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August 18, 2021

Foreign Investors – E-1 vs. E-2 visas, which one should I pursue?

Despite the wreckage that the COVID-19 pandemic has had on international travel, both investor and trade visas remain powerful options for foreign nationals seeking to immigrate to the United States.

The United States is the world’s largest recipient of foreign direct investment (FDI’s). In the year 2020, the United States received more than $156 billion through FDI’s. As a result, U.S. policymakers have always been keen to promote business travel to facilitate foreign trade and investments. The specific visas available for foreign investment and trade are the E-2 and E-1 visas, respectively. This article will explore the benefits and trade offs of each of these visas and discuss the eligibility requirements for each of them.

Who is Eligible for E-2 Visas?

E-2 Visas are issued to investors who are nationals of a “Treaty Country”. A Treaty Country is a country that has signed a treaty of commerce and navigation or a qualifying international agreement with the United States. In some cases, a country may be designated as a treaty country by legislation. Currently, the United States has a treaty of commerce and navigation with 136 countries, out of which the investors from 81 countries are eligible for E-2 Visas.

Does that mean that all nationals from Qualified Treaty Countries are eligible for E-2 Visas? No. E-2 Visas are provided to those investors who have invested or are in the process of investing a “substantial amount of capital” in a legal U.S. business. These investors are known as “Treaty Investors” and such business is known as the “Investment Enterprise”.

A Treaty Investor must be the 50% (or more) owner of the investment enterprise. If such an investor does not own at least 50% of the business then they must possess the operational control of such business.

What is the meaning of the term “Substantial Amount of Capital”? This is a relative term and there is no predefined dollar amount! Whether or not an investment is substantial will be determined on a case-by-case basis. Different businesses require different levels of capital. Hence, the amount of substantial capital for any business will depend upon the nature of such business.

The law provides that an investment must be substantial having regards to the total cost of either purchasing an already running business or establishing a new business. In other words, the investment must be proportionately higher than the cost of acquiring or establishing a business. Also, such investment must be sufficient for the smooth running of the business.

Does investing in a Non-Profit Organization make one eligible for an E-2 Visa? No, the E-2 Visa is provided to investors who have invested or who are in the process of investing money in a business producing goods or services for profit. Also, such business must be active, legal, and bonafide.

Does investing money in an entity operating at a loss mean I’m not eligible for an E-2 Visa? Not necessarily. As a general rule, the business in which the foreign national is investing money must have sufficient current and future earning capacity to generate income in excess of the reasonable living expenses of the investor and their dependents. In other words, if the investment enterprise is simply marginal—only generating income for the investor and their family— then the investor may not be eligible for E-2 classification.

But it is a known fact that most businesses require some time to generate sufficient income to start payments to their owners. The law provides that the investor may be eligible for E-2 classification if such business is at least capable of generating sufficient income within a period of five (5) years. If you have any questions about this point, please consult with an experienced immigration attorney.

What is the Difference between Treaty Investor and Treaty Trader?

Both treaty investors and treaty traders must be nationals of a designated treaty country as previously discussed. The treaty trader, classified under the E-1 visa, is for foreign nationals who enter, work, and stay in the United States with the sole purpose of engaging in “substantial international trade”. Unlike E-2 treaty investors, E-1 treaty traders do not invest a substantial amount of capital in a U.S. business.

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August 7, 2021

Change of Status or Consulate Processing for Non-immigrant visas?

By admin Non-immigrant

Every foreigner entering the United States of America has a conditional authorization granted by USCIS, the U.S. consulate, or the U.S. border. This is commonly known as a visa. Individuals who are recipients of non-immigrant visas come into the U.S. for specific purposes. Commonly for school, work, medicals, vacation, or something else.

If you are within the United States and require changing the purpose of your entry after you arrive, this is possible through a Change of Status. If you are in this situation, you may need to get a different visa depending on the entry requirements of your current non-immigration status. The new visa should be in the category that defines the change, such as switching from education to work.

