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An Overview of Employment –Based Immigration:

Nonimmigrant Visas and Immigrant Petitions

Under US immigration law, there are a number of ways in which foreign nationals may work in the United States. The following discusses some of the most commonly used nonimmigrant visa classifications, as well as employment-based immigrant visa categories available for those who wish to acquire US permanent residence (the green card).

NONIMMIGRANT VISAS

B-1 BUSINESS VISITOR

The B-1 visa is designed for visitors for business. Applicants must demonstrate that they:

1. Have a residence in a foreign country, which they do not intend to abandon;

2. Intend to enter the United States for a specific, limited duration; and

3. Seek admission for the sole purpose of engaging in legitimate business-related activities.

Legitimate business-related activities do not include employment in the United States. Appropriate business activities under the B-1 visa include:

1. Engaging in commercial transactions;

2. Negotiating contracts;

3. Consulting with business associates;

4. Litigation;

5. Participating in scientific, educational, professional or business conventions, conferences, or seminars; or

6. Undertaking independent research.

Presently, B-1 visitors are granted admission for a period of time necessary to accomplish their business activities, not to exceed 6 months. Extensions of stay may be granted, up to a total period of stay of 1 year.

VISA WAIVER PROGRAM

The visa waiver program permits nationals from designated countries to apply for admission to the United States for 90 days or less as business visitors without the need to obtain a B-1 visa. 28 countries are part of the Visa Waiver Program: Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, the UK, and Uruguay.

Those who enter the US on the Visa Waiver Program may not extend or change their status in the United States.

Note: On February 20, 2002, Argentina was removed from the Visa Waiver Program due to the country’s economic collapse.

E-1/E-2 TREATY TRADER/TREATY INVESTOR

The E visa category was established to give effect to treaties between the US and other countries, which provide for reciprocal benefits to nationals of each country who conduct trade between the two countries or invest in the other country.

E-1 Treaty Trader classification may be granted to an individual who will be in the US solely to carry on trade (in goods &/or services) of a substantial nature either on the individual’s behalf or as an employee of an entity, which is owned and controlled at least 50% by nationals of the treaty country. (End note 1) More that 50% of the total volume of trade must be between the US and the treaty country. “Substantial trade” is defined as an amount of trade sufficient to ensure a continuous flow of international trade items between the US and the treaty country. This continuous flow contemplates numerous transactions over time. Treaty trader status may not be established or maintained based on a single transaction, regardless of how protracted or monetarily valuable the transaction. Although the monetary value of the trade item being exchanged is a relevant consideration, greater weight will be given to more numerous exchanges of larger value. There is no minimum requirement with respect to the monetary value or volume of each individual transaction. In the case of smaller businesses, an income derived from the value of numerous transactions which is sufficient to support the treaty trader and his or her family constitutes a favorable factor in assessing the existence of substantial trade.

E-2 Treaty Investor classification may be available to one who has invested or is actively in the process of investing a substantial amount of capital in a bona fide enterprise in the US and is seeking entry solely to develop and direct the enterprise. (End note 2).

The investment must not be in a marginal enterprise solely for the purpose of earning a living. Two factors are considered in determining whether an investment satisfies the marginality requirement:

1. The business could be profitable enough to provide more than enough income for the applicant and his or her family.

2. The economic impact of the business may be considered. For example, an applicant may show that the investment will expand job opportunities locally and/or that the income or return from such a business will have a positive significant impact on the local economy.

In determining what dollar amount will be considered a substantial investment, a proportionality test is used. The lower the cost (value) of the business, the higher a percentage of investment is required; the more expensive the business, the lower a percentage of investment is required. For example, a business costing $100,000 might require an investment of 75-100% to meet the test. A business requiring $10 million to purchase or establish would require a much lower percentage. In such a case, a $3 million investment (33%) might suffice in view of the sheer magnitude of the dollar amount invested.

The initial period of admission for E-1/E-2 status is 2 years. Extensions may be granted in increments of 2 years and there is no limit to the number of extensions available. Therefore, it is possible for an investor to remain in the US indefinitely in E-1/E-2 status so long as he/she continues to meet the eligibility requirements for E-1/E-2 status. However, the employment-based options for acquiring US permanent residence form the E-1/E-2 category is limited.

Spouses and unmarried children under 21 of E visa holders may be granted dependent status. As of January 16, 2002, spouses of E-1 treaty traders and E-2 treaty investors are authorized to work in the United States.

L-1 INTRACOMPANY TRANSFEREE:

L-1 Intracompany Transferee classification is available to a foreign national who has been employed full-time by a foreign entity for at least 1 year during the 3 years preceding the filing of the petition in a managerial, executive or specialized knowledge capacity and who seeks to enter the US temporarily in order to render his/her services to a parent, subsidiary, affiliate or branch of the foreign employer in a capacity that is also managerial, executive, or involves specialized knowledge. It is important to note that the foreign entity must continue to operate and do business (defined as the regular, systematic, and continuous provision of goods and/or services and not merely the presence of an agent or office). The US and the foreign entities must continue to maintain an appropriate qualifying relationship in order for L-1 status to be maintained.

The initial period of admission for L-1 status in 3 years (except in the case of a new US office, in which case the initial period of admission is 1 year). L-1 visa holders may receive extensions of stay in 2-year increments up to a total of 7 years for managers and executives (L-1A) and 5 years for specialized knowledge professionals (L-1B). Spouses and unmarried children under the age of 21 may be granted L-2 dependent status.

There are several advantages to L-1 classification. Unlike the E-1/E-2 visa categories, there are no treaty requirements. Additionally, L-1 classification as a multinational manager or executive lends itself quite nicely to US permanent residence. As with spouses of E visa holders, as of January 16, 2002, L-2 spouses are authorized to work in the United States.