the E-2 visa (Treaty Investor Visa). To qualify for this visa, you must meet specific requirements under immigration law. As with the E-1 Visa, the process may begin with USCIS if you are currently in the United States. If you are outside of the United States, it may begin with the consular office responsible for non-immigrant work visas closest to you.
As the investor, you must be a national of a treaty country. You must also be able to demonstrate that the investment is substantial, and it must be sufficient to ensure the successful operation of the company. The government has not, and will not, define a specific monetary value that is considered to be “substantial.” Certain business operations and expenses can also be considered as part of your investment, but vary according to the type of business and normal monetary business requirements. It is advantageous to speak with an immigration attorney regarding what may constitute a “substantial” investment for your industry. In addition, you must demonstrate that you are investing in a legitimate and operational company and not merely a speculative or idle investment, for example, certain investments in real estate. The funds you use for the investment must be under your control and must be at risk. You will need to advise your attorney if the funds were not under your control at all times and were a gift or obtained by a loan. These situations do not automatically disqualify the investment, but special consideration must be given before starting the process. You must also prove that your company will generate more income than only providing a living for you and your family and will have an economic impact on a community in the United States.
If you are not the principal investor, or if you require an employee from your native country in this category, you must demonstrate that you or the employee is employed in a supervisory/ executive role or highly specialized skill capacity.
As with the E-1 visa, if you are in the United States and wish to obtain a visa in your passport for travel purposes in the future and not simply to change your status while living in the United States, you should ask your immigration attorney about the advantages of possibly returning to your home country to process through the consulate.
This information is a general description of the E Visa category and does not constitute legal advice, nor does it establish an attorney/client relationship. If you believe this visa describes your need for entry into the United States and you would like legal guidance, use the form on this page to contact the Cauley Law Firm, PLLC to receive specific information relating to this visa as it may apply to your case.
H-1B: Temporary Worker
If you are an employer and desire the services of a foreign national for a specialty occupation, the H-1B category visa may a good option to allow you to grow your business.
You will need to determine if the position is one which qualifies under the Immigration and Nationality Act. In order to qualify, your position must be classified as a specialty occupation. A specialty occupation is generally defined as a position which requires specialized knowledge and the possession of a baccalaureate degree or higher or its equivalent, as a minimum entry-level requirement by a potential employee. Most professional jobs are classified as “specialty occupations.” If the position is one which will require a state license to practice without restriction, the foreign national must possess the license before H-1B status will be approved. Due to the nature of the visa the position must be considered a temporary position.
We can assist in determining if the position qualifies as a specialty occupation. If the position is a specialty occupation then you may petition for a qualified foreign national.
The H-1B classification is available, for a period not to exceed a total of six years, to a foreign worker. The 6 year period is accomplished by having the H-1B petition approved for the maximum initial period of three years and once the visa is expiring, extend the H-1B for an additional three years provided all circumstances have been met. Petition approval authorizes the foreign national’s employment in the position and location stated on the petition. The H-1B visa is a dual intent visa because the workers in this category may apply for permanent residency and do not need to maintain a foreign residence during their period of stay in the United States. This characteristic makes this visa versatile.
You should be aware when considering the H-1B visa that it is limited by the number of visas which are available annually. The annual H-1B cap is set at 65,000 with an exemption where the first 20,000 visas for workers with advanced degree graduates do not count against the cap. Once the 20,000 advanced degrees exemption has been reached, any additional visas from this category will count against the 65,000 cap. The overall H-1B numbers are also reduced by the U.S.-Chile and U.S.-Singapore Free Trade Agreements (FTAs), which set aside 6,800 H-1B numbers for workers from those two countries each fiscal year. The cap is typically met prior to the end of each year so it is imperative that you know the number of applications received by USCIS to ensure your application will be considered for a given year. The cap does not apply to foreign nationals who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization. You may not be subject to the cap for petitions involving a change in employer, an amendment or extension of stay.
If you are an employer with a foreign national who you require to transfer to a U.S. subsidiary, affiliate or branch on a temporary basis or you are an individual who will be transferred to the US by your company as an executive or manager you may be able to utilize the L visa. These visas allow managers or executives to work in the United States if they have been in their current positions with the foreign company at least one year within the preceding three years prior to the transfer. There are two basic categories of the L visa, the L-1A for transfers of executives or managers and L-1B for employees with specialized knowledge. Both allow a foreign national to transfer from the international office to the US office. We also provide assistance with obtaining L-2 nonimmigrant classifications for spouses and unmarried children less than 21 years old.
The L-1A visas are for transfers of executives or managers from in another country to a U.S. office. The L-1A visa is typically issued initially for three years if the US Company has been actively doing business for at least one year and the US company is a parent, subsidiary, affiliate or branch of the foreign company. The approval may be extended as the initially approved time in the US period draws to a close. Extensions are done on a two-year basis up to seven years. In order to qualify for this visa you must provide evidence demonstrating that the transfer is for an Executive or Manager. The Cauley Law Firm can assist you in determining if the position meets the qualifications for an Executive or Manager. USCIS is currently scrutinizing these applications very carefully and experience with filing L application can prove beneficial. For opening new offices or branches in the US see below.
L-1B visas may be a better option if you have determined you need to bring employees with specialized knowledge of your particular industry to the United States. The specialized knowledge must be related to your company’s product, service, research, equipment, techniques, management, or other interests and its application in international markets. Your employee may also be determined to have specialized knowledge if they have knowledge which relates directly to your company’s processes or procedures. Typically their specialized knowledge would need to be to a level which would make the person an invaluable resource for you and your company and be knowledge which is not widely accessible in other employees. An L-1B visa is initially granted for three years with the option to file for extensions that could keep the employee in the United States for a total of five years. This category may also be utilized when opening a new office. This process is described below.