There are various ways of getting a new non-immigrant status in the U.S. Each change offers benefits and some drawbacks. Discussing this with an experienced U.S. immigration lawyer should be considered before making a decision.

Consulate Processing

The consulate processing option is used strategically or to save time. For example, it is applicable when you are not in the U.S or if you travel abroad for a extended period of time. In this situation, you need to go to the U.S. consulate or embassy to get a new visa. This allows you to re-enter the country in your new status.

Change Your Status in The U.S.

For this option, you can submit your change of non-immigrant status application to the United States Citizenship and Immigration Service (USCIS).

This provision allows individuals to change their non-immigrant status from the U.S. Once this is approved, you will obtain a new status. However, no new visa will be issued.

Pros of Changing Your Nonimmigrant Status through Change of Status in the United States of America

The applicant is allowed to stay in the United States during the processing period.
Family members are usually allowed to change their non-immigrant status along with the primary visa applicant.
The primary applicant can avoid the hassle that comes with a visa application.
Changing your non-immigrant status allows you to pursue a different path either as a student, a skilled worker, or another available non-immigrant status.

Cons of Changing Your Nonimmigrant Status through Change of Status in the United States of America

During the processing time, you must stay in the United States. If you leave the United States, your application gets canceled.
Leaving the U.S. during the application process can result in denial and the requirement of reapplying at a consulate.
There is a possibility that your application might be denied. If that happens, you can be required to leave the U.S.
If you must travel outside of the country, you must obtain a matching visa stamp. The only exception is when you are traveling for less than 30 days to Mexico and Canada.

So Should You Change your Nonimmigrant Status in the U.S.?

This decision is dependent on the Eligibility and requirements.

The primary applicant has to be in the U.S. at the time of application.
Your immigration status during the period of the application period must be valid.
The change can only take place if you meet the requirement of the new non-immigrant status.
Remember that not all non-immigrant visas permit you to make such changes to your immigration status.
If you entered the country on a visa waiver program, you can’t change your immigration status.

Conclusion

The visa categories available for non-immigrants are over 40. Each of these categories has different limits and requirements. New doors might open up for those who decide to change their immigration status in the U.S.

It would be best if you considered the processing time and expiration dates before changing your non-immigrant status. We recommend discussing with an experienced U.S. immigration lawyer such as US Immi Visa, who can help arrange your Change of Status or Consulate processing. Contact us for a free consultation.

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July 17, 2021

How to file an H-1B1 Visa Application

By admin Employment-Based

Are you one of the nearly 6 million nationals of Singapore or one of the 19 million nationals of Chile who wants to come to the United States? If so, congratulations–if you are interested in working in the United States, you have a built-in path specifically for you through the H-1B1 visa.

Of course, this visa is not exactly a “free for all”– there are certain conditions that an applicant must satisfy in order to apply for an H-1B1, namely, they must demonstrate the following:

That the job offered is a “specialty occupation”, meaning that the occupation requires a theoretical and practical application of a body of highly specialized knowledge and a bachelor’s or higher degree in the specific specialty (or its equivalent) is the minimum entry requirement for occupation in the United States;
That the foreign national possesses a bachelor’s or higher degree in the specific specialty (or its equivalent); and,
That the employment is only for a “temporary basis” (i.e., although the H-1B1 can be renewed indefinitely, the foreign national must demonstrate that they do not intend to remain or work permanently in the United States).

However, assuming that an applicant satisfies these requirements, the H-1B1 process is an amazing opportunity. The primary difficulty in moving forward with this application is in knowing how to complete the process. Having successfully completed numerous H-1B1 applications (both through a foreign consulate and through change of status applications in the United States), we are well familiar with the process. We hope the following step-by-step guide provides you with assistance in understanding the general process of applying for an H-1B1 visa in greater detail:

1. Verify Petitioner’s Employment Identification Number (EIN) — Before proceeding with the filing, a U.S. petitioner should get their EIN verified by emailing a copy of EIN documentation to [email protected] . The subject line should say “Attn: LCA Business Verification Team”. It should only take a few hours on average for them to verify the EIN.

