Coming to America:
Non-Immigrant and Immigrant Business Visa Applications

Introduction:

The United States is a nation of immigrants and what this nation has become is predicated on the skills and perseverance of millions of people who have come here from every nation on the planet. It is revealing to note that the average American citizen has only been in the United States for two generations or less and no American citizen was here four hundred years ago... aside from the Native Americans

Many consider the most valuable "business advantage" of America our willingness to accept hardworking and talented people from all over the world to become American citizens. It has been said that the best and the brightest people in the world are welcomed to America both for their benefit...and for the continued prosperity of our country.

For a variety of reasons, America may be an attractive residence and place of business for many citizens of other countries. Long an economic center for the world, the United States offers unparalleled economic opportunities for the intelligent and hardworking business person or worker and is considered by many the best place to launch a career or business in the world.

Immigration into the United States is a dream of millions throughout the world and their motivations are as varied as their backgrounds. Quite often the goals are related to business or work and the procedures for entry into the United States are therefore predicated on the criteria related to business.

This article shall concentrate on various visa applications related to business and working within the United States of America. The methods for obtaining a business visa must be followed very carefully. The Department of Immigration and Naturalization Services ("INS") is not known for its compassion or efficiency, and adherence to minute detail is required.

This article will provide an overview discussion of four types of business/working visas.

The first being the more traditional H-1B visa, which requires special skills, training, and a college education;

Second and third, a combined discussion on E-1 and E-2 visas, or so called "treaty visas," which generally require a financial investment and an active involvement in business management, and that the foreign national’s country of citizenship also has a reciprocal treaty with the United States (in other words, a U.S. citizen must have the same opportunity for a visa in the foreign national’s country);

and finally and fourth, an EB-5 immigrant visa, or so called "investor visa," which requires a significant financial investment (generally, U.S. One Million Dollars), active involvement in management, and the creation of at least ten new jobs.

Please note that our Russian and Mainland Chinese clients should pay special attention to the H-1B nonimmigrant visa and the EB-5 immigrant visa, as their countries are either not part of the treaties permitting E-1 and E-2 treaty visas, or their respective treaties have not gone into effect as of yet (March, 2001).

ANALYSIS OF THE FOUR TYPES OF "BUSINESS VISAS"

1. The H-1B Nonimmigrant Business Visa

An H-1B visa permits a foreign national to live and work in the United States for a maximum of two three year terms — for a total of six years. Additionally, H-1B visa holders can bring immediate family members (i.e., spouses and children) to the U.S. However, family members who want to work in the U.S. must separately qualify for a work visa.

A. What’s Behind U.S. Immigration Policy?

While the personal stakes to a foreign national can be great (i.e, higher wages and more freedom), the actual H-1B petitioner is the U.S. employer. Why? Immigration policy is almost entirely economy driven, and so, as the economy goes so does our immigration policy. For example, the U.S. normally permits 65,000 H-1B visas to be issued. However, a booming economy for the past decade has caused Congress to repeatedly increase the number of visas. Recently, the number of H-1B visas was essentially increased from 65,000, to 195,000 for 2001-2003. This increase will lapse after 2003, but if the economy is strong, Congress may again increase the number of visas. If the economy is in recession, Congress is less likely to intervene. In addition, H-1B visas are limited to jobs which have insufficient United States citizens to meet demand. In terms of today’s economy, qualifying jobs are predominantly technology based, including electrical engineers and software developers. The general requirement is that the job taken by a foreign national could not have been filled by a qualified U.S. employee. However, this rule is broad enough so that foreign nationals with backgrounds in advertising, education, and marketing have qualified for H-1B visas.

B. The H-1B Visa Petition Process.

The application process is supposed to take eight to twelve weeks, but processing may be delayed by several months due to current backlogs. Below is a brief, and not exhaustive, list of the mutual responsibilities of the employer and foreign national in pursuing an H-1B visa.

