E Visa

E-1 and E-2 visas are available to citizens of foreign countries that have a treaty of commerce and navigation, or a bilateral investment treaty providing for nonimmigrant entries, with the United States. E-1 and E-2 visas are based on different treaties, however, and depending on which country the beneficiary is from, he or she may not be eligible to apply for both visas. Bilateral Investment Treaties (BIT) allow for E-2 Treaty Investor status only, whereby Free Trade Agreements (including NAFTA/Fast Track) allow for both E-1 and E-2 visas.

GENERAL

The E-1 (“Treaty Trader”) visa is specifically designed for alien business owners, business managers, and employees who are required to stay in the U.S. for prolonged periods of time to oversee or work for an enterprise that is engaged in trade between the U.S. and the treaty country which qualified the treaty trader for the E-1 designation.

REQUIREMENTS

To qualify for an E-1 (Treaty Trader) visa, an alien applicant must meet certain specific requirements, namely:

-The alien must be a citizenof a treaty country (refer to our chart on the General Description of E-1/E-2 page for a list of such countries);

-The alien must engage in substantial trade with the United States;

-The alien must engage in principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification (trade qualifies as “principal trade” between the U.S. and the treaty country, when more than 50% of the total volume of international trade is between the U.S. and the trader’s treaty country.).

GENERAL

The E-2 (“Treaty Investors”) visa is available to an alien who is a citizen or national of a treaty country and who wishes to enter the U.S. solely to develop and direct the operation of an enterprise in which he or she has invested, or is in the process of investing a substantial amount of capital. Specific criteria must be met to qualify for either visa.

REQUIREMENTS

To qualify for an E-2 (Treaty Investor) visa, an alien applicant must meet specific requirements:

-The alien must be a national of a treaty country (refer to our chart on the General Description of E-1/E-2 pagefor a list of such countries);

-The alien must have invested, or be investing, a substantial amount of capital in an enterprise in the U.S.;

-The alien must be seeking a U.S. visa solely to develop and direct this investment enterprise. This can be proven by evidencing that the alien owns at least 50% of the enterprise, or that he/she possesses operational control of the enterprise through a managerial position, etc.

The USCIS considers investment to be the placement of capital, by the treaty investor, into an enterprise with the intention to generate profit. Such investment can include funds or other assets.

H-1B Visa

The H1B visa classification permits a foreign national to work in the United States for a temporary period. It is available for offers of employment that are in a specialty occupation*. A persona may hold H1B status for a maximum of six years, and it may be issued in increments of up to three years by the USCIS. An employee may receive extensions of H1B status beyond six years in certain circumstances, if s/he is in the process of applying for employment-based permanent residence (commonly referred to as the “green card”). H1B visas are numerically limited, with a total of 85,000 visas available each fiscal year (20,000 of these visas are restricted to individuals who have received master’s degrees or higher from U.S. colleges of universities). This limitation is referred to as the H1B cap.

*The H1B visa is also available for offers of employment as a fashion model of distinguished merit and ability.

The qualifications for an H-1B visa are:

1) A Bachelor’s degree or Masters Degree (or the foreign equivalent degree from your Country), OR

2) 12 years work experience, OR

3) A mix of further education + work experience

-For a specialty occupation H1B petition, the employee must have a bachelor’s degree or the equivalent experience.

-The employer for the H1B petition must obtain a labor condition application (LCA) from the U.S. Department of Labor before filing the H1B petition with the USCIS.

-An employee who has previously received an H1B visa, or been granted H1B status is generally exempt from the numerical limitations.

-An employee who is presently employed in H1B status may utilize the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21) to transition their H1B to a different employer.

-The spouse and minor child/ren of an H1B employee are authorized to live in the United States in H-4 status, and to study, but are not permitted to work.

If the person is currently working on an H-1B visa for one employer (or has worked in the recent past), and when such person changes jobs to another employer, the employer has to file a new H-1B petition for the employee. Many people, including some immigration attorneys, call this process an “H1 transfer”. Even in this document, we refer to the new petition by the new employer as an “H-1B transfer”, solely for the ease of describing it. It is very important to understand that there is really no concept of “transfer”. Nothing gets transferred from one employer to another employer, except the employee itself. The previous employer does not have to “transfer” something to the new employer, the previous employer does not even have to know about the new employer.

Therefore, when people say “H1 transfer”, it is actually just a new H-1B petition, all over again, without the restriction of the H-1B cap.

When the new petition is filed by a new employer, it may generally be with a request to extend the H-1B status. As nothing gets transferred, neither the new employer nor the employee needs to take any permission from the previous employer to file a new H-1B petition.