2. Obtain SOC/O*Net Code — Next, the Petitioner will need to confirm whether the offered job is in fact a “specialty-occupation” (i.e., one that requires at least a bachelor’s degree or its equivalent to perform) as required by federal regulations. It is most helpful to reference the following websites in selecting a code:
(1) For salary, consult with FLC Data Center: https://www.flcdatacenter.com/
(2) For SOC/O*Net Code, google occupation name and frequent O*Net site to find the most accurate code. https://www.onetonline.org/

3. File Labor Condition Application — After the EIN is verified and the SOC/O*NET code is selected, the Petitioner should then proceed with filing the ETA-9035 (e.g., the Labor Condition Application) with the Department of Labor at https://flag.dol.gov/. It takes approximately six (6) days for the LCA to be certified. Please note that the LCA should not be filed more than 180 days before the Employee’s proposed starting date.

4. Send LCA/Notice of Filing to Employer — While the LCA is pending with the Dept. of Labor, the Employer should either forward a “Notice of Filing” apprising other workers in the same employment position as the offered job, or, post the LCA itself at the place of employment. The employer should post the Notice of Filing or the LCA wherever the Employer normally publishes any notices.

5. Complete Forms and Supporting Documents — With all of the foregoing work done, the next step depends on whether the Petitioner is filing for a change of status in the United States or through consular processing is to complete the following forms:

a. Change of Status with USCIS

If the proposed employee is in the United States and wishes to file for a change of status without leaving the U.S., the employer should file the following forms with USCIS:
Filing Fees
Form I-129, fee of $460.00
ACWIA Fee (either $750.00 or $1,500.00 depending on whether the Employer has 25 or less employees)
Anti-Fraud Fee of $500.00
Form I-129
Form I-129H
Form I-129W
Certified ETA-9035; and,
All required documents (listed below).

b. Consular Processing
Alternatively, if the applicant is applying for an H-1B1 visa abroad, the Petitioner will not file any paperwork–the Beneficiary will complete the required DS-160 and schedule their own appointment at the foreign consulate, the filing fee is only for $205.00 USD. The Beneficiary will also need to bring all of the required documents to their interview for the H-1B1 visa.

Required Documents: To file the H-1B1 application, the following documents should be provided:

From the Employer:
Job Offer Letter
Job Description (Describe Duties, Hours, Proposed Salary, Etc.)
Employment Contract
Evidence that Business is Bona-Fide (i.e. Taxes, Utility Bills, Bank Statements, Photographs, etc.)
O*NET Job Summary
Postings of Similar Jobs (to show that they require BA/BS Degree, specialty occupations)
From the Employee:
Resume from Employee
Evidence of Employee’s BA/BS Degree (or Academic Equivalency Evaluation if they have a foreign degree)
If you are presently in the United States, Evidence of Maintenance of Non-immigrant Status (i.e. I-20s, I-94, etc.)
If applicable, evidence of qualifying relationship between derivative and primary applicant.

We hope the following information is helpful to you in considering the totality of the process involved in applying for an H-1B1 visa. The ImmiVisa Law Group is skilled in preparing H-1B1 applications in a number of different industries and job positions. We are available to provide further consultation with both employers and prospective employees to discuss this process further. Please schedule a consultation today for further questions.

Disclaimer: The article is provided only for general information, convenience and reference purpose only and should not be relied on as legal advice. Please consult with an attorney before proceeding with your application.

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July 2, 2021

How to Immigrate to the United States Without a Sponsor

By admin Immigration

I often field the question “how can I get work authorization in the United States without a job offer?” For many, the solution is to apply for a family-based immigrant visa through a spouse, parent, or child who is a resident or citizen. But for those who do not fall in this category (or are unwilling to sign up for the latest dating app to change that), there are a few options available for self-petitioning independent of any employer or relative.

