U.S. VISA OPTIONS FOR OWNERS AND INVESTORS IN U.S. BUSINESSES AND COMPANIES

In addition to the many business, investment and trading opportunities opened by ownership or investment in a U.S. Company, in many cases, ownership, investment or management of a U.S. Company may provided opportunities to obtain immigrant status or non-immigrant status in the United States. The following details some of the possible immigration and visa options which may arise from U.S. company ownership, investment or management.

E-1/E-2 VISAS TREATY TRADER/TREATY INVESTOR VISAS

IMPORTANT NOTE FOR OUR INDIAN NATIONAL CLIENTS: Many so called “Visa Companies” and even some unethical lawyers are notorious for preying on Indian National clients, inside and outside India, by claiming that they can apply for and/or obtain E visas for them. At this time, Indian Nationals are not eligible for E Treaty Trader or E Treaty Investor Visa status. E Visa status requires a Treaty between the United States and the applicant’s home country which provides for E visa status. At this time, a Commercial Treaty does not exist between the U.S. and India. For alternatives to E visas which are available to Indian Nationals, please see our other visa category information on this website or, contact our office directly at [contact link].

Notwithstanding the above limitation on E visa applications by Indian Nationals, E visa are available to many of our clients in Asia and throughout the world. The following countries have Commercial Treaties with the United States which provide for E visa status to citizens of those countries listed:

E-2 Treaty Investors E-2 Visa Treaty Investor Eligible Countries

E-2 Visa Treaty Investor

Notwithstanding the above limitation on E visa applications by Indian Nationals, E visa are available to many of our clients in Asia and throughout the world. The following countries have Commercial Treaties with the United States which provide for E visa status to citizens of those countries listed:

As such, to qualify for this visa the applicant must have invested or plans to invest in the near future a substantial amount of capital within America.

E-2 Visa Treaty Investor

• Be a citizen of a country that has entered into a Commercial Treaty agreement with the United States that provides for E visas (see E-2 table above);
• Provide “substantial” investment;
• Be planning to establish an active business enterprise;
• Be in a role which is managerial or supervisory in nature; and he investment must be committed or “at risk”.

For the purposes of an E-2 visa application, a “substantial” amount of capital or investment is:

• Substantial in the proportional sense, that is, in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration. The investment considered “substantial” is therefore related to the business proposed. The investment required for a service business (a restaurant, for example) might be substantially less than the investment considered substantial for a manufacturing business which requires expensive equipment or large business premises;
• The investment must be sufficient to ensure the visa holder's financial commitment to the successful operation of the enterprise (in short, a sufficient amount of investment to show that the investor is serious about making a successful business); and
• Of a level to support the likelihood the Treaty Investor will successfully develop and direct the enterprise.

The funds used for investment must be the E-2 visa applicant’s own funds, and documentary evidence will be required to prove this. These funds, however, may be in the form of loans (as long as the loan is not collateralised by the acquired assets) and other assets such as equipment, fixtures, inventory, patent rights, royalties and other contract rights so long as there value can be objectively appraised.

In addition, any business undertaken as part of the investment must not be “marginal” in nature. That is, to be legitimate, the business must have the present or future capacity to generate more than enough income for the Treaty Investor and their family. The projected future income-generating capacity should generally be reachable within 5 years from the date that the E-2 Visa holder commences the normal business activity of the enterprise.

A spouse of an E-2 Visa holder and any dependent children are also granted E-2 visa status.

E-2 Treaty Investors

E-1 Visa Treaty Trader Eligible Countries

E-1 Visa Treaty Traders

The Treaty Trader (E-1) Visa is the result of an agreements between the United States and certain other nations regarding commerce that provide nationals of those countries permission to enter and work in the United States if they meet certain conditions.

Applicants under this category must be the same nationality as the company for which they work, and the company must be undertaking a level of trade with America sufficient to support the employee in America.

To be eligible for an E-1 Treaty Trader visa:

• The applicant must be a national of a country which has a Commercial Treaty with the United States;
• The applicant must intend to conduct trade in the United States of a “substantial” nature (an amount of trade sufficient enough to ensure a continuous flow of international trade items between the United States and the Treaty country);
• The trade must be conducted principally between the United States and the Treaty country of which the applicant is a national;
• If the applicant is not the principal trader, he or she must be employed in a managerial or executive capacity or have specialized knowledge which makes their presence essential for the operation of the trade; and
• The applicant must intend to leave the United States when the visa expires.

