Immigration Visa Attorney Blog

For Canadian professionals who qualify, the L visa combines the faster processing of the TN visa with the path to permanent residency provided by the H-1B. As with the TN visa, a Canadian professional can apply for an L visa at a U.S. port of entry. This makes the application process faster than applying for other nonimmigrant employment classifications, such as the H-1B, that must be processed through a USCIS Service Center. Moreover, Canadian professionals working in a managerial or executive capacity do not usually need a labor certification to begin the green card process, which can also significantly expedite the permanent resident process. These benefits make the L visa an attractive option for Canadian professionals, especially those seeking permanent residence in the United States.

The L visa is available for intracompany transferees in either specialized knowledge positions or executive or managerial positions. The intracompany transferee must have worked abroad with a parent, affiliate, subsidiary, or branch of the U.S. employer for one continuous year out of the preceding three years. Interestingly, time spent by the Canadian professional in the United States in lawful status for business or pleasure will not interrupt the continuity of employment abroad; however, such periods will not be counted towards the accrual of one year employment abroad. To qualify as a specialized knowledge individual, the Canadian professional must have special knowledge or expertise regarding their employer's product, service, research, equipment, techniques, management, processes or procedures. A specialized knowledge employee is eligible to hold L status for a maximum of 5 years.

Continue reading "Work Visa Options For Canadian Professionals: L Visas" »

Department of Homeland security is stepping up enforcement nationwide. We see stepped-up enforcement in Columbus, Ohio and throughout Michigan as in many parts of the US. By now, many have likely heard the news surrounding the February 10, 2010 federal grand jury indictment of Opas Sinprasong. The E visa holder and restaurant owner is charged with 10 counts of wire fraud, 40 counts of failure to pay employee federal payroll taxes, 5 counts of false swearing in an immigration matter and 4 counts of harboring illegal aliens. Last Wednesday, a $1 million bond was set for Opas Sinprasong. The specific allegations against Mr. Sinprasong include keeping the passports of his foreign national employees to ensure they would not leave the U.S., requiring his employees to work up to 32 hours of overtime per week without proper compensation, and requiring his foreign national employees to pay him illegal and exorbitant visa preparation fees. The highly publicized story of Opas Sinprasong's flagrant immigration and tax violations, unfortunately, draws attention to a small minority of individuals that abuse the system and overshadows the vast majority of law-abiding foreign nationals.

What many have likely not heard about is the behind-the-scenes story of how Mr. Sinprasong was brought to justice through the efforts of an anonymous employee, a Colorado University student and the Immigrant Legal Center. The anonymous employee worked at one of Mr. Sinprasong's restaurants and was brave enough to notify El Centro Humanitario (The Humanitarian Center for Day Laborers) in Denver when he noticed Mr. Sinprasong's foreign national employees were working around the clock. A Colorado University student, Diego Pena, who was volunteering at El Centro Humanitario encouraged the anonymous employee to share his concerns with the Immigrant Legal Center. The Immigrant Legal Center was then able to compile information and gather evidence for local law enforcement.

If not for the combined efforts of the individuals and organizations noted above, Mr. Sinprasong would still be mistreating his foreign national employees. Just as it is important to uncover and prosecute immigration violators, it is also vitally important to prevent vulnerable foreign nationals from being taken advantage of by foreign or U.S. employers. The anonymous employee who reported Mr. Sinprasong should be an inspiration to us all to be more cognizant of foreign nationals being exploited and to immediately report any such suspicions to the proper authorities.

The purpose of this blog is to give you a simplified overview of the E visa program. The E visa route is often overlooked when evaluating options of bringing adult family members with an ability to invest funds in the US. Since the E visa normally is not approved for those with pending family immigrant petitions, it may be advisable in some situations to consult with an attorney before rushing and filing certain family petitions with substantial backlog.

E visa comes in two varieties: the E-1 Treaty Trader and the E-2 Treaty Investor. To qualify for any type of E visa, the investor or trader must be a national of a country that maintains a treaty of Friendship, Commerce and Navigation or a Bilateral Investment Treaty with the United States. The U.S. Department of State keeps a list of the qualifying countries and two of the most notoriously backlogged countries, Mexico and the Philippines, are currently on the list. Though the E visa is not typically considered a path to permanent residence, E visa holders can apply for an indefinite number of visa renewals. Notably, despite the significant amounts of trade and investment between the United States and China, Chinese nationals are not eligible for an E visa. This is due to the fact that there is no formal treaty between the United States and China recognizing the trading and investment relationship.

The E-1 visa is available for foreign nationals of treaty countries whose intent in the United States is to carry on substantial trade between the United States and the treaty country. Moreover, the E-2 visa is available for foreign nationals of treaty countries whose intent in the United States is to develop and direct the operations of an enterprise, in which they have invested, or are in the process of investing, a substantial amount of capital. Both the amount of trade and investment must be "substantial," however; the definition of substantial does not provide clear guidance for E applicants. Specifically, the definition of substantial trade is "a sizable and continuing volume," whereas a substantial investment is one that is sufficient to ensure the successful operation of the enterprise.

