Business and Employment Immigration

Transcription

1 Law Offices Of David J. Hart, P.A. Business and Employment Immigration David J. Hart, P.A. 21 Southeast First Avenue 10 th Floor Miami, Florida 33131

2 Table of Contents I. About The Firm.. 3 II. III. IV. Non Immigrant Visa Summaries....4 E-1 / E-2 Visas..5 NAFTA Treaty National (TN) For Professionals V. H-1B Specialty Occupation.. 14 VI. L-1 Intra-Company Transfer 16 VII. O-1 Extraordinary Ability VIII. Immigrant Visas IX. Perm Labor Certification / I X. EB-1 Extraordinary Ability / XI. EB-1 Visa for Multinational Executives and Managers..28 XII. EB5 Investor Visa

3 About The Firm David J. Hart, P.A., Immigration Attorneys is a law firm located in Miami, Florida that concentrates its practice on matters of United States immigration and nationality law, with a specific emphasis on business, professional and investment cases for foreign national companies and individuals all over the United States and abroad. We represent businesses in all areas of immigration, including temporary and permanent residence based on employment or family relationships, consular processing, naturalization, re- entry permits, Department of Labor audits and I- 9 employer sanctions. Our firm is skilled in the preparation of all immigration petitions and applications and has developed checklists and procedures for streamlining the process for both the employer and the foreign national. With the passage of the Immigration Act of 1990, which took effect in the latter part of 1991, the U.S. immigration system was restructured to reflect a national recognition that skilled personnel, investors, and business owners were to be given preference over others. This legislation effectively created categories that permitted relatively rapid processing of temporary and permanent visas for qualifying persons or organizations. Our specialization reflects this regulatory recognition. However, more recently, we increasingly provide guidance and support to foreign nationals and businesses now facing the difficulties of a less welcoming immigration environment. David J. Hart, P.A. is committed to its active membership in the premier professional association, the American Immigration Lawyers Association ( AILA ) on a national level, as well as participation in local AILA events in South Florida. We pursue continuous staff training and participate in teleconferences and annual conferences to ensure that we provide our clients with authoritative and cutting edge assistance in handling all their immigration needs. In order to accommodate our clientele, our firm designates one attorney as the contact for each client to ensure a close working relationship and avoid inefficiencies and delays. The attorney designated as the contact analyzes the type of case, expiration and other important dates, deadlines and immigration strategies for each case. The attorney works closely with the client, whether an individual or company, to allow a smooth transition to the firm for those who have cases pending with a government agency. If appropriate, the attorney will travel to the company s headquarters, or any field offices, and meet with company representatives to review cases, public access files and, if necessary, any I- 9 files to ensure compliance. The company has complete access to the attorney at all times by telephone, in person, and especially by . Our website has received a tremendous response. We receive hundreds of visitors to the site and the volume of inquiries has grown tremendously as a result of our daily immigration posting. Our website contains news updates, legislative updates, advisories, summaries on specific immigrant and nonimmigrant visa processes, as well as links to useful government sites. All our articles and other postings are written in easy- to- understand English. Our objective is to provide information and a better insight into U.S. immigration laws and procedures. Should you have specific questions about your case, please contact our office for an individual consultation with one of our attorneys specializing in immigration and naturalization law. We speak Spanish, French and Portuguese. 3

4 Non-Immigrant Visa Summaries 1- L- 1 Multi- National Transfer- This category is useful for the transfer of managers, executives or specialized knowledge employees who have been employed with an affiliate, parent, or subsidiary abroad for a minimum of twelve months within a 36- month period preceding the filing of the CIS petition. 2- H- 1B Specialty Occupation- This category is reserved for the professional level employee. In determining if a prospective employee will qualify for an H- 1B, it is essential to establish the minimum requirements for entry into the position, which must be closely related to the foreign worker s university credentials. If the applicant has university training abroad, his/her degree must be evaluated for equivalency to the US university system. In some cases, a non- degreed person will qualify if he/she can demonstrate with credible evidence that he/she has achieved at least 12 years of relevant work experience. (3 years of work for each year of the 4 years of university education, known as the 3- to- 1 rule). This must be supported with detailed letters from previous and current employers, and a resume. Other helpful evidence includes training certificates, and any proof of post high school education (transcripts, diplomas, etc.). The H- 1B category has an annual limit that is usually oversubscribed early on in the US fiscal year; therefore it is essential to file the petition as early as possible once the position and prospective employee have been identified. 3- O- 1 Extraordinary Ability- This category is reserved for that unique person(s) who has established a record of sustained accomplishment that can be demonstrated through extensive documentation. Such evidence includes the receipt of a national or international award, membership in a society or organization that requires excellence as a criteria for induction, copies of publication by or about the applicant, evidence that applicant has been the judge of others work, and any other probative evidence. The accomplishment must be nationally or internationally recognized. 4- E- 1/E- 2- Visa classification available only to those persons who are citizens of a country that has a treaty or a bilateral investment agreement with the United States. There are two types of E visa classification: The E- 1 is for those enterprises that engage in international trade that is considered substantial. A minimum of 50% of the international trade must be between the US and the treaty country. Trade must be continuous and must demonstrate volume of trade. If this can be demonstrated, then even a new employee can be employed in the United States, so long as the position offered is a key position at the management level. The E- 2 is for treaty investors who will invest a substantial amount into a new or existing enterprise. Although the regulations do not indicate a minimum investment amount, a minimum investment of US$125, will likely be approved. 4

