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Immigrant and Non-Immigrant Visas for Business People

What is a non-immigrant visa?

Non-immigrant visas allow foreign nationals to visit the United States for a limited duration and purpose depending on the visa classification. Non-immigrant visa-holders must carry on the activities covered by their visa classification. If their plans change, they may need approval from the United States Citizenship and Immigration Service. Most foreign nationals arriving in the United States arrive as non-immigrants. Time in non-immigrant status does not count towards naturalization regardless of how long someone has lived in the United States.

What kind of non-immigrant visas are available for business people?

Business people can qualify for the L (transferee executive and managers; also specialized knowledge workers) and E (treaty traders and treaty investors) non-immigrant visas.

What is an immigrant visa?

Immigrants are admitted to the United States to live and work as permanent residents. Immigrants admitted under an occupational classification may subsequently change their career or employment plans without permission from USCIS or loss of status. Time spent in permanent residence accrues towards naturalization.

What kind of immigrant visas are available for business people?

Business people can obtain immigrant visas under the Employment Based First Preference (EB-1) for Multinational Executives and Managers (and certain outstanding researchers) and under the Employment Based Fifth Preference (EB-5) for Alien Entrepreneurs.

Are these the only employment based options for foreign nationals in the US?

No. There are numerous other employment or occupation based immigrant and non-immigrant classifications. If no business visa discussed here meets your needs, there may very well be another classification that does.

Should I seek to obtain a business or employment related visa when I have a relative who can petition to obtain immigration benefits for me?

The answer to this depends on your individual facts. If you are married to a US citizen, you are the unmarried child under 21 years of age of a US citizen, or the parent of a US citizen who (the citizen) is over 21 years of age, then almost certainly you will be better off pursuing your family based options. If your US citizen relative is a brother or a sister, then almost certainly, you will be better off trying other options. In most other cases, your situation will require individualized analysis.

Is is possible or advisable to shift between the various non-immigrant and immigrant classifications?

It depends. One can usually “adjust status” from a non-immigrant to an immigrant status or reenter the US via consular processing in a different status. It is possible to pursue more than one immigrant option at the same time. However, one should never, without first seeking competent legal advice, simultaneously request more than one non-immigrant status. Of course, “change of status” from one non-immigrant to another non-immigrant status should be sought whenever appropriate. Several nonimmigrant business visas permit “dual intent” in that a requested non-immigrant status will not be denied simply because the applicant is also pursuing immigration options.

“L” non-immigrant Intra-company Transferees

Can an overseas business transfer its managers or executives to the United States to run their US branch?

Yes, overseas executives and managers (and specialized knowledge workers) could qualify for the L visa.

What requirements do the company’s offices in the US and the foreign country have to meet?

The US and overseas offices can be related as parent and subsidiary, sister concerns, or branch offices as long as they are under common control. Both offices must remain in existence for the duration of the L visa holder’s stay in the US. The overseas and the US offices must both be actively engaged in the production of goods and services. The goods and services need not be for international export/import trade.

What requirements does the employee have to meet?

The employee has to have worked for a total of one year of the past three years in a managerial or executive capacity in one or more of the company’s overseas locations; and intends to serve in a similar capacity in the US. The qualifying one year period spent as a manager or executive should have been served outside the US although time spent in the US can count towards the three years of prior employment with the employer.

Can an L visa holder be self-employed?

Self-employed persons do not qualify for L visas although majority shareholders are not disqualified provided they and the enterprise generally meet the the other ‘L’ requirements.

Can the L visa holder come to the US to establish a new office?

Yes, this is possible. There must be evidence that the office has acquired premises and that the transferee will be performing appropriate functions upon arrival. Initial approval is for one year and USCIS will scrutinize the application to ensure that there are executive/managerial functions to be performed.

“E” non-immigrant Treaty Traders and Investors

Can foreign nationals come to the United States to work in an enterprise involved in export and import of goods and services between the US and the foreign country?

An ‘E’ treaty trader visa enables the holder to come to the US to establish and direct an enterprise engaged in international export or import trade in goods and services between the US and the treaty national’s country. The catch is that only nationals of treaty countries are entitled to an ‘E’ visa. The Department of State has an online list of these countries-there is a link on our firm’s website directing you to the list.