The E-1 Visa initially allows a stay of up to 2 years, although there is no limit to the total time the visa holder may remain in America providing they continue to meet all visa extension requirements. In addition, the spouse of an E-1 Visa holder and dependent children are also granted this visa status.

HOW WE CAN HELP

Our firm can perform all necessary services to register your U.S. Company properly and to assist you in structuring your company framework to facilitate your future application for an E visa to manage your U.S. investment or, to manage your trading between the United States and your home country.

Our affiliated network of highly qualified and licensed U.S. Immigration attorneys are available to assist you at every stage of the E Visa process. Our firm will place you with one of our network U.S. Immigration attorneys to handle all aspects of your E Visa petition and to guide you through the process, at a reasonable professional fee.

Please note that the foregoing is only a brief explanation of the E visa category. For additional, detailed information on E Visas and the legal requirements that apply, please contact our offices at [email contact]

H VISAS

For the alien employee to qualify for H visa status, a petition must be filed with USCIS by a “U.S. employer”. U.S. employers seeking to employ foreign nationals in the United States may choose from several H visa categories covering professional workers, temporary workers in shortage occupations, nurses, and trainees.

There are several H visa categories including: (a) H-1B professionals, (b) H-1C nurses in shortage areas, (c) H-2A temporary or seasonal agricultural workers in short supply, (d) H-2B temporary nonagricultural workers in short supply, and (e) H-3 trainees. Spouses and minor children accompanying a principal H worker or trainee may apply for and obtain derivative H-4 non-immigrant status, which does not permit employment.

The INA imposes an annual limit on the number of aliens who may be issued visas or given status in the H-1B, H-1B1, H-1C, and H-2B classifications. As a result, petitions seeking these these highly sought after and limited visas filed on April 1st of each year, often use up the allotment of annual visas very quickly. Careful planning a number of months in advance must be undertaken to insure filing on the first day available for filing each year, April 1st. In a number of the past few years, any petitions filed after that date are returned as exceeding quota.

HOW WE CAN HELP

Our firm can perform all necessary services to register your U.S. Company properly and to assist you in structuring your company framework to facilitate your future application for an H visa for you for necessary, qualifying and eligible employees to enter the United States to work in your U.S. Company’s operations.

Our highly qualified and licensed U.S. Immigration attorneys are available to assist you at every stage of the H Visa process. Our firm will place you with one of our U.S. Immigration attorneys to handle all aspects of your H Visa petition and to guide you through the process, at a reasonable professional fee.

Please note that the foregoing is only a very brief explanation of the H visa category. For additional, detailed information on H Visas and the legal requirements that apply to both the sponsoring U.S. Company/Employer and the alien Beneficiary , please contact our offices at [email contact]

INTRACOMPANY TRANSFEREES (L-1A and L-1B Visas)

The L-1 intracompany transferee classification is a useful vehicle for multinational companies seeking to transfer high-level managers, executives and employees with specialized knowledge from overseas to provide services in a similar capacity to a related company in the United States.

The Immigration and Nationality Act defines the terms of eligibility for L-1 intracompany transferee status. L-1 status may be available to persons who have worked abroad for one continuous year within the preceding three years and who are being transferred to the United States to work in an executive, managerial, or specialized knowledge capacity for the same business or a qualifying related business. The employment abroad must have been in an executive, managerial, or specialized knowledge capacity. The L-1 transferee does not necessarily need to work in the United States in the same capacity as abroad. For example, a manager abroad could be transferred to the United States in a specialized knowledge capacity, or vice versa.

The maximum lengths of time that an alien may remain in L-1A visa status is seven (7) years. The maximum time that an alien may remain in L-1B visa status is five (5) years. Please note that most L visa holders convert to permanent resident (green card) status within the respective seven or five year periods although, it is not required that they do so.

SPONSORING U.S. COMPANY (PETITIONER) REQUIREMENTS

In order to transfer an employee from an entity abroad to a U.S. entity, the sponsoring U.S. Company (petitioner) must be part of a qualifying organization. First, a qualifying organization must be a U.S. or foreign firm, corporation, or other legal entity. Second, the organization must be doing business as an employer in the United States and in at least one other country through a relationship defined in the regulations, including parent, branch, subsidiary, or affiliate.