5 E-1 and E-2 Visa A. THE E- 1 TREATY TRADER VISA The non- immigrant visa category known as the E- 1 for Treaty Traders is designed for firms or individuals who develop substantial trade between the United States and a country with which the United States maintains a treaty of commerce and navigation and which is the country of birth/citizenship of the foreign national. In order to qualify for a treaty trader visa, the US office of the company must engage in substantial international trade, a majority (at least 51%) of which must be between the United States and the country of the applicant's nationality. The trade must involve the actual exchange of goods, monies, or services and is generally demonstrated to exist by offering evidence of the number as well as the value of the transactions. The E- 1 visa is generally available to managers, executives, or individuals with specific skills that can be demonstrated as unique (vis- a- vis the trade conducted) and that are not generally available in the United States. The aspect of essentiality to the US operation is a necessary component of the E- 1 visa application, and therefore will eliminate the availability of the category for the unskilled worker, clerical employee, or middle- or lower- level manager. Trade in goods includes both imports and exports between the US and the treaty country. Trade in services includes international banking, insurance, transportation, tourism, communications, data processing, advertising, accounting, design and engineering, and management consulting. It is also possible to show trade based on a legally binding contract that calls for trade is merchandise or services. Some examples: 1. A US company has been established or is actively in the process of being set up, and at least 50% of the stock ownership in the hands of a treaty country entity or individual. This U.S. company is currently engaged in international trade (or has committed irrevocably to this trade). Of the total trade, it must be demonstrated that a minimum of 51% of the total trade is directed to and from the treaty country. 2. A U.S. Company has been established or is actively in the process of being set up, and at least 50% of the stock ownership in the hands of a treaty country entity or individual. The US operation is engaged in providing services to a substantial number of US clients related to certain treaty country manufactured software. At least 51% of this software is manufactured in the treaty country. 3. A treaty country bank establishes a wholly owned subsidiary in the United States. This subsidiary engages in substantial transactions, of which at least 51% are with US citizens or entities. Based on these transactions, a qualifying employee would qualify for E- 1 status. 4. A treaty country entity enters into a binding agreement to provide consulting services to its US majority- owned subsidiary. The calculated value of these services is demonstrated 5

6 as the main revenue of the US subsidiary, and the certainty of the agreement is not in doubt. It is likely that E- 1 status will be granted. B. THE E- 2 TREATY INVESTOR VISA An E- 2 visa (treaty investor visa) is a temporary (nonimmigrant) nonresident visa that enables the holder to live and operate a commercially viable operation, created by an investment, or purchased in the United States. To qualify for an E- 2 visa, a person must make an investment in a new or ongoing business in the United States and must: 1. be a national of a country with which the United States has a Treaty of Commerce and Navigation; 2. be a national of the same country as at least 50% of the owners of the investment enterprise; and 3. make an irrevocable commitment of his/her own funds or funds "for which he/she is personally at risk" to the enterprise; 4. through the investment, create job opportunities for U.S. workers; and 5. fill a "key role" within the company, which is at the executive or management level. NOTE: In some cases, an E- 2 can also be obtained for an executive who is a national of the country, but who is not an investor in the enterprise, see details below. An E- 2 visa is "temporary" because it must be renewed periodically; that is, a person must continue to meet the requirements for an E- 2 visa in order to remain in the United States in that status. It is "nonresident" because it does not grant a permanent right to live and work in the United States in the same way that permanent residency status does. It is a temporary visa that can be extended almost indefinitely. How does an E- 2 visa differ from other non- immigrant visas, such as B, L and H? An E- 2 visa is unique in several respects. Unlike a B, or business/vacation visitor visa, the E- 2 enables a foreign- born person to engage in activity for pay in the United States. The E- 2 visa differs from both the H and L visas because there is no requirement that there be a job offer from a United States employer. An L visa requires that the U.S. job offer be made by a company affiliated with the applicant s foreign employer, thereby requiring a multi- national structure. Because a job offer is not required as part of an E- 2 application, there is no need to undertake the lengthy recruitment process or to be concerned with the relationships between U.S. and foreign entities. An E visa has another advantage over the H and L visas: it need not be renewed as frequently and there is no limit on the number of times it may be renewed, so long as the entity continues to operate and do business. Which countries have the necessary Treaty of Commerce and Navigation with the United States? Countries that qualify for both E- 1 & E- 2: Argentina, Australia, Austria, Belgium, Bolivia, Bosnia- Herzegovina, Canada, China (Taiwan), Colombia, Costa Rica, Croatia, Denmark, Estonia, Ethiopia, Finland, France, Georgia, Germany (FRG), Honduras, Iran, Ireland, Italy, Jamaica, 6