Can the trading enterprise engage in trade with third countries or does the trade have to be exclusively between the foreign country and the United States?

A substantial (50%) portion of the enterprise’s international trade must be between the US and the treaty trader’s home country.

Can foreign nationals who invest in the US live there in non-immigrant status?

An ‘E’ treaty investor visa enables foreign national investors to live in the United States as non-immigrants. The catch is that the privilege is limited to nationals of treaty countries-use the link from our website to access the State Department website containing an online list of these countries.

What requirements does the treaty investor have to meet?

The investor has to be an owner or an executive/managerial employee of the business. The investment must be in a substantial commercial enterprise. The investment cannot be debt financed. The investment must be viable. The enterprise must be engaged in the production of goods and services for the marke place.

How much investment is substantial?

Substantial investment has to be enough to ensure success relative to the aims of the enterprise. For a small concern, this may be a high proportion of the eventual capital requirement. For a larger concern, the proportion may be smaller. The investment has to have substantial economic impact on the United States or generate revenue in excess of what it would take to support the investor and the investor’s immediate family. The minimum investment is likely to be in the low to mid-six figures but there is no prescribed cut-off figure.

Can persons other than the treaty investor own the enterprise?

Yes, so long as nationals of the same treaty country as the treaty investor own at least 50% of the enterprise.

EB-1 Multinational Managers/Executives

How can multinational executives and managers qualify to immigrate to the United States?

Generally, someone who qualifies for an L visa, other than a specialized knowledge employee, would also qualify as a multinational executive or manager. However, the US affiliate or branch has to have been in existence for at least one year at the time the application is filed.

Can I apply for an L visa and apply for immigration benefits as a multinational executive or manager?

Generally, yes, as the L visa is a a “dual intent” visa. But not during the initial year in L status in a new business situation.

Does the multinational executive or manager require labor certification?

No, this classification is exempt from labor certification.

Are visa numbers current for this class of immigrants or do I have to wait several years for approval or after approval until a visa number is available?

Visa numbers for this class of immigrants have historically remained current. Use the convenient link from our website to check the visa bulletin which is updated every month.

EB-5 Alien Entrepreneurs

How can foreign nationals become permanent residents under the alien entrepreneur immigrant classification (Fifth Employment Based Preference)?

The foreign national must undertake an at-risk investment of $1m (reduced up to $500k in high unemployment areas; increased up to $3m in high employment areas) of lawfully acquired and lawfully transferred funds in an enterprise hiring 10 full time employees. You can finance the investment through secured or unsecured debt as long as the foreign national is personally liable and the assets of the qualifying new business are not used to secure the debt. The workers have to be legally eligible to work and cannot be members of your immediate family.

Does the alien entrepreneur need to have any prior work experience?

No. You do need a credible business plan though.

Does the alien entrepreneur have to start a business from scratch or buy an existing business?

You can establish a new enterprise from scratch, or purchase an existing business that is simultaneously restructured resulting in a new business, or a troubled business (one that has lost 20% or more of its net worth in the past two years), or expand an existing business by at least 40% in numbers of employees or net worth (provided that minimum investment amount and minimum job creation threshold is met).

How much time does the alien entrepreneur have to complete the investment and hire ten full time employees?

The investment and hiring must be completed within two years of the approval of the initial petition. At the end of the two years, the alien entrepreneur must apply to USCIS for removal of condition on residency. If the investment and hiring requirements have substantially been met and the business appears viable, USCIS will grant condition removal.

Does the alien entrepreneur have to work in the business?

The alien does not have to work in the business. However, the alien must actively participate in the management of the investment and the business. Certain types of limited partnership arrangements may satisfy the requirement.

Can an alien entrepreneur qualify as an immigrant through the purchase of a franchise business?

Yes, indeed. In fact a franchise business can offer a number of advantages such as a credible business plan and credible employment projections from the franchisor.

Are visa numbers current for this classification?

Yes. Based on past experience, visa number availability should not be an issue.