H-1B visas are for professional positions or “specialty occupations” defined as a position requiring at minimum of the equivalent of a U.S. Bachelor’s degree. H-1B status can be initially granted for up to three years, with the possibility of an extension for up to an additional three years. Extensions beyond six years are possible if the beneficiary is being sponsored for permanent residence.. The H-1B category is subject to a cap in any one fiscal year.
The L-1 visa allows for the transfer of employees of foreign entities to U.S. parent, affiliate, and subsidiary companies. Executive, managerial, or specialized knowledge employees are eligible. Employees performing managerial or executive assignments in the United States hold L-1A status, with a maximum validity period of seven years, for an initial petition of three years and two extensions of two years each. L-1B Employees performing specialized knowledge assignments, with a maximum validity period of five years, for an initial petition of three years and one extension of two years.
The U.S. and foreign companies must currently be parent and subsidiary, parent and branch, or affiliates. Companies involved in joint ventures may also file L-1 petitions, as long as the joint venture company is at least 50% owned, with equal control and veto power, by the sponsoring company. The qualifying relationship must exist at the time the petition is filed; it need not have existed throughout the transferee’s qualifying employment.
The employee must have been continuously employed full-time by the foreign company, in an executive, managerial, or specialized knowledge capacity for at least one year in the immediate preceding three years before filing the L petition. The transferee’s assignment must in turn involve executive, managerial, or specialized knowledge duties. The assignment in the United States need not be the same as overseas (e.g., a specialized knowledge individual abroad may transfer to the U.S. as a manager).
The E Non-immigrant Visa category is set aside for foreign nationals entering the United States to engage in trade or investment under the terms of a treaty of commerce and navigation between the United States and the foreign national’s country. These treaties exist between the United States and almost fifty countries .
Treaty Traders (E-1):
Nationals of treaty countries can enter the United States to work for an enterprise engaged in substantial trade principally between the United States and the treaty country, provided the enterprise is at least fifty percent owned by the treaty nationals (either other companies or individuals). The foreign national must be employed in a supervisory or executive position or one involving skills essential to the operation of the enterprise. The definition of “trade” means not only the exchange, purchase, or sale of tangible goods, but also the exchange, purchase, or sale of services or the transfer of technology. There is a three prong test for determining what constitutes trade: It must constitute an exchange, be international in scope; and must involve qualifying activities.
In order to qualify as trade, the exchange must be “actual,” “meaningful,” and for consideration. Trade between the treaty country and the United States must already be in progress on behalf of the individual or firm to qualify for treaty trader classification. Because the objective of the treaties “is to develop international commercial trade between the two countries,” the trade activities must be international in scope. Domestic trade without international exchange does not constitute trade. The trade must be between the United States and the treaty country. In addition, the trade must be substantial. Substantial trade is an amount of trade sufficient to ensure a continuous flow of international trade items between the United States and the treaty country. It does not necessarily refer to the monetary value of the transactions but rather to the volume of trade.
Treaty Investors (E-2):
For treaty investor status, the investment enterprise must be at least fifty percent owned by nationals of the treaty country, and the foreign national investor or employee must also be a national of that country. The primary treaty foreign national must direct and develop the business. The employee treaty foreign national must be filling a supervisory or executive capacity or one requiring a highly trained and specially qualified technical employee.
The investment must be active, not just passive investment such as in stock or real estate. The investment must be substantial, measured not by absolute dollar amounts but by the amount actually invested in proportion to the total value of the enterprise or to the starting cost of the enterprise. The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity. It cannot be a paper organization or an idle speculative investment held for potential appreciation in value, such as undeveloped land or stocks held by an investor without the intent to direct the enterprise. The investment must be a commercial, for profit enterprise.
The amount invested in the enterprise should be compared to the cost (value) of the business by assessing the percentage of the investment in relation to the cost of the business. If the two figures are the same, then the investor has invested 100% of the needed funds in the business. Such an investment is substantial. The vast majority of cases involve lesser percentages. The proportionality test can best be understood as a sort of inverted sliding scale. The lower the cost of the business the higher a percentage of investment is required, whereas, a highly expensive business would require a lower percentage of qualifying investment. There are no bright line percentages that exist in order for an investment to be considered substantial. The lower the cost of the business the higher the percentage of qualifying investment is anticipated.
The E-2 treaty investor must demonstrate that the treaty enterprise has the present or future capacity to generate more than a minimal living for the investor and his or her family. However, there is no minimum threshold for the number of jobs that must be created.
NAFTA is the North American Free Trade Agreement. The nonimmigrant NAFTA Professional (TN) status allows citizens of Canada and Mexico, as NAFTA professionals to work in the United States.
Professionals of Canada or Mexico may work in the U.S. under the following conditions:
- Applicant is a citizen of Canada or Mexico;
- Profession is on the NAFTA list and the individual has the qualifications of the profession;
Self-employment employment is not permitted.
O-1 Extraordinary Ability
The O-1 visa category is for individuals coming to the U.S. temporarily who have extraordinary ability in the sciences, education, business, athletics or arts or extraordinary achievement in the motion picture or television industry.
The P-1 classification applies to a foreign national coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.
The P-1 classification also applies to a foreign national coming temporarily to perform as a member of a foreign-based entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time. This person also must have had a sustained and substantial relationship with the group (ordinarily for at least one year) and/or provide functions integral to the group’s performance.