7 Japan, Korea, Liberia, Luxembourg, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Turkey, U.K., Yugoslavia. Countries that qualify for E- 1 only: Bolivia, Brunei, Denmark, Greece, Israel, Latvia. Countries that qualify for E- 2 only: Albania, Armenia, Azerbaijan, Bahrain, Bangladesh, Bulgaria, Cameroon, Congo (Brazzaville and Kinshasa), Republic of Congo, Czech Republic, Ecuador, Egypt, Grenada, Kazakhstan, Kyrgyzstan, Moldova, Mongolia, Morocco, Panama, Poland, Romania, Senegal, Slovak Republic, Trinidad & Tobago, Tunisia, Ukraine. How is application made for an E- 2 visa? A person who is not already present in the United States in another nonimmigrant visa category may apply for E- 2 status at the United States Consulate in his/her home country. The application process varies somewhat from consulate to consulate, but, in general, most require submission of a nonimmigrant visa application, a special E visa questionnaire, the applicant s passport and additional passport- type photographs, a letter from an authorized person at the investment enterprise, a processing fee (again, dependent on the country involved) and documents supporting the qualifications of the investment enterprise and the applicant. The supporting documents must include evidence of company ownership, documentation of the value of the company, evidence of the existence of an ongoing business, and similar items. A business plan is extremely useful. Applicants for E- 2 visas are informed at the time they apply of the requirements of the particular consulate. Once the application package is completed, it is submitted by mail or, in some cases, in person to the United States Consulate. How long does it take to obtain an E visa? Again, the answer depends upon the location of the United States Consulate where the applicant applies. In some countries, such as the United Kingdom, where the demand for E visas is high, the process may take six weeks or longer. In other countries, including Korea, the demand is less; therefore, the application- processing period is only about two weeks. It should be noted that the processing time is directly affected by the completeness of the application submitted. If an applicant fails to submit all the documentation required, the application will be returned for supplementation; if the deficiency is substantial, the application may simply be denied. Once an E- 2 visa application has been approved, the applicant is notified. Some consulates will simply enter the visa in the applicant's passport and return it by mail or courier service. Most consulates now require a personal interview prior to visa issuance. Is the E- 2 visa an unlimited guarantee of right to entry to the United States? No. Once the visa has been affixed in the visa holder's passport, the E- 2 visa holder may travel to the United States. However, the E- 2 visa holder should be aware that he/she will be inspected by an Immigration Officer at the port of entry into the United States. The Immigration Officer may ask questions of the E- 2 visa holder, as they can of any non- U.S. citizen attempting entry. If the Immigration Officer is not satisfied that the E- 2 visa holder's intentions are compatible with the purpose of the E- 2 visa, eg. that the E- 2 visa holder really intends to immigrate permanently to the United States, he may deny entry and require the E- 2 visa holder to depart. Such instances are not common, but they do occur in extreme cases. The E- 2 visa holder should be aware that the mere issuance of an E- 2 visa does not in itself guarantee a right to enter the United States, though in practice most E- 2 visa holders have no difficulty in making 7