Here is a list of the three most common visas available for aspiring applicants to apply standalone, without any family member or employer as a petition.

EB-1A Extraordinary Ability Green Card
The EB-1A is a self-petitioned immigrant visa for individuals with “extraordinary ability” in science, business, athletics, arts, and education who can show that they are at the “very top of their field of endeavor”. For additional information regarding the qualifications required for the EB-1A visa, please visit the USCIS Webpage for “Employment-Based Immigration: First Preference EB-1” or contact our office for a consultation.

While it is difficult to quantify what a person of “extraordinary ability” looks like, we have had success with a vast array of applicants from a variety of backgrounds and industries, including the following:

A musician who wrote music for popular YouTube artists
A mixed-martial artist trainer who trained several prominent UFC and Bellator Fighters
An aerospace engineer who worked for major aerospace companies, possessed proprietary patents in the industry, and had published books related to aerospace
A model who had won a major international modeling competition and had worked as a brand ambassador for various corporations
A corporate attorney who worked for some of Europe’s largest law firms and was renowned as a world subject-matter expert

One of the benefits of the EB-1A is the availability of premium processing, where an applicant can pay an additional fee of $2,500 and USCIS will adjudicate the application (e.g., either approval or issuance of a request for evidence) within 15 days. For these reasons, I generally recommend anyone who is eligible for EB-1A to pursue this option over other employment-based visas.

EB-2 National Interest Waiver (NIW)
The EB-2 NIW is a self-petitioned immigrant visa for foreign nationals who either (1) are professionals holding an advanced degree or its equivalent, or (2) have exceptional ability in the fields of sciences, arts, or business. Similar to the EB-1A, the EB-2 NIW provides a much faster process for applying for a green card without a petitioning employer. The EB-2 NIW excuses a foreign national from having to obtain a labor certification (e.g., generally a prerequisite process for filing an employment-based immigrant petition for a green card that is lengthy and expensive) filed by a petitioning employer.

If you have an advanced degree (i.e., baccalaureate or foreign evaluation plus five years of post-baccalaureate, progressive work experience, master’s degree, doctoral degree, etc.), or have sufficient evidence that you possess “exceptional” ability in science, art, or business (evidenced by providing certain evidence listed at the USCIS Website for Employed-Based Immigration: Second Preference EB-2) you should consider applying for a national interest waiver.

Perhaps the most difficult aspect of this application is in determining whether an applicant’s “proposed endeavor”, the foreign national’s plan to continue work in the United States, possesses substantial merit and national importance to the United States. While it is difficult to say for certain what a qualifying endeavor looks like, we have had success with a vast array of applicants from a variety of backgrounds and industries, including the following:

A pharmacist who wanted to work with the United States Military
A physician whose endeavor was focused on conducting vaccination research for diseases afflicting livestock
An electric engineer whose endeavor was dedicated to improving transportation safety of railroads
A petrol-chemical engineer who wanted to conduct proprietary research related to environmentally friendly oil extraction methods.

Again, as long as you can demonstrate that you are qualified and that your endeavor is in the national interest of the United States, it is worth determining if an EB-2 NIW is right for you. Please contact our office should for questions regarding your eligibility for a national interest waiver.

E-2 Treaty Investor
The third most common “standalone” visa that our office works with is the E-2 visa. E-2 classification allows foreign nationals from certain treaty countries (qualifying countries are listed at the U.S. Department of State Website) to come to the United States for the purposes of investing and directing a bona fide business in the United States.

To qualify, an applicant must demonstrate that they have invested a “substantial amount” of capital in a U.S. business and demonstrate that they own at least 50-percent ownership in the investment enterprise.

