Temporary Visas

OVERVIEW

There are many types of visas in the business setting.  The easiest way to separate the types of visas is to split them into temporary and permanent visas.  Below, let’s look at each type of temporary visa and see which type of visa may fit you or your company’s needs.

TEMPORARY VISAS

There are many types of temporary visas to suit almost any business need.  Let’s look at each type of visa and see what type of visa you may qualify for.

Investors and Traders

Treaty Trader visas (E-1) and Treaty Investor visas (E-2) are non-immigrant or temporary visas for nationals of a country with which the United States maintains a treaty of friendship, commerce and navigation who wish to go to the United States for one of two purposes: to carry on substantial trade, principally between the United States and the treaty country (E-1); or to develop and direct the operations of an enterprise in which the national has invested or is in the process of investing a substantial amount of capital (E-2).

Examples might help clarify the difference between the E-1 and E-2. A business located in the France that designs and manufactures shoes might sell many of its products in the United States. However, it has no retail stores of its own nor any plant there. If the volume of its transatlantic trade is significant and continuous and if its French-US trade makes up more than 50% of its total international trade, then the business could qualify for Treaty Trader status and the owner of the business or some of its employees might be eligible for E-1 visas. Alternatively, a Danish investor might purchase 75% of a restaurant located in Los Angeles. The restaurant operates at a profit and employs over 40 people, most of whom are American citizens. If all the other conditions for the visa are met, the investor could obtain an E-2 visa to enter the United States in order to operate his business and oversee his investment. He would also be able to send qualified employees who are Danish citizens to work in his business if they meet certain specific requirements.

US Embassies around the world have seen a dramatic increase in the number of applications for E-2 visas in the last decade. One cause of this increase has been the strength of the pound against the dollar; another has been the growth in value of UK real estate. Combined, these factors have resulted in large number of British investors with substantial capital who seek to invest in the United States. The US government welcomes such investment. However, it is important for investors to understand the purpose of the E-1 and E-2 visas so that they do not risk losing time and money in a lengthy visa process which may not result in an approval.

The Treaty Trader and Treaty Investor visas were established to facilitate and enhance economic interaction between the United States and other countries. They were not intended to serve as a means for foreigners to retire or merely reside in the United States. U.S. law (see paragraph 101(a)(15)(E) of the Immigration and Nationality Act) explicitly states that E-1 visa holders must enter “solely to carry on substantial trade” and E-2 holders “solely to develop and direct the operations of an enterprise” in which he or she has invested. Moreover, these visas are non-immigrant visas and thus temporary. Treaty trader/investor visas can be renewed or extended only if the investment or trade continues to meet all applicable requirements of U.S. immigration laws and regulations. Persons wishing to remain indefinitely in the United States should apply for the appropriate immigrant Investor visa known as an EB-5 visa.

Source of Funds

One additional requirement for investors is to have the ability to provide proof of source of funding for the investment.  Without proof, the Embassy or Consulate will not issue a visa.  In our office, we request the proof early on in the process.

Investors and Employees. Both owners and employees of treaty trader and treaty investor businesses receive the same kind of visa (E-1 or E-2); the law makes no distinction between them. However, investors and employees go through different processes to get their visas. Investors must submit a binder of supporting documents and wait until this binder has been reviewed by officers at the U.S. Embassy or U.S. Consulate. Once the review is completed, the E-visas Unit will contact the investor to arrange an interview date. Employees of registered companies, on the other hand, may make their appointment through an operator information service. They do not need to submit any documents in advance; however, at the interview they should present a copy of the business registration letter given to the company by the US Embassy.  Please keep in mind the procedure are somewhat different at each U.S. Post so you must learn the requirements for each U.S. Embassy.

Length of Visa. The maximum length for which an E-1 or E-2 visa can be issued to a citizen of a treaty country is 5 years. However, whether or not to issue for that length of time is solely the judgment of the consular officer deciding the case. In London, the U.S. Embassy typically issue the first E-1 or E-2 for two years. We do so because most of the businesses we see are relatively small and small businesses are volatile and often do not succeed. If we renew an E-1 or E-2 visa, we generally do so for the maximum five years although not always. In the case of large companies with high turnover and employing many Americans, we sometimes issue the first visas for five years.