8 a routine entry. The E- 2 visa should be used only as long as the E- 2 investment remains operational and within the control of the E- 2 visa holder. How many times may an E- 2 visa holder use his visa to enter the United States? There are currently no restrictions on the number of times a person may enter and exit the country with a valid E- 2 visa, subject, of course, to the possibility of denial of entry by an Immigration Officer discussed above and the validity period of the visa stamp itself. What is the duration of validity of an E- 2 visa? An E- 2 visa can, in many cases, be renewed indefinitely. The initial E- 2 visa issued to a qualified applicant can be valid for one year or two years. Near the end of this initial E- 2 period, the E- 2 visa holder will be required to re- submit information about himself/herself and his/her investment enterprise to demonstrate that the enterprise still meets the requirements of the E- 2 program. If this information is approved, the visa will be reissued for four or five years, with a need to renew it in the future only that often. If the initial investment in a business is substantially above the threshold investment amount, and into a business that demonstrates significant activity at the time of the application, the initial period of E- 2 validity will be five (5) years. Still, the decision is left to the US Consular officer and depends on visa reciprocity, and consular practices. Is there a minimum dollar amount a person must invest in order to qualify for an E- 2 visa? No. The CIS and State Department recognize that in the case of some service businesses, the chief investments made by a foreign- born person are skill and knowledge. Instead of imposing a minimum- amount test, the United States applies one of two other tests in determining whether an investment will qualify: 1. Is the investment proportional to the total value of the particular enterprise in question?; or 2. Is the investment in an amount normally considered necessary to establish a viable enterprise of the type contemplated? Ordinarily, the first test will be applied when the investment is made in an existing business; and the second test will be applied when the investment is used to start a new business. In general, however, the United States is more likely to approve smaller investment amounts when those amounts make up a higher percentage of the overall value of the business. For example, for an investment under $100,000 the United States will expect that amount to constitute 75% or more of the total value of the business, i.e., that the investor is placing that amount and owns upwards of 75% of the total equity of the entity. What is meant by the requirement of an irrevocable commitment of funds? The law requires that issuance of an E- 2 visa be based upon a good faith investment of capital in the U.S economy. Obviously, the intent of the law would not be met if the applicants' were simply issued E- 2 visas on the basis of a promise to invest money, or if funds were placed on deposit and then withdrawn. Therefore, the consular officer reviewing the application must see valid evidence that the applicant has already invested funds in a U.S. business, or has commenced the investment process (which includes making the necessary purchases to start operations (such as equipment, lease, hiring of employees, training expenses). 8

9 How can an applicant be expected to invest money in a U.S. enterprise without knowing first whether an E- 2 visa will be available to him as a result of the investment? The authors of the immigration laws realized that qualified foreign- born investors would not be interested in investing if the issuance of an E- 2 visa remained in doubt until after the funds had already been expended in the new business. The law permits the use of mechanisms such as escrow accounts to protect the investor in the even the E- 2 visa is not issued. An applicant who plans to purchase a U.S business and seek an E- 2 visa may place the purchase monies in escrow in a U.S. institution and make the issuance of an E- 2 visa a contingency of the sale. If the visa is denied, the sale contract would be void and the monies returnable to the applicant. It is also possible to defer a portion of the total investment until after the E- 2 has been issued. This is restricted to those instances where the investor will proceed with the investment process prior to visa issuance. Must an applicant have the investment in cash in order to make a qualifying investment? No. While the simplest case for an E- 2 visa involves investment by the applicant of his/her own personal monies in a U.S business, it is not necessary to have the funds in cash to qualify. Nevertheless, the investor must be at least "personally at risk" for the funds he is investing. This means that he investor may obtain funding through loans secured by his own assets or his own signature. He is also considered "personally at risk" for equipment and property purchased with personal funds and contributed to the business. I should be noted that a loan secured by the assets of the enterprise is not considered to involve personal risk. A gift of funds to the investor will suffice as well to qualify for the investment amount. Is there any restriction on the type of business that may constitute the investment enterprise? No. The business may be a corporation, partnership or sole proprietorship and may engage in trade or provide a service. An investment that is passive or speculative in nature and is made merely for possible appreciation in value does not qualify. The business must have actual commercial activities that generate income for the entity. Can the purchase of an existing business qualify as the necessary investment in an enterprise? Yes. It is not necessary that an E- 2 applicant begin a new U.S business in order to qualify for the visa. The purchase of an existing business should be documented sufficiently to indicate that the investor is the shareholder, or that he has ultimate equity (perhaps through another company). Is it possible for two or more individuals to purchase or invest in a U.S enterprise together and each receive an E- 2 visa? Yes, so long as each investor qualifies as an E- 2 investor (sufficiency of investment amount, source, etc.). Also, a non- investor, who is a national of the country of the shareholder of the company, may be able to qualify for E- 2 status as a supervisor or manager if it can be demonstrated that the entity requires the specific services of such a person, and that person has the relevant credentials. Are the family members of an E- 2 visa holder entitled to visas also? Yes. The spouse and minor children of an E- 2 visa holder are also issued E- 2 visas and may 9

