Business Visa Specifics

Calamia Law- Employment Based Immigration Information

• I-140 Petition for Alien Worker
• Adjustment of Status through employment
• Consular Processing
• B2 Visa for Tourists
• B1 Visa for Business Purposes
• F1 Visa for Students
• E1 Visa for Treaty Trader
• E2 Visa for Treaty Investor
• E3 Visa for Australians Specialty Worker
• H1B Visa for Specialty Worker
• H2A Visa for Agricultural Worker
• H2B Visa for Temporary Worker
• H3 Visa for Training
• J1 Visa for Exchange Visitor Program
• L1 Visa for Intracompany Transferee
• TN Visa for Professionals from Canada and Mexico (NAFTA)

INTRO

Employment Based Immigration

An immigrant is a foreign national who has been authorized to live and work permanently in the United States. If you want to become an immigrant based on the fact that you have a permanent employment opportunity in the United States, or if you are an employer that wants to sponsor someone for legal permanent residency based on permanent employment in the United States, you must go through a multi-step process.

First, foreign nationals and employers must determine if the foreign national is eligible for legal permanent residency under one of USCIS' paths to legal permanent residency.

Second, most employment categories require that the U.S. employer complete a labor certification request (Form ETA 750) for the applicant, and submit it to the Department of Labor's Employment and Training Administration. Labor must either grant or deny the certification request. Qualified alien physicians who will practice medicine in an area of the United States which has been certified as underserved by the U.S. Department of Health and Human Services are relieved from this requirement.

Third, USCIS must approve an immigrant visa petition, Form I-140, Petition for Alien Worker, for the person wishing to immigrate to the United States. The employer wishing to bring the applicant to the United States to work permanently files this petition. However, if a Department of Labor certification is needed the application can only be filed after the certification is granted. The employer acts as the sponsor (or petitioner) for the applicant (or beneficiary) who wants to live and work on a permanent basis in the United States.

Fourth, the State Department must give the applicant an immigrant visa number, even if the applicant is already in the United States. When the applicant receives an immigrant visa number, it means that an immigrant visa has been assigned to the applicant. You can check the status of a visa number in the Department of State's Visa Bulletin.

Fifth, if the applicant is already in the United States, he or she must apply to adjust to permanent resident status after a visa number becomes available. If the applicant is outside the United States when an immigrant visa number becomes available, he or she will be notified and must complete the process at his or her local U.S. consulate office.

There are four categories for granting permanent residence to foreign nationals based upon employment:

EB-1 Priority workers:

1. Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics.
2. Foreign national that are outstanding professors or researchers.
3. Foreign nationals that are managers and executives subject to international transfer to the United States.

EB-2 Professionals with advanced degrees or persons with exceptional ability:

1. Foreign nationals of exceptional ability in the sciences, arts or business.
2. Foreign nationals that are advanced degree professionals.
3. Qualified alien physicians who will practice medicine in an area of the United States which is underserved.

EB-3 Skilled or professional workers:

1. Foreign national professionals with bachelor's degrees (not qualifying for a higher preference category).
2. Foreign national skilled workers (minimum two years training and experience).
3. Foreign national unskilled workers.

EB-4 Special Immigrants:

1. Foreign national religious workers.
2. Employees and former employees of the U.S. Government abroad.

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I-140 Petition for Alien Worker

Is a petition used to apply for permanent residence based on employment in the United States. An I-140 petition is called an Immigrant Petition for Alien Worker and permits qualifying employees in the United States to apply for an immigrant visa, also referred to as permanent residence, or the "Green Card."

An I-140 petition is the second step in the Green Card process. Once your Labor Certificate is approved, your employer will file a Form I-140 -(know as Petition for Immigrant Worker) - on your behalf.

If labor certification is not required, the I-140 is the first step in the permanent residency process.

To qualify for this petition, you must have evidence of any one of the following:

1. Extraordinary ability in the sciences, arts, education, business, or athletics.
2. Experience as outstanding university professor or researcher.
3. In the past 3 years, 1 year of employment as a multinational executive or manager for the foreign affiliate of the petitioning U.S. company.
4. Exceptional ability in the sciences, arts, or business.
5. A Masters degree and has been offered employment of which is in the national interest (national interest waiver).
6. A Masters degree, or a Bachelors degree with 5 years progressive experience.
7. A Bachelors degree or two or more years experience.
8. PERMANENT LABOR CERTIFICATION and evidence that the worker qualifies for the position.

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Adjustment of Status through employment

Adjustment of Status under INA Section 245(a)

Adjustment of status refers to the procedure for becoming a legal permanent resident without having to leave the United States. It should be distinguished from the traditional method of gaining permanent residence, which involves applying for an immigrant visa at a consular post abroad.

Adjustment of status is discussed at §245 of the Immigration and Nationality Act ("INA"). According to INA §245(a), the status of an alien who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if:

1. The alien makes an application for such adjustment.
2. The alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and
3. An immigrant visa is immediately available to him at the time his application is filed.

