The Immigration and Nationality Act provides for a nonimmigrant visa for a person who wishes to work temporarily in the United States. The H-1B classification applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education. This classification requires a labor attestation issued by the Secretary of Labor. There is an annual numerical limitation on the number of visas that are allowed, which in the case of H-1B visas, the numerical limitation is 65,000 visas per year. However, if the candidate for the H-1B visa has a Master's Degree issued by a U.S. educational institution, then there are an additional 20,000 visas available for such persons.
Holders of an H-1B visa may reside in the U.S. for a total of six years, at which time they are required to return to their country of origin or previous residence. Usually, H-1B visa holders are granted a three-year period of stay, at the expiration of which they need to apply for an additional three years. However, the time period that an H-1B visa holder spends outside of the U.S. is not counted toward the total of six years and can be recaptured.
Transferred employee visas are for those foreign nationals coming to the United States as intracompany transferees and who within the three years prior to their entry have been employed abroad continuously by an affiliate or subsidiary of the multinational employer for at least one year. In addition, they must have been employed in a managerial, executive or specialized knowledge capacity. The L visa is usually granted for three years, with a total of seven years.
If the U.S. employer has been in business for less than one year, additional requirements will apply. First, the U.S. employer must show the development and expected growth of the U.S. employer through the presentation of a detailed Business Plan. Second, the U.S. employer must demonstrate that a sufficient amount of capital has been invested in the enterprise to make it viable. Third, the applicant will only be granted a visa for only one year and must show at the end of that one year period that the U.S. employer has significant U.S. operations; otherwise, the visa will be canceled.
The foreign employer may also purchase a business in order to establish an affiliate or subsidiary. For example, the purchase of a $300,000 business would qualify even if the foreign employer only initially invested $50,000 for the purchase of the business, with an obligation to pay the balance of the purchase price in the form of a promissory note.
Holders of an L-1A visa may reside in the U.S. for a total of seven years, at which time they are required to return to their country of origin or previous residence. For newly formed U.S. companies, the L-1A visa will be granted for one year, at which time the company will need to apply for an extension of the visa and must show that the company has developed, employs 5 to 10 employees and is operational.
The Immigration and Nationality Act provides a nonimmigrant visa for the nationals of a country with which the United States maintains a treaty of commerce and navigation who is coming to the country to carry on substantial trade between the United States and the treaty country, or to develop and direct the operations of an enterprise in which the foreign national has invested, or is in the process of investing a substantial amount of capital. As of July 1, 2009, the treaty countries are Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh, Belgium, Bolivia, Bosnia and Herzegovina, Brunei, Bulgaria, Cameroon, Canada, Chile, China (Taiwan), Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Greece, Grenada, Honduras, Iran, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Korea (South), Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldavia, Morocco, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Poland, Romania, Senegal, Singapore, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad & Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Yugoslavia.
The requirements for the treaty trader visa are that (a) the applicant must be a national of a treaty country, (b) the trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country, (c) the international trade must be "substantial" in the sense that there is a sizable and continuing volume of trade. Typically, ongoing trade of $500,000 per year is considered to be substantial, (d) the trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant's nationality, (e) trade means the international exchange of goods, services, and technology (title of and to the trade items must pass from one party to the other), and (f) the applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm (ordinary skilled or unskilled workers do not qualify).
The requirements for the treaty investor visa are that (a) the investor, either a real or corporate person, must be a national of a treaty country, (b) the investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise (the percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise -typically, investments of between $150,000 and $200,000 will qualify for a startup business), (c) the investment must be a real operating enterprise (speculative, idle or passive investments do not qualify and uncommitted funds in a bank account or similar security are not considered an investment), (d) the investment may not be marginal (it must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States - this usually means that the investor must have other individuals employed in the enterprise), (e) the investor must have control of the funds, and the investment must be at risk in the commercial sense (loans secured with the assets of the investment enterprise are not allowed, unless the investor provides a personal guarantee with other assets), and (f) the investor must be coming to the U.S. to develop and direct the enterprise (if the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity -ordinary skilled and unskilled workers do not qualify).
The treaty investor may also purchase a business without having to immediately invest the entire amount indicated. For example, the purchase of a $300,000 business would qualify even if the investor initially only invested $50,000, but also has an obligation to pay the balance of the purchase price in the form of a promissory note that was personally guaranteed with other assets and/or income.
Key employees of E-1 and E-2 visa holders may also receive an E-1 or E-2 nonimmigrant visa without the necessity of meeting the investment amounts. In fact, the principal investor need not to be in E status and must only show that he would be potentially "classifiable" as a treaty trader or treaty investor. The company must show, however, that the employee is a key employee that will occupy an executive position with the company and be part of the management team of the company.
Holders of E visas may reside in the United States as long as they continue to maintain their status with the enterprise. Normally, visas are given with five-year terms, which can be extended indefinitely, and two-year entry approvals. A change of status applicant is given a two year period of stay. O-1 Extraordinary Ability Visa The O-1 classification applies to persons with extraordinary ability in the sciences, arts, education, business or athletics, or extraordinary achievements in the motion picture and television field. It is for the small percentage who have risen to the top of their field. The applicant must demonstrate the achievement of regulatory criteria, including having received nationally or internationally recognized prizes or awards for excellence; performed a critical role for an organization with a distinguished reputation; made original contributions of major significance; and commanded a high salary or other remuneration in relation to others in the field. The O-1 visa requires a no-objection letter from a union, such as the Screen Actors Guild, or management group.
The O-1 visa applicant must show through extensive documentation that he/she has extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field and must be coming to the U.S. to work in his or her field. For Aliens in the sciences, education, business, and athletics, the alien must show that he/she is in the top of his or her respective field. 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/herself as a qualifying alien through at least three of the following types of evidence:
1- Documentation of receipt of lesser nationally (not necessarily U.S.) or internationally recognized prizes or awards for excellence in the field of endeavor;
2- Documentation of membership in associations in the field of endeavor which require outstanding achievements of their members;
3- 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;
4- Evidence of participation as a judge (individually or as a part of a panel) of the work of others in the alien's field;
5- Evidence of scientific, scholarly, or business related contributions of major significance in the field of endeavor;
6- Evidence of authorship of scholarly articles in the field, in professional journals or other major media;
7- Evidence of performance in a critical or essential capacity for organizations or establishments with distinguished reputations;
8- Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others;
9- Other comparable evidence.
For aliens in the arts, motion pictures, or television, the alien must show that he/she has acquired "distinction" in his/her 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 are 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. In absence of such an award one can establish himself as a qualifying alien through at least three of the following types of evidence:
1- 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;
2- 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;
3- Evidence of performance in a lead, starring or critical role for organizations or establishments with distinguished reputations;
4- 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;
5- Evidence of significant recognition for achievements from organizations, government agencies, or other recognized experts in the field;
6- Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others;
7- Other comparable evidence.
There is no set maximum period for O-1 status. Theoretically, it can be indefinite. However, the length of the status is determined by the length of time needed for the alien to perform his/her duties or activities with the petitioner employer. An initial stay is limited to no more than three years, provided the petition can establish that the O-1 alien will need this much time for the proposed employment. This period may be extended at one-year increments thereafter, upon evidence showing that the alien's continued presence would be required.