10 travel to and reside in the United States with the primary visa holder. They enjoy the same rights in the United States as the primary E- 2 visa holder, and E- 2 spouse can be employed in the US. The E2 spouse can apply for employment authorization. Is an E- 2 visa holder entitled to receive a Social Security number? The primary E- 2 visa holder and the spouse, who is entitled to be employed in the United States in his investment enterprise, may apply for and receive a Social Security number from the Social Security Administration. Because the spouse and minor children of an E- 2 visa holder are not authorized for employment in the United States, they are not entitled to receive Social Security numbers. However, while the Social Security number is used in many aspects of American life as an identification number, its only official purpose is the designation of a pension account to which the holder is entitled following his retirement from employment. For tax declaration purposes, the Social Security Administration will issue a "tax identification number" for all derivative beneficiaries (unless spouse is employed, in which case s/he will have own SSN), who will then be properly included in the personal income tax return of the principal applicant. Is an E- 2 visa holder required to pay tax in the United States? Not on his worldwide income, unless the E- 2 visa holder is physically present in the United States for more than approximately 183 days per year. Of course, all non- resident aliens must pay tax on their "U.S. source income", wherever they live, when they receive such income. If the E- 2 visa holder is deemed to be a resident in a given tax year (because he was present in the United States for longer than 183 days in that year), he will not be a U.S. taxpayer for prior or subsequent years unless he meets the "substantial presence" test for those years as well. The taxation situation is completely different for holders of "green cards", who are treated as U.S. taxpayers during all years in which they hold active permanent resident status, regardless of how long they are physically present in the United States. Is an E- 2 visa holder entitled to free medical care in the United States? No, but most American citizens are not so entitled either. There is no all- inclusive system of free medical care in the United States. United States citizens, permanent residents and nonimmigrants are all required to pay their own medical costs. Many U.S. citizens purchase health insurance, either privately or through an employer, or cover he costs of medical care. Free or reduced- price medical care, paid for by the government, is generally available to only two groups: persons over the age of 65 and indigents. Are the minor children of E- 2 visa holders entitled to attend school in the United States? Yes. A child who derives his/her E- 2 status from a parent who is the primary E- 2 visa holder and who meets the residency requirements of a particular school district may attend public school there without cost. While some state legislatures have seemed inclined to limit the right of free education to U.S. citizen children only, due in part to the financial burden placed on some school districts by undocumented immigrants, thus far no states have imposed binding limitations on the rights of legal nonimmigrant children to free public education. Still, one who asks about tuition or student visa issuance will be given the relevant information on reimbursing the county. It is currently unclear for any future application (for example for permanent residency) if this would materially impact such an application. May an E- 2 visa holder become a permanent resident of the United States? 10

11 Yes. As mentioned above, an E- 2 visa holder is a temporary resident who in essence has expressed to the United States government that s/he does not intend to immigrate to the United States. It is perfectly acceptable, nonetheless, for an E- 2 visa holder to determine, after living in the United States for a time, that s/he would like to reside here permanently. In this case, the E- 2 visa holder must apprise the CIS of her/his intention to live permanently in the United States. There are several immigrant categories, based either on employment or on family relationships, available to qualifying persons; and if the E- 2 visa holder meets the requirements of one of these categories, s/he may apply to the CIS to adjust status from that of nonimmigrant to immigrant. In many cases, this adjustment may be done without need for the E- 2 visa holder to leave the United States. In some cases, however, the E- 2 visa holder may be required to depart the United States for a time and to make application for permanent resident status through the United States consulate in his/her home country. The process required for moving from E- 2 status to permanent residence will vary from applicant to applicant depending on nationality, employment status, business activities abroad, education, and family relationships. It should be noted that the CIS has for the past several years conducted a lottery for permanent residence in addition to the standard methods of application noted above. Persons from qualifying countries may enter this lottery once each year and may be selected to receive a green card on an expedited basis. The analysis of qualification for residency is analyzed on a case- by- case basis. 11

12 NAFTA Treaty National (TN) For Professionals Trade NAFTA or TN visas were created by the North American Free Trade Agreement between the U.S., Canada & Mexico ( NAFTA ). NAFTA created special economic and trade relationships for the United States, Canada and Mexico. Canadian citizens qualify for a Trade NAFTA work visa (hereinafter TN Visa) under both the NAFTA Accord and U.S. Title 8 of the Code of Federal Regulations Besides proof of citizenship, an offer of employment, the required forms and fees, the individual must provide proof of filing under one of the categories delineated in Appendix 1603.D.1 of the NAFTA. This includes proof/documentation that the individual meets the educational qualifications or alternative credentials in order to work in the activity listed in Appendix 1603.D.1. This work visa category is temporary (up to 3 years), unlimited in its extensions (as long as the NAFTA Accord remains unchanged), and requires the individual intend to return to his native country (i.e., non immigrant intent is required in this work visa category). Canadians are issued TN- 1 visas. TN extensions are granted for a one- year period over an indefinite time as long as the Canadian citizen has the intent to one day return to his home country. TN visas are not dual intent visas and do not lead to legal permanent residency. *Permanent residents of Canada do not qualify to work as a NAFTA professional. Only citizens qualify. To qualify, professionals of Canada must meet the following conditions: Applicant is a citizen of Canada; Profession is on the NAFTA list; Position in the U.S. requires a NAFTA professional; Canadian applicant is to work in a prearranged full- time or part- time job, for a U.S. employer (see documentation required). Self employment is not permitted; Professional Canadian has the qualifications of the profession Where to Apply: All Applicants are required to apply in person the first time they apply for a TN visa for a specific Petitioner. Canadians must apply at the Port of Entry (land border or airport pre- clearance). After issuance of the first TN visa for that Petitioner, subsequent renewals/extensions may be filed in person (as mentioned above) or may be submitted to the US CIS Nebraska Service Center. Those Canadian citizens wishing to remain in the U.S. in TN status should file a form I- 129 requesting a renewal in order to avoid petitioning at the Port of Entry. In addition, the regulations require that degrees, diplomas, or certificates received by the TN Applicant from an educational/academic institution outside of the U.S., Canada, or Mexico, be accompanied by an evaluation (and translation if required) by a reliable evaluation service that specializes in such evaluations. 12