Adjustment of Status under INA Section 245 (i)

Aliens in some categories were previously permitted to adjust their status pursuant to INA §245(i) despite their ineligibility (by paying a penalty fee pursuant to that subsection). INA §245(i) expired on January 14, 1998. However, the enacted Legal Immigration and Family Equity Act of 2000 ("LIFE Act") extends INA §245(i) by replacing the old eligibility cutoff date with a new date of April 30, 2001.

This means that eligible aliens had until April 30, 2001 to file an immigrant petition or labor certification application to be eligible to adjust their status in the United States. Under the LIFE Act, INA §245(i) will be available to any beneficiary of a bona fide immigrant visa petition (an I-130, I-140, or I-360) or application for labor certification that is filed on or before April 30, 2001. All qualified beneficiaries will be "grandfathered-in" under INA §245(i) even if they don't actually apply for adjustment of status (by submitting form I-485) until after the April 30, 2001 deadline, as long as a bona fide immigrant petition or labor certification application is filed before that date.

It should be mentioned that the LIFE Act has added a new "physical presence" requirement. Applicants need to prove that they were actually in the United States on the date of enactment (December 21, 2000) in order to be eligible to use INA §245(i). Beneficiaries of immigrant petitions or labor certifications that are filed after the old deadline of January 14, 1998, but before the new deadline of April 30, 2001, will be required to prove that they were physically present in the United States on December 21, 2000.

The INA §245(i) penalty fee is still $1,000USD, and is in addition to any other filing fees levied by USCIS. The $1,000USD fee is paid at the time of filing the Form I-485A, which is submitted along with the standard application for adjustment of status (Form I-485).

Beneficiaries applying for adjustment of status can apply at the same time with their spouse and children.

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Consular Processing

Consular Processing is the process by which a beneficiary of an immigrant petition (either family based or employment based) who is outside the United States applies for an immigrant visa at a U.S. consulate overseas. This process will commence only when the underlying immigration petition is approved and visa numbers for the prospective immigrant's country are available. If the beneficiary is in the United States, he or she may apply for adjustment of status through the USCIS, or may choose to immigrate via consular processing abroad.

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B2 Visa for Tourist

Foreign nationals who wish to visit the United States for leisure or tourism are normally eligible to receive a B2 Tourist Visas. B2 Tourist Visas are "visitor visas" required for citizens of countries that are not included in the Visa Waiver Program. However, even citizens of countries included in the Visa Waiver Program are required to obtain a B2 visa if they plan to stay in the United States for longer than 90 days, change status to other nonimmigrant visa, or adjust status to permanent resident (Green Card) after entering the country.

B2 Visa for Medical Treatment: B2 Visas are also issued to individuals who are coming to the United States to undergo medical treatment. The application process is similar to that of a Tourist Visa, but there are additional documents that must be submitted to establish that the applicant qualifies for the visa.

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B1 Visa for Business Purposes

Nonimmigrants who wish to visit the United States for business must obtain a B1 visa to enter the United States. Generally these visas are valid for five to ten years. However, the visa holder is only allowed to remain in the United States while his or her I-94 card is valid. B1 holders should return to their home country or apply for a visa extension before their I-94 card expires. Failure to extend the visa or return home can result in the current visa being revoked and future visa applications being denied.

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F1 Visa for Students

F-1 Student Visa General Information: The United States welcomes foreign students to American language schools, high schools, universities and other institutions of higher education. Thousands of learning institutions are approved by the USCIS to accept foreign students as full time students. It is possible to change schools and universities while being on an F-1 Visa without leaving the country.

F-1 Student Visa Eligibility Requirements: An applicant for a US student visa must come to the United States to pursue an academic program in an institution recognized by the United States government. The foreign citizen must have a valid educational purpose for coming to the United States and be a full time student. It is not possible to be a part-time student on an F-1 Visa. The student can stay in the United States for as long as he/she is enrolled in school. The student visa is normally issued at a U.S. Embassy or Consulate in the student's home country.

Traveling on F-1 Student Visa: Foreign students may enter the United States multiple times if they hold a valid F-1 Student Visa. It is important that the F-1 Student Visa holders have all the necessary documents and signed authorizations to avoid any problems at the U.S. port of entry.

The passport must also be valid for a certain amount of time in order to be granted entry. F-1 Visa holders can also travel freely within the United States.

- Working on F-1 Student Visa: Students may work on campus as long as they are enrolled in school.

- Students may apply for Curricular Practical Training (CPT) to gain work experience in their field of study while being a full time student.

- Students may take advantage of Optional Practical Training (OPT) once the degree is completed as a full time employee.

- Many students obtaining a bachelor or master degree in the United States go on to be sponsored by their employer for an H-1B Work Visa.

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E1 Visa for Treaty Treader

The E1 visa is for nationals from countries with which the United States has a treaty of friendship, commerce, and navigation who are coming to the United States to engage in substantial trade between the United States and the alien's country of nationality. The E1 visa employee must hold a supervisory or executive position or have skills which are essential to the successful operation of the enterprise. The E1 visa is initially valid for two years and may be extended indefinitely.

In order to qualify for an E1 visa, you must be a national of one of the following treaty countries:

Spouses and children of E1 visa holders may enter and remain in the United States in E1 status. E1 visa spouses may apply for work permit. E1 spouses and children may attend school in the United States.