An H-1B visa is normally issued for the period of validity of the approved H-1B petition (maximum of three years). The H-1B visa may be extended for another three years. Therefore, the H-1B worker is likely to need a renewal of his visa if he or she intends to remain in the United States up to the six-year maximum period of eligible stay. If the H-1B worker never leaves the U.S. during the six-year period, a new visa is not required. If, however, the worker needs to travel abroad after expiration of his or her original H-1B visa, a new visa must be obtained in order for the H-1B worker to re-enter the U.S.

Please note that the H-1B visa must initially be issued at a consular office abroad. (Therefore, e.g., a “change of status” from B-1 or B-2 or F-1 to H-1B requires the beneficiary to obtain the initial H-1B visa at a consular office abroad in order to re-enter the U.S.)

L-1 Visa

The L-1 visa is a temporary non-immigrant visa which allows companies to relocate foreign qualified employees to its U.S. subsidiary or parent company. The qualified employee must have worked for a subsidiary, parent, affiliate or branch office of the company for at least one year out of the last three years. The U.S. company must be a parent company, child company, or sister company to the foreign company. The L1 visa may also include non-profit, religious, or charitable organizations.

 

The L-1 visa is a good way for small or start-up overseas companies to expand their business and services to the United States. This is advantageous to smaller companies because it allows for the transfer of a highly proficient manager or executive who has direct knowledge of operations, allowing the setup of a new branch in compliance with the goals and objectives of the company’s main office. However, since the USCIS will scrutinize L visa petitions filed by lesser-known companies more closely, professional consultation with an experienced immigration lawyer is strongly recommended for these types of small businesses.

 

L1 visas can also be used by multi-national companies. When a multi-national company is developing a new market in another country, it may become necessary to have some employees with specialized knowledge work in the newly established office. Furthermore, such companies may have policies of international rotation of managerial level personnel to assure that all key personnel within a company have equal opportunity for career advancement when an appropriate position becomes open in any location around the world. Cross-fertilization of ideas among high level employees and executives enhances a company’s competitiveness; this exchange often results in innovation essential to a company’s reputation and development. A regular rotation of key personnel improves and ensures uniformity of service and procedure within the company at a global level.

Requirements

To qualify for L-1 visa application, the Petitioning Employer must:

-The company must have a qualifying relationship with a foreign company, such as a parent company, branch office, subsidiary, or affiliate of the foreign company. These are collectively referred to as qualifying entities or qualifying organizations. The entities may include corporations, non-profits, religious or charitable organizations. For more information on qualifying entities, Please visit Qualifying Entities.

-The company must also be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1. While the business must be viable, there is no requirement that it be engaged in international trade.

GENERAL

L-1A visas are designed for intra-company executive transferees coming to work in the United States. The L-1A visa holders must have been employed in an executive or managerial capacity for the foreign company at an overseas location continuously for at least one year out of the past three years. In addition, the L-1A visa allows a company which does not currently have a U.S. office to send an executive or manager to the United States in order to establish one. L1A visa is granted initially for one year for a new company in the US or three years for a US company with more than one year in existence, with extensions available in two-year increments, with a total stay not to exceed seven years.

REQUIREMENTS

-The alien employee must have worked abroad for the overseas company for a continuous period of one year within the three years immediately preceding his or her admission to the United States. Any time spent working in the United States will not count toward the one year of required employment.

-The employee must have been employed abroad in an executive or managerial position, otherwise known as a qualifying position. For more information on qualifying positions, Please visit qualifying positions.

-The employee must be coming to the U.S. to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.

-The employee must be qualified for the position by virtue of his or her prior education and experience.

-The L-1 visa holder must intend to depart the United States upon completion of his or her authorized stay.

GENERAL

L-1B are designed for professional employees with specialized knowledge. An example of specialized knowledge personnel would be an individual who possesses proprietary knowledge about a company’s product and who travels to the U.S. to impart his or her specialized knowledge to new U.S. employees. In addition, companies who currently do not have an office in the United States can use the L-1B visa to send over an employee with specialized knowledge to help establish one. An L1B visa is issued initially for three years with one two-year extension for a maximum of five years stay.

In both cases, the U.S. company and foreign company must be related in a specific way such through a parent/subsidiary relationship or through an affiliated employer.

REQUIREMENTS

-The alien employee must have worked abroad for the overseas company for a continuous period of one year within the three years immediately preceding his or her admission to the United States. Any time spent working in the United States will not count toward the one year of required employment.

-The employee must be seeking to enter the United States to render services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.

-The L-1 visa holder must intend to depart the United States upon completion of his or her authorized stay.

O-1 Visa

O-1 Status is a non-immigrant status category for aliens of extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics. This is an employment related status that allows qualified aliens to live and work in the United States. O-1 petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent on behalf of the beneficiary. The O-1 visa is a dual intent visa, meaning that the beneficiary may simultaneously seek permanent resident status while in the U.S. on O-1 without worrying about preconceived intent issues.