13 Most Scrutinized Category: Management Consultant Under NAFTA Appendix 1603.D.1, A Management Consultant must meet the following minimum educational requirements and alternative credentials: Baccalaureate or Licenciatura Degree; or equivalent professional experience as established by statement or professional credential attesting to five years experience as management consultant, or five years experience in a field of specialty relating to the consulting agreement. The Immigration Officer Academy Instructor s Handbook states that according to the Department of Labor 55% of these Management Consultants are self- employed, and may also be referred to as Management Analysts. They are to propose ways to improve a company s structure, efficiency, or profits; and, collect, review, and analyze information in order to make recommendations to management. Most of the TN Visas granted under this category are to individuals with at least five years of experience in management, marketing, human resources, inventory control or other such specialties. Perhaps the most important element in these Management Consultant petitions is that of the temporariness of the position. They are not to be put on payroll of the company as personnel, but are to be granted a consulting contract and paid as per the contract for professional services. These contracts are to outline the scope, time frame, cost and responsibilities of each party. The Free Trade Officers will ask to see the consulting contract (or independent contract for services) as part of the required documentation. The Instructors Manual, Legacy INS Field Memos, US CIS Field Memos and Free Trade Officers themselves, have all acknowledged that this section of the requirements requires further clarification and cases are approved on a case- by- case basis. 13

14 H-1B Specialty Occupation Visa Foreign professionals sponsored by United States employers may work temporarily in the United States in a specialty occupation. A specialty occupation is an occupation that requires theoretical and practical application of a body of highly specialized knowledge and the attainment of the US equivalent of a Bachelor or higher degree in the specific specialty as a minimum for entry into the occupation in the United States. A few examples of professions that qualify as specialty occupations are professors, engineers, architects, teachers, computer analysts and accountants. An H- 1B applicant must demonstrate completion of a Bachelor degree in the specialty, or experience in the specialty equivalent to the completion of such a degree to be eligible for the H- 1B classification. It is also possible that a person who has not attained the requisite university level degree will nevertheless qualify for such a visa if it can be demonstrated that the equivalent of a university degree has been attained through a combination of work experience, training, and/or studies. For example, a person with significant experience and training in engineering construction, and who can demonstrate this through credible evidence (such as letters of employment, certificates, etc.), will perhaps be given an evaluation that the accumulation of such experience is equivalent to the attainment of a university degree in civil engineering. The USCIS utilizes a formula that requires the showing of three years of relevant experience for every year of required university study (3- to- 1 rule). This generally requires twelve years of work experience to reach equivalency to a university degree. An employer seeking approval of the H- 1B petition must e- file a Labor Condition Application ("LCA"), also known as "attestation" with the Department of Labor. The employer must attest, among other things, that it has notified the appropriate bargaining representative of its employees of the petition or posted notice of the filing in conspicuous locations at the place of employment. The employer must also attest that the job is being offered at the prevailing wage or actual wage paid to similar individuals (whichever is greater), and that it will provide working conditions for the alien that will not adversely affect the working conditions of similarly employed workers. The determination of the prevailing wage is crucial to the proper filing of the LCA. It forms the basis of the salary to be paid to the worker. Failure to pay the prevailing wage could result in disbarment from future visa petitions, or fine penalties and the order to pay back wages to the worker. Clearly, it is in the interest of the employer to remunerate the employee at the correct and declared salary. If the employee is dismissed prior to the expiration of the H- 1B period, the employer is responsible for offering return air transportation to the country of origin. H- 1B non- immigrants can be admitted for up to three years initially, extendable to a maximum authorized stay not exceeding six years. After six years in this classification the employee must spend one (1) year outside the United States before he or she may obtain another H- 1B visa. In some cases, transfer to another nonimmigrant visa category could delay or defer the ultimate exit from the country. Return to the U.S. as a tourist or temporary business visitor will not count towards the calculation of the required one year abroad. It is usual and customary to initiate residency procedures within the first three- year period since these procedures are 14