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E2 Visa for Treaty Investor

The E2 visa is designed for aliens engaged in international investment between the United States and the alien's country of nationality. E2 visa holders must make an active and substantial investment as well as perform an essential role in the enterprise that results in the creation of job opportunities for US workers. There is no set amount an E2 visa holder must invest as it depends on the type of enterprise. The E2 visa is initially valid for two years and may be extended indefinitely.

In order to qualify for an E2 visa, you must be a national of one of the following treaty countries:

Spouses and children of E2 visa holders may enter and remain in the United States in E2 status. E2 spouses may apply for work permit. E2 spouses and children may attend school in the United States.

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E3 Visa for Australian Specialty Worker

The E3 visa is specifically designed for Australian nationals' who will perform in a specialty occupation in the United States. A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

If the applicant has a college degree or work experience and the job requires a college degree, then the applicant should be able to obtain an E3 visa. Spouses and children of E3 visa holders may enter and remain in the United States in E3 dependent status.

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H1B Visa for Specialty Worker

The H1B visa is for workers who will perform in a specialty occupation. A specialty occupation requires theoretical and practical application of a body of specialized knowledge along with at least a bachelor's degree or its equivalent. For example, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts are specialty occupations.

If the applicant has a college degree or work experience and the job requires a college degree, then the applicant should be able to obtain an H1B visa.

Spouses and children of H1B visa holders may enter and remain in the United States in H4 status. H4 visa holders may attend school in the United States but cannot accept employment.

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H2A Visa for Agricultural Worker

The H2A visa is designated for individuals who will be employed as seasonal farm workers temporarily. The H2A visa may be issued for a period up to one year and may be extended for a three year total duration. There is no numerical limit to the number of H2A visas issued. A single petition may be used to sponsor a large number of H2A visas if:

- They will perform the same services.

- They will work at the same location; and

- They obtain their visa stamp through the same US Consulate.

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H2A Visa for Temporary Worker

The H2B visa is designated for individuals who will be employed in a nonagricultural position which are seasonal, peakload, intermittent or a one time occurrence. Examples of qualifying positions include construction workers, travel agents, restaurant workers, janitors, resort workers, amusement park workers and landscape workers.

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H3 Visa for Training

The H3 visa is designated for individuals who will come to the United States to participate in a training program. There is no numerical limit to the number of H3 visas issued. In order to qualify the H3 visa, the petition must evidence the following:

- The proposed training is not available in the beneficiary's home country.

- The beneficiary will not be placed in a position which is in the normal operation of the business, and in which citizens and resident alien workers are regularly employed.

- The beneficiary will not be productively employed except as incidental to training; and

- The training will benefit the beneficiary in pursuing a career outside the United States.

Spouses and children of H3 visa holders may enter and remain in the United States in H4 status. H4 visa holders may attend school in the United States but cannot accept employment.

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J1 Visa for Exchange Visitor Program

The J1 visa is designated for educational and cultural exchange programs designated by the US Department of State and the Exchange Visitor Program and Designation Staff. The J1 exchange visitor program is designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts, and sciences.

Some J1 visa holders are subject to INA §212(E) and will need to obtain a J1 Waiver before they can change their status to H1B, L1 or to adjust their status to permanent resident.

Spouses and children of J1 visa holders may enter and remain in the United States in J2 status. J2 spouses may apply for a work permit. J2 spouses and children may attend school in the United States.

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L1 Visa for Intracompany Transferee

The L1 visa is for executives or employees with specialized skills of multinational companies who are being transferred from an office overseas to a US office. The visa may also be used by a manager or executive to open a new office in the United States. The L1 visa is initially valid for three years and can be extended to a total stay of five years. There is no prevailing wage requirement for the L1 visa.

Although the L1 visa was deigned for large multinational corporations, it may also be used by smaller companies.

A petitioner which meets the following requirements may file a blanket petition seeking continuing approval of itself and some or all of its parent, branches, subsidiaries, and affiliates as qualifying organizations if:

- The petitioner and each of those entities are engaged in commercial trade or services.

- The petitioner has an office in the United States that has been doing business for one year or more.

- The petitioner has three or more domestic and foreign branches, subsidiaries, or affiliates; and

- The petitioner and the other qualifying organizations have obtained approval of petitions for at least ten "L" managers, executives, or specialized knowledge professionals during the previous 12 months; or have US. subsidiaries or affiliates with combined annual sales of at least $25 million; or have a United States work force of at least 1,000 employees.

Spouses and children of the L1 visa holder may obtain an L2 visa to enter and remain in the United States. L2 Spouses may apply for a work permit. L2 spouses and children may attend school in the United States.

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TN Visa for Professionals from Canada and Mexico (NAFTA)

The TN visa is for Canadian and Mexican nationals employed in professional occupations, including teachers, medical professionals and scientists who wish to work in the United States temporarily. The TN visa is valid for one year and may be extended indefinitely.

Spouses and children of the TN visa holder may obtain a TD visa to enter and remain in the United States. The TD visa holder may attend school but if he or she wishes to work, he or she must change his or her status to obtain a work visa.