As there is no statutory threshold for the amount of trade or investment that qualifies as substantial, it may be difficult to ascertain whether an applicant clearly qualifies without the help of an experienced immigration attorney. It is highly recommended that E applicants consult with an experienced immigration attorney regarding their application prior to submission. An experienced attorney should be able to advise on the likelihood of success and help develop the business concept in a fashion that meets E visa regulations and policies Regardless of the vague qualification standards, one advantage of the E visa is the fact that the U.S. Consulate or Embassy can usually process applications quickly and the applicant can receive a decision within weeks or months.

The EB-5 preference category was created to encourage foreign nationals to invest in either a new commercial enterprise in the U.S. or an already existing U.S. business that is struggling. Now, more than ever, the EB-5 preference category is especially beneficial to both the United States and foreign national investors alike. With the ever present and continually growing immigrant visa backlogs, the EB-5 preference category is one way to circumvent the uncertainty and delays associated with traditional employment-based immigration. Moreover, the U.S. economy, and particularly small business, desperately needs outside investment to help maintain and create jobs for U.S. workers.

The threshold investment to qualify for the EB-5 preference category is quite steep: at least $1,000,000 or, if investing in a "targeted employment area," at least $500,000. Although the $1,000,000 investment is likely out of reach for most foreign nationals, the $500,000 investment in a targeted employment area is more attainable. If a foreign national has the ability to make such an investment, they should not discount the EB-5 preference category as a viable option. A targeted employment area is defined by the United States Citizenship and Immigration Services (USCIS) as "a rural area or an area that has experienced high unemployment of at least 150 percent of the national average." Considering the national unemployment rate is currently averaging 10%, a targeted area of employment would be a rural area or an area with at least 15% unemployment.

Depending on whether the foreign national invests in a new enterprise or a troubled business will dictate whether they need to remain involved with the business. If the foreign investor does not want any commitment beyond making their investment, they should consider investing in an existing U.S. business that is struggling. A troubled U.S. business for EB-5 investment purposes is one which has been in existence for at least 2 years and has incurred a net loss of approximately 20% of the business' net worth in the preceding 1 to 2 years. If the foreign national investor would like to invest in a new business venture, they must remain involved with the enterprise and manage the day-to-day operations to help ensure its continued success. While an investment in a troubled business need only preserve a certain number of jobs, an investment in a new enterprise must create at least 10 additional full-time jobs for U.S. workers.

If a foreign national has the means to make the size of investment required by the EB-5 preference category, they should seriously consider it. Not only would it help them and their family members obtain green cards much faster, but it would also help to bolster the U.S. economy and create or preserve many vital jobs for U.S. workers.

States and cities with higher unemployment rate such as Columbus, Ohio and Michigan can certainly benefit from foreign investment. The purpose of investor visas and immigration is to encourage foreign nationals to invest substantial amounts of capital and resources into the U.S. economy. In light of the current economic climate and staggeringly highly unemployment rate, outside investment could be particularly beneficial to U.S. businesses and U.S. workers. The United States Citizenship and Immigration Services (USCIS) should be encouraged to give priority processing to foreign nationals who apply for investment visas, as they guarantee capital contributions to U.S. businesses and create jobs for U.S. workers. There are three different types of investment classifications: the E visa, the L visa (when opening a new office) and the EB-5 preference category.

The E visa is reserved for Treaty Traders and Treaty Investors. Citizens of countries with which the U.S. maintains a Treaty of Friendship, Commerce and Navigation or a Bilateral Investment Treaty are eligible for an E visa if they meet certain requirements. Treaty Traders are coming to the United States with the intent to conduct substantial trade between the U.S. and the treaty country, whereas Treaty Investors intend to develop or direct the operations of an entity in which they have invested. For both Treaty Traders and Treaty Investors, the amount of trade or investment required is not quantified by statute, but must be "substantial."

The L visa is considered an investment visa when the intracompany transferee is coming to the U.S. to open a new branch office. The intracompany transferee must have executive or managerial experience and continue to work in an executive or managerial position. As is required for any L classification, the employee must have worked abroad for a branch, parent, affiliate, or subsidiary of the U.S. company for at least one out of the past three years. The employer is obligated to ensure the new office investment is sufficient to not only compensate the L manager/executive, but also immediately begin conducting business in the United States.

The EB-5 preference category is the last investor classification. Foreign nationals can qualify for the EB-5 preference category by investing in a new U.S. commercial enterprise that will create 10 additional full-time jobs for U.S. workers. Unlike the E visa, there is a defined minimum investment required: at least $1,000,000 or, if investing in a "targeted employment area," at least $500,000. The EB-5 investor must also continue to be involved in the day-to-day operations of the new commercial entity. The U.S. economy greatly benefits from the investments required to obtain an E visa, certain L visas or the EB-5 preference category and the USCIS, especially during these tough economic times, should be giving expedited processing to investment visa applicants.