EXAMPLE: Executive or Manager has worked for Company A, an Indian company, for 2 years in the capacity of Manager of Sales and Business Development. In order to expand into the United States, Company A sets up Company B, a U.S. Limited Liability Company, as it’s subsidiary, branch or affiliate. Thereafter, Company A wishes to transfer Manager to it’s U.S. company to act in the capacity of Manager of Business Development and Marketing. An L-1 visa would be the appropriate category for this purpose, as an “Intracompany Transferee”. In other words, the executive or managerial employee is being transferred by the Company from it’s Indian parent to it’s subsidiary, branch or affiliate company in the United States.

The petitioning U.S. company must establish an employer-employee relationship with the intracompany transferee. The executive or manager beneficiary may still continue to receive a salary and benefits from the foreign entity. However, the U.S. company must have control of the employee.

EMPLOYEE (BENEFICIARY) REQUIREMENTS

• The beneficiary must have worked abroad (outside the United States)for at least one continuous year for a qualifying foreign entity. The qualifying employment abroad can occur any time within the three years preceding the filing of the I-129 petition for L status.
• The beneficiary must be an “Executive”, “Manager” or, employee possessing “specialized knowledge”. These terms are, generally defined as follows:

1. The term ”managerial capacity“ means an assignment within an organization in which the employee primarily carries out the following functions:
• Manages the organization, or a department, subdivision, function, or component of the organization;
• 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;
• Has the authority to hire and fire, or recommend those actions as well as other personnel actions, if another employee or other employees are directly supervised or, if no other employee is directly supervised, functions at a senior level within the organization or with respect to the function managed, and;
• Exercises substantial discretion over the day-to-day operations of the activity or function for which the employee has managerial authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of his or her supervisory duties unless the employees supervised are professional.
2. The term ”executive capacity“ means an employment assignment within an organization in which the employee primarily carries out the following functions:
• Directs the management of the organization or a major component or function of the organization;
• Establishes the goals and policies of the organization, component or function;
• Exercises wide latitude in discretionary decision-making; and
• Receives only general supervision or direction from higher-level executives, the board of directors, or stockholders of the organization.
3. The regulations define “specialized knowledge” to mean:
• Special knowledge possessed by an individual of the petitioning company’s products, services, 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.
• The test for specialized knowledge centers on a product or process within a particular company. “The alien should possess a type of specialized or advanced knowledge that is different from that generally found in the particular industry. The knowledge need not be proprietary or unique. Where the alien has specialized knowledge of the company or product, the knowledge must be noteworthy or uncommon. Where the alien has knowledge of company processes or procedures, the knowledge must be advanced.”

Dependents of L-1 Visa Holders

Spouses and minor children of L-1 visa holders may enter the United States in L-2 status. L-2 spouses, but not other L-2 dependents, are eligible for employment. The status of an L-2 dependent is subject to the same period of admission and limitations as the principal L-1 visa holder. The statute and regulations allow L-2 status only if the dependents are accompanying or following to join the L-1 principal.

Special Issues for New Offices

Special regulations apply to L-1 transferees who come to the U.S. for the purpose of opening a new office. A “new office” is defined as “an organization that has been doing business in the United States through a parent, branch, affiliate or subsidiary for less than one year.” Additional evidence, including evidence of office space and a business plan, must be submitted, and the petition is initially approved for one year rather than longer periods applicable to companies operating for more than one year at the time of application for L-1 status. Subsequent renewals will then be for the longer period of time, assuming that the U.S. company is, in fact, still in existence and operation at that time.

HOW WE CAN HELP

Our firm can perform all necessary services to register your U.S. Company properly and to assist you in structuring your company framework to facilitate your future application for an L visa in order for you to transfer necessary, qualifying and eligible employees to the United States to manage your U.S. and International business operations.

Our affiliated network of highly qualified and licensed U.S. Immigration attorneys are available to assist you at every stage of the L Visa process. Our firm will place you with one of our network U.S. Immigration attorneys to handle all aspects of your L Visa petition and to guide you through the process, at a reasonable professional fee.

Please note that the foregoing is only a brief explanation of the L visa category. For additional, detailed information on L Visas and the legal requirements that apply to both the sponsoring U.S. Company/Employer and the alien Beneficiary , please contact our offices at [email contact]