15 usually delayed and time- consuming. Initiating permanent residence procedures by the end of the fifth year in H- 1B status (by filing labor certification or I- 140) allows the foreign national to extend H- 1B status beyond the sixth year in one- year increments. An advantage of the H- 1B visa is that an individual may come to the United States as an H- 1B nonimmigrant and at the same time seek to become a permanent resident. In this regard, the Doctrine of Dual Intent has been codified and is also part of the CIS regulations. Also, the H- 1B employee spouse and unmarried children under the age of 21 are eligible for H- 4 status allowing them to live (but not work) in the United States. The children may attend school in the United States. Special care and attention should be given to the elder children nearing the age of twenty- one years since they will be forced to seek out their own visa status upon attaining that age. (See Child Status Protection Act) Note: Many consulates, including Mexico, are now issuing H1- B + other visas stamps for only one year, although I- 94 entry cards will be issued for longer. Note: Fashion models of distinction are also eligible for H- 1B nonimmigrant visa status and do not require university studies or a degree. The fashion model must demonstrate a level of excellence and distinction prior to the filing of the petition and must be petitioned for by an employer or an agent from the United States. The petition for a fashion model also requires the filing of the LCA, as well as evidence of past accomplishments in the field. Documents to be filed: I- 129, in duplicate I- 129H Supplement, in duplicate I- 129W, in duplicate Certified Labor Condition Application (signed by employer) Employer Support letter Copies of supporting documents, including Beneficiary s Bachelor s degree, equivalency report (if necessary), I- 94, etc. If small employer, file company information to show ability to pay prevailing wage. 15

16 L-1 Intra-Company Transfer Visa The L- 1 nonimmigrant visa category is one of the most advantageous tools available to international companies needing to bring foreign employees to the United States. One of the most important advantages of the L- 1 visa is that employees who are in a managerial or executive position are eligible for expedited processing of permanent residency under a similar category for immigrant visas. They are considered "priority workers" in the first preference of immigrant visas. The L- 1 visa for managers, executives, or specialized knowledge workers is suitable for multi- national organizations that require foreign manpower to fill key position in the United States. Small companies may use the category as easily as large companies. GENERAL REQUIREMENTS A foreign worker who within the preceding three years (calculated from the date of the filing of the L- 1 petition) has been employed outside the United States for at least 12 consecutive months by a qualifying organization, may be admitted temporarily to the United States to be employed by a parent, branch, affiliate, or subsidiary of that employer in a managerial or executive capacity, or in a position requiring specialized knowledge. Such a worker transferred to the United States under this nonimmigrant classification is referred to as an intra- company transferee and the organization that seeks the classification of an alien as an intra- company transferee is the petitioner, which is the US based entity within the multi- national organization. The indicator for managers and executives is L- 1A, while an L- 1B is for specialized knowledge workers. The U.S. Citizenship and Immigration Service (USCIS) is responsible for determining whether the person is eligible for admission and whether the petitioner is a qualifying organization. The following sets forth the standards applicable to this visa classification. Is the employee eligible for Intra- company transfer? A foreign worker who within three years preceding the time of petitioner s filing, has been employed outside of the United States for at least one year by a firm, corporation, or other legal entity or parent, branch, affiliate, or subsidiary; and who seeks to enter the United States temporarily in order to render his or her services to a branch of the same employer or a parent, affiliate, or subsidiary in a capacity that is managerial, executive, or involves specialized knowledge. Periods spent in the United States in lawful status for a branch of the same employer or a parent, affiliate, or subsidiary thereof and brief trips to the United States for business or pleasure shall not be interruptive of the one year of continuous employment abroad, but such periods shall not be counted toward fulfillment of that requirement. The USCIS has recently clarified that the overseas entity must directly employ the beneficiary as an employee. Therefore, an independent contractor who performed services for a foreign affiliate will not qualify, even if these services were controlled and regulated by the foreign company. 16