There are several different types of visas in the O category:
1. O-1A: Individuals with an extraordinary ability in the sciences, education, business, or athletics.
2. O-1B: Individuals with an extraordinary ability in the arts or the extraordinary achievement in the motion picture or television industry.
3. O-2: Individuals who will accompany an O-1 individual to assist in a specific event or performance.
4. O-3: Individuals who are the spouse or children of O-1s and O-2s.

GENERAL

For these fields, the alien must show that he/she is in the top of his respective field, either in the sciences, education, business, or athletics. This can be established through evidence of receipt of a major, internationally recognized award such as a Nobel Prize. In absence of such an award one can establish himself as a qualifying alien through other types of evidence.

REQUIREMENTS

In absence of an award such as a Nobel Prize, an alien can establish himself as a qualifying alien through at least three of the following types of evidence:

-Documentation of receipt of lesser nationally (not necessarily U.S.) or internationally recognized prizes or awards for excellence in the field of endeavor;

-Documentation of membership in associations in the field of endeavor which require outstanding achievements of their members, as judged by recognized national or international experts in their fields;

-Published material in professional or major trade publication or in the major media about the alien and relating to the alien’s work in the field of endeavor;

-Evidence of participation as a judge (individually or as a part of a panel) of the work of others in the alien’s field;

-Evidence of scientific, scholarly, or business related contributions of major significance in the field of endeavor;

-Evidence of authorship of scholarly articles in the field, in professional journals or other major media;

-Evidence of performance in a critical or essential capacity for organizations or establishments with distinguished reputations;

-Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others; and

-Other comparable evidence

GENERAL

For the arts, the alien must show that he has acquired “distinction” in his artistic field.
“Distinction” means a high level of achievement as evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that the person is described as prominent, leading, or well-known in the field of arts:

Persons in the motion picture or television industry must show a very high level of accomplishment evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent that the person is recognized as outstanding, notable, or leading in the industry.

Under these standards the requirements under the motion picture or television industry are somewhat higher than those for the arts. In either case, the forms of evidence to be used to establish the qualification is the same. The alien may establish qualification through evidence of nomination or receipt of a major, national or international recognized award such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award.

REQUIREMENTS

In absence of an award such as a those listed above, one can establish oneself as a qualifying alien through at least three of the following types of evidence:

-Having been or will be performing a lead or starring role in productions or events which have a distinguished reputation (as evidenced by critical reviews, advertisements, press releases, publications contracts, or endorsements;

-Critical reviews or other published material in professional or major trade publication or in the major media by or about the alien which show that the alien has achieved national or international recognition or achievements;

-Evidence of performance in a lead, starring or critical role for organizations or establishments with distinguished reputations;

-Evidence of a record of major commercial or critically acclaimed successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

-Evidence of significant recognition for achievements form organizations, government agencies, or other recognized experts in the field;

-Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others; and

-Other comparable evidence.

P-1 Visa

Under U.S. Immigration Law, the non-immigrant P-Visa category is reserved for aliens who wish to come to the United States to perform services as an internationally recognized athlete, entertainer, and/or performer. Additionally, spouses and minor children of a P-1, P-2 or P-3 alien may accompany them to the United States on a P-4 visa.

The following evidence is required to accompany every type of P nonimmigrant petition:

-Copies of any written contracts between the petitioner and the alien beneficiary or, if there is no written contract, a summary of the terms of the oral agreement under which the alien will be employed;
-An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities;
-A written consultation from a labor organization; and
-Any other evidence necessary for the alien’s specific P category.
The petitioner must also submit evidence that establish the alien’s ability. The necessary types of evidence that must be submitted with the P-Visa petition are as follows:
-Affidavits, contracts, awards and similar documentation must reflect the nature of the alien’s achievement and be executed by an officer or responsible person employed by the institution, establishment, or organization where the work was performed.
-Affidavits written by present or former employers or recognized experts certifying the recognition and extraordinary ability, or, in the case of a motion picture or television production, the extraordinary achievement of the alien, which shall specifically describe the alien’s recognition and ability or achievement in factual terms. The affidavit must also set forth the expertise of the affiant and the manner in which the affiant acquired such information.

A legible copy of a document in support of the petition may be submitted in lieu of the original.

GENERAL

The P-1A classification is available to an alien who is an internationally recognized athlete coming to the United States temporarily to participate in a specific athletic competition, individually or as a part of a group or team. If travelling to the United States as an individual, then the athlete must be internationally recognized to have obtained a high level achievement. This must be evidenced by a degree of skill and recognition substantially above that ordinarily encountered so that the athlete is renowned, leading or well-known in more than one country.