If your company does not currently have a U.S. office or the office has been open for less than one year, you can establish a new office/branch in the United States. This would allow you to petition for an employee to come as a manager or executive to the United States with an L-1A visa. To qualify you would need to demonstrate that the company has purchased or leased property for a US based office and is ready to open or start operating. The transferred employee must meet the same qualifications for executives/managers. You would also need to provide evidence demonstrating that the new office will be able to financially support an executive or managerial position within the first 12 months after the L-1A visa petition is approved. This option is also available for L-1B by demonstrating that the new branch requires an employee with specialized knowledge of your business. The same evidentiary requirements to demonstrate that your company has purchased or leased property for a US based office and that your company has the financial ability to operate also exists for this category. In the case of L visa’s granted for a new office/branch, the initial visa may be issued for a one-year period. The same extension process may be used as stated above for each of these categories.
Immigrant Visas – PERM Process
EB1: Persons with extraordinary ability in the sciences, arts, education, business or athletics; Outstanding Professors or Researchers; or Multi-national managers/executives.
You must demonstrate that you qualify in one of the above listed categories by meeting specific regulatory requirements. With EB1, a specific employer is not required, so you may self-petition for lawful permanent resident status (LPR). The PERM process is also not required prior to filing for LPR status, which is required for some EB2 and EB3 categories. You also must provide evidence that you will work in the area for which you are considered a person with extraordinary ability, an outstanding researcher or a multi-national manager/executive.
EB2: National Interest Visa Waivers and Aliens of exceptional ability with advanced degrees.
You must demonstrate that you have an expertise or ability that is significantly higher than the ordinary to qualify for this category and have obtained an advanced degree. You must also provide evidence of an offered position, since you must have a sponsor to qualify for EB2. In order to be eligible you must meet the requirements provided through the Department of Labor in the PERM process. NOTE: the PERM process may not be required if the person qualifies for a national interest waiver. This waiver must demonstrate to USCIS that you would substantially benefit the national economy, cultural or educational interests, or welfare of the United States if granted EB2 status.
EB3: Professionals, Skilled workers and other workers.
One category of EB3 employment based green card is for professionals. If you are an individual or your employee an individual who hold a US baccalaureate degree or foreign equivalent degree that is normally required for the profession, this category may be available to you. Some of the typical candidates are architects, engineers, attorneys, physicians, and teachers (this can be in elementary or secondary schools, colleges, academies). This category also includes any occupation for which a US baccalaureate degree (or foreign equivalent) is the minimum requirement for entry into the occupation.
Another category of EB3 employment based immigration which may be available is for “skilled workers”. This would apply to you if as a person, who at the time of petitioning, is capable of performing skilled labor, requiring at least 2 years training or experience, not of a temporary or seasonal nature, and for which there are no qualified workers available in the United States.
Finally, the EB3 employment based green card is also for “other workers. This would be eligible for a person who is to perform unskilled labor, requiring less than two years training, not of a temporary or seasonal nature, for which qualified workers are not available in the United States.
EB4: Religious workers
To be eligible for this category you must demonstrate that you are a religious worker who, for at least two years preceding application, has been a member of a religious denomination having a bona fide nonprofit religious organization in the US. The religious worker must be a minister or working in a religious vocation or occupation.
EB5: Employment Creation Immigrant Visa
The basic EB5 program requires the creation of a new commercial enterprise. It must both benefit the U.S. economy and directly create full-time employment for no fewer than 10 “qualifying employees,” defined as U.S. citizens, lawful permanent residents, or certain other immigrants lawfully authorized to be employed. Buying a house does not qualify since this is considered as noncommercial activities. By law the required investment must equal $1,000,000 or $500,000 depending on the location of the business.
USCIS Process for Immigrant Visas
The I-140 Immigrant Visa Petition must be submitted to USCIS for categories EB1, EB2 and EB3. EB1 candidates and EB2 candidates filing for a National Interest Waiver would apply as an individual or through a business without a required PERM. A certified PERM application for the remaining E-B2 and E-B3 must be completed and certified prior to filing the I-140. The entire packet will be compiled to establish the candidates qualifications, to verify compliance with all regulations and when sponsored by a business, the financial viability of the company. The visa application processing time is currently taking between 4-6 months although there is some variance in different areas of the country and processing times are always subject to change based on the number of cases the government is processing. Once approved the individual may apply to adjust their status to lawful permanent resident if their priority date is current. The priority date is located on the initial receipt notice for the I-140 and should be compared to the Current Visa Bulletin. If already in the US, some workers may be allowed to continue working while waiting for the priority date to be reached. You can contact the Cauley Law Firm to determine if this would apply to you or your employee.
USCIS Process for Adjustment of Status
Once the priority date has been reach, the final process for completing the case would be filing to apply for permanent resident status or obtaining a “green card”. This process is done by filing form I-485 or the I-485 packet as several applications are involved. In some cases where the priority date is current at the time of filing, the visa application and application for permanent resident status may be filed at the same time or concurrently. This was the case with certain EB2 cases recently, however the priority dates for the current visa bulletin for EB3 is 5 years from being current. This means that although the petition for an immigration visa may be approved, the application to adjust status would not be filed for five years or until the priority date is current on the visa bulletin.
The information included on this page is general information as it relates to immigration services provided by the Cauley Forsythe Law Group, PLLC and does not constitute legal advice nor does it establish an attorney/client relationship. If you believe this information may assist you with your need for entry into the United States and would like legal guidance, you can contact Cauley Forsythe to learn specific information relating to this visa and how it may apply to your case.