The employer must: (1) attest that it has offered the foreign national a job and that the pay will be at least the "prevailing wage" for that type of job; (2) file appropriate forms; and (3) confirm that the job offered meets certain criteria, including that a bachelor’s degree or higher is a minimum requirement for the position.

Additionally, the foreign national must qualify for H-1B status by confirming that: (1) he/she is going to perform a specialty occupation with a college degree; and (2) he/she has the correct background to qualify for the job offered. In addition, to these general requirements, a foreign national must provide supporting documentation, including translated college diplomas and college transcripts.

C. Conclusion.

An H-1B visa may be a very useful way to secure a talented and motivated employee, while at the same time assisting him/her to improve their quality of life. The combination of the foreign national’s qualifications and their private motivations may be a tremendous addition to a company. However, be aware that the process can be delayed because of bureaucratic snafu’s and that the employer, bears some financial responsibility. Finally, please note that this is merely a snapshot of the H-1B visa petition process, and that this procedure is significantly more complex than can be discussed in the space available.

2. The E-1 and E-2 Nonimmigrant Treaty Visa

An E-1 visa ("Treaty Trader") is for those who will participate in substantial trade, including trading of technology or services between the United States and the treaty country. An E-2 visa (Treaty Investor) is for those who intend to invest into a U.S. company. There are, of course, other requirements, such as you intend to come to the U.S. with the sole purpose to develop and direct an enterprise, your investment will be active and substantial, and that job opportunities for U.S. workers must be created. These additional topics will be addressed below, but let us first address the threshold question, "are you a citizen of a treaty country?"

Generally, to qualify for an E-1 or E-2 visa ("Treaty Visas") you must have a minimum of U.S.$100,000 to invest in the United States and be a citizen of a treaty country. To be a participating treaty country, a treaty of commerce and navigation or a bilateral investment treaty providing for nonimmigrant entry must exist between the treaty country and the United States. Qualifying E-1 and E-2 visa holders are generally given a visa for a period of five years, with two year extensions as requested and approved. Spouses and children are also provided visa’s, however, they may not work in the United States unless they independently qualify for a business/work visa.

A. Treaty Countries

The treaty countries are divided into three categories: (1) countries that have corresponding treaties to both E-1 and E-2 nonimmigrant visas; (2) countries that only have corresponding treaty to an E-1 nonimmigrant visa; and (3) countries that only have a corresponding treaty to an E-2 nonimmigrant visa. Please note the participating countries do change from time to time as these reciprocal treaties between the U.S. and the treaty countries are of an extremely political nature.

In addition to the above countries are some important and particularized restrictions, and some additions. For example, the North American Free Trade Agreement provides for E-1 and E-2 nonimmigrant visas for Mexican citizens. Iran is limited to single entry visas. The United Kingdom is restricted to British nationals, not permanent residents from Canada or Hong Kong. Finally, bilateral investment treaties conferring E-2 nonimmigrant visa status have purportedly been negotiated with Haiti and Russia, but the State Department has not yet confirmed when those treaties will go into effect (as of March 2001).

B. Treaty Trader E-1 General Eligibility Requirements

Qualification for Treaty Trader E-1 nonimmigrant status has several requirements, and regrettably they are very poorly defined by the Immigration and Naturalization Service. Generally speaking, a qualified treaty trader must be an individual who is seeking temporary entry into the United States "to [solely] carry on substantial trade, including trade or services or trade in technology, principally between the United States and the foreign state of which he is a national." "Temporary entry" into the United States also includes that the foreign national intends to return home after the expiration of his or E-1 visa.

Because of this requirement, it is very difficult to convert an E-1 visa into a request for permanent residency (i.e. Green Card). The INS will generally contend that the foreign national sought their E-1 visa without the intention of returning to their home country, and is therefore not eligible for permanent residency — this is a hurdle which may be overcome, but is not a simple task. Therefore, if a foreign national has the option of entering the United States under an H-1B visa, as opposed to the treaty visas (E-1 and E-2), and desires permanent residency, they should enter with an H-1B visa as that may more easily be converted to permanent residence.