The question I often encounter is, what exactly counts as a “substantial amount of capital”? The law does provide some additional guidance to help answer this question. USCIS policy guidance states that substantial capital may be found where the amount of capital invested is enough to ensure that the investor can successfully operate the enterprise. Generally, the lower the cost of the enterprise, the higher, proportionally, the investment must be to be considered substantial.

As a benchmark for the inquisitive, we have experience with numerous E-2 visas through a number of various businesses, including in the following industries:

Real Estate “Fix and Flips”
Hospitality Management
Retail Stores
Telecommunication Operations
Brick-and-Mortar Restaurants
Food Trucks

What Should YOU do?

I list only three of the most common visa types I encounter for applicants who are still looking to immigrate to the United States or otherwise gain work authorization without a sponsoring employer, job offer, or relative. There are other visas, including the E-1 Treaty Trader nonimmigrant visa and the EB-5 Immigrant Investor immigration visa, that I did not discuss in this article that are also available as visa applications independent of a petitioning employer. For more information regarding what visa or application is best for you, please reach out to our office today.

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June 18, 2021

The ins and outs of a TN Visa

By admin Employment-Based

1. WHAT IS A TN VISA?

TN stands for Trade NAFTA (North American Free Trade Agreement). It is a non-immigrant employment visa that allows citizens of North American countries, namely Canada and Mexico, to engage in business activities at a professional level within the U.S. The purpose was to strengthen business and trade relations between the three countries; the United States, Canada, and Mexico.

Among the types of professionals eligible to seek admission as TN non-immigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers.

There are two types of TN status.

TN-1 is for Canadian professionals,
TN-2 is for Mexican professionals.

The TN Visa is valid for one year, but it is granted for three years as per the current laws and regulations. The TN visa can be renewed indefinitely until you have the intention to stay permanently in the United States or if there is no longer employment under the NAFTA list.

2. REQUIREMENTS FOR TN VISA

There are few requirements a Mexican or Canadian have to meet before applying for a TN Visa.

The applicant has to be a citizen of Canada or Mexico (Permanent Residency won’t suffice).
The profession should be on the NAFTA list. There are 60 professions on the list.
There has to be a pre-arranged part-time or full-time job with a U.S. employer.
There is no intention to stay permanently in the U.S.

2.1 TD VISA FOR THE SPOUSE AND CHILDREN OF TN VISA HOLDERS

A TD visa is the dependant visa for TN visa holders, which is valid until the TN visa holder’s visa expires. This visa is for spouses and children under 21 years of TN visa holders eligible for non-immigrant TD visas. They do not qualify for a work permit but are permitted to study in the United States.

3. PROS OF TN VISA

A TN visa holder can work as a professional in the U.S for a U.S. company or a Canadian or Mexican company doing business in the U.S.
The process for Canadians under this category is relatively quick, with no petition required. Canadian’s can obtain a TN visa at the border crossing.
While the requirements are fulfilled, the TN visa holder can renew indefinitely.
TD visa/status for the dependents of the TN visa holders is valid until the time the TN visa holder’s status expires.
There is no cap or limit for Canadians under this category.

4. CONS OF A TN VISA

The TN visa is not a dual intent visa. This means you cannot have the intention to stay in the U.S permanently.
The spouse and children are not eligible for a work permit or authorized to work in the U.S.
The profession has to be listed in the NAFTA list, which is currently only 60 occupations.

5. CONCLUSION

The TN visa, or TN status as it is sometimes called, is a type of visa that a citizen of Canada or Mexico can apply for. The applicant must have a job listed in the NAFTA list before applying. The application procedure is not complicated, and for Canadians, it is much simpler. The Canadians or Mexicans who do not come under the list of NAFTA professionals can apply for another type, i.e., H1B visa. These other visas allow for Dual Intent, meaning if the applicant intends to become a permanent resident of the U.S., they can apply for it with that intention. There are other visas like L1 or E visas. The applicant should apply as per his purpose, duration, and intention of stay. The applicant should also remember the merits and demerits of the visa and apply accordingly.

