CEA Legal | Investor and Employment-Based Visas

Under the new U.S. administration, major changes are expected in the field of business immigration, which is the branch of U.S. immigration law regarding investor and employment-based visas. Although some of the most significant reforms, such as the introduction of a start-up visa or the removal of cap-numbers on H1-B specialty occupations visas, will need to be approved by the U.S. Congress, foreign companies, investors, and individuals with extraordinary abilities will already enjoy a friendlier environment in light of the recently issued new presidential executive orders and USCIS guidelines.

Below is an analysis of some of the requirements of the investor and employment-based visas that are expected to be interpreted more favorably to the applicants:

E2 Non-Immigrant Temporary Investor Visa

For those who are seriously committed to a major business project, the U.S. Government offers the E-2 Investor Visa depending on the investor’s country of citizenship and on whether specific criteria are met:

• Real and operating

To be considered adequate, the investment has to be active, which means to be real, concrete, and the outcome of a serious financial commitment. The investment should be at risk, which means that a simple transfer of capital from a foreign bank account will not be sufficient to get an E2 Investor Visa. A number of additional steps (purchase of equipment, lease of commercial premises, and so on) are required.

• Liquidity

“How much should I invest to obtain the visa?” The law says that the investment needs to be substantial, and therefore the amount is relative to the specific industry. For instance, if you want to open a new restaurant with 100 seats on Fifth Avenue in New York City, $100,000 will not be enough. On the other hand, we have had an investor’s visa approved with as little as $80,000 when the start-up costs were relatively low.

To be defined substantial, the investment has to be:

• Proportional to the value of the business (in case of pre-existing one)

or

• Enough to guarantee the creation of a new business.
• Not Marginal

The investment shall be able to create new job opportunities for American citizens and not only for the investor and his or her family. In the case of start-ups, the initial business plan will have to demonstrate in great detail how these job opportunities will be created.

One of the best features of the E2 Investor Visa program is that the investor is allowed to hire and sponsor other E2 visas for essential employees and managers having the same nationality as the principal investor.

O-1 Extraordinary Ability Visas

The O-1 visa is destined for people who can demonstrate the following: 1) extraordinary ability in science, education, business, and athletics; or 2) extraordinary ability in the arts. This category is not limited to fine arts, performing arts, and visual arts but includes any field of creative activity or endeavor. Photographers, designers, architects, writers, and even hairdressers and chefs are all considered artists for immigration purposes and can qualify for an O-1 visa; or 3) extraordinary achievement in the motion picture or T.V. industries.

The difference among the three categories lies in the standard of proof. The most challenging cases are those for people with extraordinary ability in science, education, business, and athletics because they are reserved only for those who have risen to the very top of their field of endeavor, representing a very small percentage. A less stringent standard of proof is applied to those who try to make a case of extraordinary achievement in the motion picture or T.V. industries. It is required that the O-1 visa beneficiary be outstanding, suggesting the beneficiary be well-known and exceptional. Finally, the category for people with extraordinary ability in the arts is the easiest to prove because a level of distinction is sufficient. To show distinction, the beneficiaries need to present documentary evidence of their extraordinary ability in a specific field.

To obtain an O-1 visa, the beneficiary is required to satisfy at least (3) three categories out of six typically by showing mass media coverage, awards, and recommendation letters.

In an O-1 Application, the Petitioner needs to be either a U.S. employer or a U.S. Agent. The first needs to be a person or a business that will exclusively employ the beneficiary. An employment contract or, at least, a summary of the terms of the oral agreement can provide sufficient evidence to demonstrate the employer/employee relationship. On the other hand, a U.S. Agent can be in the relevant field and business as an agent and can file the petition without committing to exclusively employing the beneficiary. In these cases, it will be required to provide an itinerary of planned or proposed events.

H-1B Specialty Occupation

Every year, on April 1st, the United States Citizenship and Immigration Services (USCIS) begins accepting applications for H-1B visas, better known as “work visas.”

First, there is a cap (limitation) on the number of H-1B visas made available every year by the USCIS. Only 85,000 visas of this type can be issued annually to applicants from all over the world. This number is further reduced for many applicants, since 20,000 out of 85,000 H-1Bs are reserved for those with advanced degrees (like master’s, for instance) obtained in the U.S., leaving only 65,000 for the rest of the applicants.

To deal with such an excess demand, USCIS resorts to a computerized draft lottery that automatically decides which applications deserve to be evaluated (not approved). In contrast, the non-drafted ones are sent back without any consideration. In turn, the lucky drafted applicants get the right to have their application reviewed by USCIS on their merits.

The USCIS will only approve an H-1B application when specific criteria are met:

1 – An employer/employee relationship must be in place. An independent contractor relationship is not sufficient. USCIS will verify whether the employer retains control over the employee’s activities and whether the employee is incorporated into the employer’s organization.

2 – The beneficiary needs to be employed in the specialty occupation consistent with her or his educational and professional background. In other words, USCIS opens the door only to skilled foreigners. Not only does the applicant need to have a degree in the field in which she or he intends to work in, but the position itself, by its nature, must require at least a bachelor’s degree. USCIS generally relies on the U.S. Department of Labor to verify whether a particular occupation indeed requires at a minimum a bachelor’s degree. While such specialty occupations as attorneys, physicians, architects, etc., generally do not raise an issue with this qualification, professions such as marketing specialists, analysts, graphic designers, and many others frequently do.

3 – The wages offered by the employer to the applicant must be at least average wages offered for similar jobs in the same geographic area as the proposed employment. USCIS utilizes the data from the Department of Labor to assess this crucial requirement, which eliminates ‘frivolous’ applications, thus rendering the H-1B work visa a benefit reserved for most skilled foreign applicants.

L-1 Visa Intracompany Transferees

L1 visas allow companies that have a presence both abroad and in the U.S. (whether an existing one or a brand new office) to send to the United States managers or executives (L-1A) or employees with specialized knowledge (L-1B). The applicant must have worked for the company abroad for one continuous year within the three years before the day the application is filed. Managerial capacity designates the ability of the applicant to supervise and control the work of other employees and to manage the company, or a department, function, or a component of the company. Specialized knowledge either means knowledge the employee has about the company’s product, service, research, equipment, techniques, management, or an advanced level of knowledge or expertise in the company’s processes and procedures.

Contact:

• Email: info@cealegal.com, Phone: (212) 618 1644.

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