What does the INS mean by "substantial" or "trade?" There is no specific definition of "trade" and only loose guidelines regarding "substantial." While there is no specified definition for the term "trade,"it has historically been rather liberally interpreted to include data processing, advertising, accounting, design and engineering, consulting, the law, and technology oriented businesses.

The guidelines for "substantial" trade are: (a) volume of trade; (b) Number of transactions; and (c) the continued course of trade. At least half of the total volume of trade conducted by the Treaty Trader must be between the United States and the treaty country.

C. Treaty Investor E-2 General Eligibility Requirements

The Immigration and Naturalization Service has provided slightly better guidelines for Treaty Investor status than that of Treaty Trader status. As with Treaty Traders, a Treaty Investor must intend to temporarily seek entry into the United States (i.e. intend to return to their home country after the expiration of their E-2 visa), but in this instance to solely develop and direct the operations of an enterprise in which he/she has invested (or is in the process of investing) a substantial amount of capital. The Treaty Investor must be an active participant in the enterprise, playing an essential role, and jobs should be created.

What is meant by "substantial amount of capital?" The investment must be substantial in relationship to the amount of the investor’s money actually at risk in financial transactions. An investor must meet one of two tests to qualify as substantial: (a) the investment must be proportional to the total value of the particular enterprise in question; or (b) the investment must be an amount normally considered necessary to establish a viable enterprise of the type contemplated. The minimum amount has been $50,000, but the best results are with investments of at least $150,000. Approval of a petition with a $50,000 investment is extremely unlikely and not recommended.

As evidence of the substantial investment, in most cases the investor should create job opportunities for qualified United States employees (i.e., U.S. Citizens; temporary or permanent residents; nonimmigrant business visa holders). This is not always required, but should be a goal by the applicant if he/she wants the best opportunity for success with their application. We suggest that the goal should be to create between 1-3 jobs, but this is only a general recommendation as the INS looks at the whole application in making its determination. As a practical matter, however, an investment of $150,000 will not pay the salaries of many employees, which is why job creation is only one element of the requirements.

Active investing means that the investor made an irrevocable commitment of funds that represent an actual, active investment. Purely passive investments such as stock ownership, bank holdings, or ownership of undeveloped land will not qualify as active. However, ownership of residential and commercial buildings, industrial parks and/or shopping centers will qualify as an active commercial enterprise. In addition, the investor must fill a key role within the enterprise, either as a principal investor who will develop and direct the investment, or as a qualified manager or specially trained and highly qualified employee necessary for the development of the investment.

D.Conclusion

An E-1 and E-2 nonimmigrant visa is not for everybody. However, if you are fortunate enough to be a foreign national of a treaty country, this form of visa is an excellent opportunity for you to gain lawful entry into the United States without the substantial investment required of an EB-5 immigrant visa which requires up to ten times the investment amount.

3. The EB-5 Immigrant Investor Visa

The EB-5 Immigrant Investor Visa has been available since 1990, and is often considered the best and fastest way to obtain permanent residency status (aside from marrying an American Citizen). This is because an H-1B visa holder must generally remain in the United States for nearly the entire six years allowed under their visa before applying for residency, and the E-1 and E-2 treaty visas require the foreign national’s intention that they will return to their home country at the expiration of their visa.

As part of the Immigration Act of 1990, Congress created this new type of visa for foreign nationals who wished to enter the United States for the purpose of engaging in a new business venture. Because of the complexity of this application process, we discuss below only the general requirements for successful applications. Often, the Immigration and Naturalization Service will request information in stages and the subsequently requested information will vary based upon your particularized application.