17 (A) Managerial capacity means responsibilities within an organization in which the employee predominantly: 1. Manages the organization, or a department, subdivision, function, or component of the organization; 2. Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization; 3. Has the authority to employ and dismiss or recommend those as well as other personnel actions (such as promotion and time off authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a higher- ranking level within the organizational hierarchy or with respect to the function managed; and 4. Exercises discretion over the day- to- day operations of the activity or function for which the employee has authority. A first- line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional. (B) Executive capacity means a position within an organization in which the employee primarily: 1. Directs the management of the organization or a major component or function of the organization; 2. Establishes the goals and policies of the organization, component, or function; 3. Exercises wide latitude in discretionary decision- making; and 4. Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization. (C) Specialized knowledge means special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures. Does the business entity qualify for Intra- company transfer? Qualifying organization means a United States or foreign firm, corporation, or other legal entity that meets exactly one of the qualifying relationships specified below and is or will be doing business as an employer in the United States and in at least one other country directly or through a parent, branch, affiliate or subsidiary for the duration of the alien's stay in the United States as an intra- company transferee: Parent means a firm, corporation, or other legal entity that has subsidiaries. A parent entity owns other entities. Branch means an operating division or office of the same organization housed in a different location. 17

18 Subsidiary means a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directly or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity. Affiliate means: 1. One of two subsidiaries both of which are owned and controlled by the same parent or individual, or 2. One of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each entity, or 3. In the case of a partnership that is organized in the United States to provide accounting services along with managerial and/or consulting services and that markets its accounting services under an internationally recognized name under an agreement with a worldwide coordinating organization that is owned and controlled by the member accounting firms, a partnership (or similar organization) that is organized outside the United States to provide accounting services shall be considered to be an affiliate of the United States partnership if it markets its accounting services under the same internationally recognized name under the agreement with the worldwide coordinating organization of which the United States partnership is also a member. Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad. DURATION OF STAY: The total period of stay permitted for a manager or executive is seven (7) years, while it is five (5) years for specialized knowledge employees. A foreign national may be admitted to the United States in L- 1 status for up to a maximum initial period of stay of three years. A special one (1) year initial period of stay applies when the intra- company transferee is coming to the United States to open a new office. New office means an organization, which has been doing business in the United States through a parent, branch, affiliate, or subsidiary for less than one year. Specific rules apply to the processing of the "new office" L- 1. For example, the petitioning entity must include evidence that is has secured initial space (even temporary space), has the necessary capital to organize and commence business operations, and can offer a concise summary of its business plans (it is a good idea to include a business plan that indicates projected employment and income through the first year). If the person to be transferred is also a shareholder of the petitioning (U.S.) entity, it will be necessary to document that the transfer is truly a temporary transfer and that at the culmination of the L- 1 stay the beneficiary will depart the United States. This is an absolute requirement for this sort of L- 1 despite the existence of the Doctrine of Dual Intent, which permits the filing of a residency petition or application, during or prior to the application or admission of the L- 1 visa holder. 18

19 Some Points about the L- 1 Visa Category: 1. To show employment abroad it is usually necessary to include evidence of compensation, but this is not an absolute requirement. For example, a non- salaried executive who demonstrates authority within the organization will qualify. The issue is authority over employees and business activities; 2. A contractual relationship between entities is generally insufficient to create the necessary link for the purpose of an L- 1 transfer. But a franchise agreement that grants significant control over policy and advertisement may be sufficient; 3. A person may be considered a manager even if there are few or no employees, as long as it can be shown that outside independent contractors or where the business is complex; 4. Off site work is permitted, but must show that the petitioner actually controls work product and all activities of its employees; 5. The entities within a multi- national organization do not have to be involved in the same kind of business. 19

20 O-1 Extraordinary Ability Classifications The O visa category is set aside for aliens of extraordinary ability in the sciences, arts, education, business, or athletics, and certain foreigners accompanying or assisting those aliens, and their family members. O- 1 CATEGORY: Under this nonimmigrant category, the alien may be classified as an alien who has extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry. O- 2 CATEGORY: An alien having a residence in a foreign country, which he or she has no intention of abandoning, may be classified as an accompanying alien who is coming to assist in the artistic or athletic performance of an alien admitted under O- 1 category. O- 3 CATEGORIY: Spouse and dependents: The spouse and unmarried minor children of the O- 1 or O- 2 alien beneficiary are entitled to O- 3 nonimmigrant classification, subject to the same period of admission and limitations as the alien beneficiary, if they are accompanying or following to join the alien beneficiary in the United States. Neither the spouse nor a child of the alien beneficiary may accept employment unless he or she has been granted employment authorization. The children can attend school. Description of Classifications. An O- 1 classification applies to: (1) A foreign national who has extraordinary ability in the sciences, arts, education, business, or athletics, which has been established by sustained national or international acclaim and who is coming temporarily to the United States to continue work in the area of extraordinary ability; or (2) An alien who has a demonstrated record of extraordinary success in motion picture and/or television productions and who is coming temporarily to the United States to continue work in the area of extraordinary achievement. An O- 2 classification applies to: an accompanying alien who is coming temporarily to the United States solely to assist in the artistic or athletic performance by an O- 1. An O- 2 accompanying alien provides essential support to an O- 1 artist or athlete. Such aliens may not accompany O- 1 20