If the alien will be travelling as a part of an athletic team to participate in team events, then that team must have achieved significant international recognition in the sport. In addition, the eventin which the team is participating must be distinguished and require the participation of athletic teams of international recognition. Essential support staff for either an individual or the team may also apply for a P-1A visa.

REQUIREMENTS

Just as with all P petitions, the P-1A athlete’s U.S. employer, or agent in the case ofmultiple employers, must first file a Form I-129 (Petition for a Non-Immigrant Worker) with the appropriate USCISservice center (USCIS Vermont Service Center 4 Lemnah Drive St. Albans, VT 05479-0001, USCIS Vermont Service Center 75 Lower Welden Street St. Albans, VT 05479-0001, or USCIS California Service Center P.O. Box 10825 Laguna Niguel, CA 92607), along with the $325 application fee per person, and the required supporting documentation:
1. A written consultation from an appropriate labor organization describing the work or services to be performed in the U.S. and the alien’s qualifications for such work. However, if no appropriate labor organization exists, then this requirement will be excused;
2. A copy of the contract with a major U.S. sports league or team or a contract in an individual sport commensurate with international recognition in the sport, if such contracts are normally utilized in the sport;
3. An explanation of the event and itinerary; and
4. Documentation of at least two of the following:
o Evidence of having participated to a significant extent in a prior season with a major U.S. sports league;
o Evidence of having participated to a significant extent in international competition with a national team;
o Evidence of having participated to a significant extent in a prior season for a U.S. college or university in an intercollegiate competition;
o A written statement from an official of a major U.S. sports league or an official of the governing body of the sport which details how you or your team is internationally recognized;
o A written statement from a member of the sports media or a recognized expert in the sport which details how you or your team is internationally recognized;
o Evidence that you or your team is ranked, if the sport has international rankings; or
o Evidence that you or your team has received a significant honor or award in the sport.
Once the USCIS has approved the I-129 petition, the alien may apply at a U.S. embassy or consulate for their P-1A visa, which they will present at a port of entry to request admission into the United States.

GENERAL

The P-1B classification is designated for aliens who wish to come to the United States temporarily to perform as a member of an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. In order to qualify, the entertainment group must have been established and performing for at least one year. In the case of a solo artist or entertainer who traditionally performs with back-up singers, the act can be classified as a group as long as a minimum of 75% of the members of the entertainment group must have had a substantial and sustained relationship with the group for at least one year. If they do not meet the 75% rule, however, the solo artist must qualify for an O-1 visa and the musicians as O-2s.

The individual alien’s reputation is not as important for P-1B, as what really matters is the reputation of the group overall. The entertainment group must be internationally recognized, with a high level of achievement in their field evidenced by a degree of skill and recognition substantially above that ordinarily encountered.

REQUIREMENTS

As with all other P petitions, the alien’s employer or agent acting as the petitioner must submit a Form I-129 (Petition for a Non-Immigrant Worker) along with the $325 application fee and the following supporting documentation:
1. Written consultation from an appropriate labor organization regarding the nature of the work to be done. If no appropriate labor organization exists, then this requirement is excused;
2. Itinerary with the dates and locations of the performances;
3. A copy of the contract between the petitioner and the beneficiary or summary of terms of the oral agreement under which the beneficiary will be employed;
4. Evidence that the group has been established and performing regularly for at least one year;
5. Statement from the petitioner listing each member of the group and the exact dates for which each member has been employed on a regular basis by the group; and
6. Evidence that the group is internationally recognized as outstanding in the discipline for a substantial period of time as demonstrated by evidence of the group’s receipt of, or nomination for, significant international awards or prizes for outstanding achievement in the field, or evidence of at least three of the following:
o The group has performed and will perform as a starring or leading entertainment group in production or events which have a distinguished reputation as evidenced by critical reviews, advertisements, publicity releases, publications, contracts or endorsements;
o The group has achieved international recognition and acclaim for outstanding achievement in its field as evidenced by reviews in major newspapers, trade journals, magazines or other published materials;
o The group has performed and will perform services as a leading or starring group for organizations and establishments that have a distinguished reputation as evidenced by articles in newspapers, trade journals, publications or testimonials;
o The group has a record of major commercial or critically acclaimed successes, as evidenced by indicators such as ratings, box office receipts, record, cassette or video sales, and other achievements as reported in trade journals, major newspapers or other publications;
o The group has received significant recognition for achievements from critics, organizations, government agencies or other recognized experts in the field; and/or
o The group has commanded and will command a high salary or other substantial remuneration for services comparable to others similarly situated in the field, as evidenced by contracts or other reliable evidence
Once the USCIS has approved the I-129 petition, the alien may apply at a U.S. embassy or consulate for their P-1B visa, which they will present at a port of entry to request admission into the United States.