The EB-5 is not restricted to any nationality, unlike the above noted E-1 and E-2 nonimmigrant visas, but it requires a considerable investment and a complex application process. To qualify, the foreign national must invest a minimum of One Million Dollars (U.S.$1,000,000) in a commercial enterprise which will create at least ten full-time jobs for persons authorized to work in the United States. Please also note that multiple foreign nationals may invest in the same enterprise, but they must each invest the required amount, and account for at least ten full-time jobs.

While these figures, both financial and for hiring employees, may appear hard to achieve, an EB-5 investor has two years to achieve the amount invested and the number of jobs created. Also, under certain circumstances, the minimum amount of investment over a two year period may be reduced to Five Hundred Thousand (U.S.$500,000) if the new company is either located in a qualifying rural area, or in an area of high unemployment — in other words, where jobs are most needed. The reduced investment is simply because the United States hopes that EB-5 investors will assist our economy grow, and those who invest in the locations of greatest need should be rewarded by reducing their qualification requirements.

To follow is a brief summary of the more particularized evidence of eligibility requirements:

1. Evidence that a new commercial enterprise has been or is being established. Typically, acceptable evidence will include a copy of the articles of incorporation; articles of organization if a limited liability company; a certificate of merger or consolidation; partnership agreement; and/or a business licence.
2. Evidence that the required amount of capital ($500,000 or $1,000,000) has been invested or transferred into the enterprise, and that the capital was obtained by lawful means.
3. Evidence that the capital is "at risk," which is a new element of evidence that has arisen because of an investor’s practice of using promissory notes (debt instruments) as evidence of investment of capital. To ensure that the promissory notes are not merely a sham method of investment, consular officers are now required to consider three factors.
   1. If the capitalization consists of a promissory note, the investor cannot exercise a sell option until the note is paid-in-full;
   2. The capital will not be deemed "at risk" if it is merely used to make payments on the promissory note; and
   3. If an investor is using a trust fund, it can only be counted as "at risk" capital if the trust funds are fully available to the new commercial enterprise.
4. Evidence that either ten full-time qualifying employees (i.e., U.S. Citizens; temporary or permanent residents; nonimmigrant business visa holders), or a comprehensive business plan evidencing that at least ten full-time employees will be required to be hired within the next two years.
5. Evidence that the investor will be an active partner in the enterprise. Generally, this means that the investor must be active in the day to day managerial duties of the enterprise, or serve through policy formulation such as on the Board of Directors.

The petition process includes "conditional status" once the foreign national’s petition is approved. The conditional status lasts for two years from the date of petition approval, and includes the investor himself/herself, and his/her spouse and children. Ninety days prior to the second anniversary date of obtaining conditional status, the investor must file the following evidence to remove the conditional status and become a permanent resident:

1. That the commercial enterprise was established by the foreign investor;
2. That the foreign investor invested or was actively in the process of investing the requisite capital ($500,000 or $1,000,000); and
3. That the foreign investor sustained the investment and the commercial enterprise throughout the conditional residency period.

Once the foreign investor has made the appropriate showing as outlined above, he/she and their immediate family (spouse and children) are granted permanent residency status, and can eventually become naturalized United States Citizens.

Conclusion

With the various methods of entering the United States, including those listed above, an educated employee or savvy investor will be able to enter the United States legally, and can possibly eventually obtain residency, and even citizenship. What the United States government requires, and which is readily apparent when reviewing the above requirements, is that the foreign national contribute to the economic vitality of our free market economy.

Before deciding which visa status you should apply for, you should confer with a competent immigration lawyer. Applying for the wrong status can only serve to delay your processing and raise unsubstantiated suspicion among the personnel of the Immigration and Naturalization Service. Competent counsel should be able to review your particularized situation and goals, and help you enter and remain in the United States legally, and most importantly, without fear of losing your rights.

These Articles are to give the reader a general description of certain areas of the law. Legal advice is necessary to apply these legal concepts to your particular situation. The Reader should obtain competent legal advice before relying on the Articles.

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