At US Immi Visa, we are a dedicated team specializing in TN and TD visas, able to help you through the entire process. Whether you are a Mexican or Canadian citizen, we can help guide you through the process. Contact us today for a free consultation to discuss TN visas.

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October 17, 2020

Why You Should Not Wait for the Presidential Election to File Your Immigration Application

By admin Uncategorized

“I’ll apply once Trump is gone” — I’ve heard this phrase echoed numerous times in 2020, and particularly since the onset of the COVID-19 Pandemic. While I understand the underlying sentiment expressed (e.g. immigration applications may be more favorably adjudicated under a new administration), I caution anyone with this line of reasoning to reconsider any delay in applying for immigration benefits for the following reasons:

USCIS Will be Increasing the Costs of a Majority of Immigration Applications

First, delaying submission is very likely to result in having to pay increased application costs. Beginning October 2, 2020, the Department of Homeland Security (DHS) will be adjusting USCIS fees by a weighted average increase of 20 percent, including additional new fees for certain immigration benefits.

For example, the total cost of applying for permanent residency through a family-based petition (e.g. with concurrently filed work permit and travel authorization applications) is increasing by 46.62-percent (i.e. $1,760.00 to $2,830.00), while Citizenship applications are increasing by approximately 46.97-percent ($725.00 to $1170.00). Employment visas are not exempt from this increase–L visas are increasing by 75-percent, O visas are increasing by 53 percent, and H-1B Visas are increasing by 21 percent. Given the limited time remaining before the fee increases go into effect, those with financial constraints should consider applying as soon as possible.

UPDATE: On September 29, 2020, Judge Jeffrey S. White, Federal District Court Judge of the North District Court of California, issued a preliminary injunction and stay of the effective date of the Final Rule of the fee increase. Until the order is lifted, Applicants will not have to pay the higher fees as stated in the Final Rule. Because the injunction is only temporary, we still recommend filing your immigration application sooner rather than later before the Final Rule ultimately goes into effect.

The Recently Updated Public Charge Rule has Been Enjoined During COVID-19

Second, applicants for permanent residency or applicants for changes/extensions of nonimmigrant status should take advantage of the fact that USCIS is not applying the February 24, 2020 Public Charge Rule. As long as the July 29, 2020 Southern District of New York Injunction is in effect, USCIS will apply the 1999 public charge guidance that was in place prior to February 24, 2020. Under the 1999 rule, applicants do not need to complete Form I-944, Declaration of Self Sufficiency. The 1999 public charge rule is far less stringent than the 2020 rule, and requires much less documentation to satisfy the adjudicating officer’s determination that an immigrant is not likely to become a public charge. However, there is no indication regarding how long the court injunction will remain in place–applicants should take advantage of applying for immigration benefits as long as this injunction is in place.

Incumbents are Hard to Defeat

There is a substantial chance that President Trump will win reelection. In the last 100 years, only three U.S. incumbent Presidents have ever lost (Herbert Hoover in 1932, Jimmy Carter in 1980, and George H.W. Bush in 1992). While I am no polling expert, aspiring immigrants should consider the realistic possibility of the President’s reelection and contemplate how they will navigate the U.S. immigration system going forward.

In so doing, you should consider that the most beneficial changes to immigration law (from the perspective of an immigrant) occurred under Ronald Reagan’s watch and were because of Ronald Reagan. President Reagan was conservative. Conversely, some of the most sweeping changes to U.S. immigration law that had a negative impact upon immigrants were signed into law by President Clinton. President Clinton was a democrat. Similarly, approximately five times the amount of people were deported during the democratic Obama administration then were under the previous five administrations combined. Simply put, do not wait to pursue relief that you are otherwise eligible for because you think a different President will benefit you.

Immigrating to the United States remains a complicated and often difficult task and it is essential to consult with an expert regarding your immigration issues, now more than ever.

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