Proper Use of B1/B2 Visas and Visa Waiver Travel for Investors. Potential investors may seek out investment opportunities, sign contracts, and take other steps to purchase or establish a business while traveling on B1/B2 status or on the Visa Waiver Program. However, applicants may not develop and direct a business while in such status. State Department regulations state (9 FAM 41.31 N9.7), “an alien seeking investment in the United States, including an investment that would qualify him or her for status as an E-2 investor, is precluded from performing productive labor or from actively participating in the management of the business prior to being granted E-2 status.” Such actions are impermissible whether or not the investor receives any payment for his work.

Additional Considerations

Spouses of E visas may apply for a work permit once inside the United States.  Additionally, a spouse may attend school without first obtaining a student visa.  Children under the age of twenty-one may attend school but are not eligible to receive a work permit.

Summary

As an experienced Las Vegas Immigration Attorney, Robert west can you review your project to see if it may qualify for a treaty trader visa or a treaty investor visa.  As a skilled Investor Visa Lawyer, Robert West has received an approval for every investor case filed.  Please contact Immigration Lawyer Robert West to set up a consultation to start the process to obtain an E-1 or E-2 visa.

Persons with Extraordinary Ability & Members of the Entertainment Profession (O) & Athletes, Artists & Entertainers (P)

O-1 Visas:  The O-1 visa classification provides for the admission into the United States of persons with extraordinary ability in the sciences, arts, education, business and athletics, or extraordinary achievement in motion picture and television production, and their essential support personnel.

Only individuals qualify for the O-1 visa category. In order for a group to qualify, each member would be required to meet the extraordinary ability test. The visa is granted for a specific event, such as a tour, lecture series or project.

O-2 Visas:  For athletes and members of the entertainment industry, a provision exists whereby aliens, who are an integral part of the performance and have skills and experience which are not available in the United States location, may apply for O-2 visas to accompany the O-1 visa holder.

P-1 Visas:  The P-1 visa classification provides for admission into the United States of certain athletes, entertainers and artists, and essential support personnel. Individual members of the entertainment industry are not eligible for the P-1 visa classification, but individual athletes are.

For members of the entertainment industry, the visa will be issued for a specific event only. However, individual athletes may be admitted for five years and a team for a period of six months.  Immigration Attorney Robert West has a strong interest in professional boxing and mixed martial arts.  The P-1 category is for professional in these fields but the O-1 category is for the tops of these profession.  In some cases, a champion can qualify for permanent residence without a sponsor.

P-2 Visas:  The P-2 visa classification provides for the admission into the United States of an artist or entertainer, either an individual or group, involved in a reciprocal exchange program between an organization or organizations in the United States and one or more foreign countries which provides for the temporary exchange of artists and entertainers.

P-3 Visas:  The P-3 visa classification provides for the admission into the United States of an artist or entertainer, either an individual or group, to perform, teach, or coach under a program that is culturally unique.

• TN NAFTA Professionals
• TN NAFTA Professionals

The North American Free Trade Agreement (NAFTA) created special economic and trade relationships for the United States, Canada and Mexico. The TN non immigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level.

Among the types of professionals who are eligible to seek admission as TN nonimmigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers. You may be eligible for TN nonimmigrant status, if:

• You are a citizen of Canada or Mexico;
• Your profession qualifies under the regulations;
• The position in the United States requires a NAFTA professional;
• You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment – see documentation required below); and
• You have the qualifications to practice in the profession in question.

Eligibility Criteria

Unlike Mexican citizens, Canadian citizens are generally eligible for admission as nonimmigrants without a visa.  The TN category, a nonimmigrant classification, simply reflects this general exemption from the visa requirement.  NAFTA governs which evidence is required to prove whether a Canadian or Mexican citizen is a professional in a qualifying profession.

Canadian Citizens

If you are a Canadian citizen, then you are not required to apply for a TN visa at a U.S. consulate.
You may establish eligibility for TN classification at the time you seek admission to the United States by presenting required documentation to a U.S. Customs and Border Protection (CBP) officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station. You must provide the following documentation to the CBP officer:

Proof of Canadian citizenship;

Letter from your prospective employer detailing items such as the professional capacity in which you will work in the United States, the purpose of your employment, your length of stay, and your educational qualifications; and
Credentials evaluation (if applicable), together with any applicable fees.

Mexican CitizensIf you are a Mexican citizen, then you are required to obtain a visa to enter the United States as a TN non-immigrant. You should apply for a TN visa directly at a U.S. embassy or consulate in Mexico.

Dependents of TN Nonimmigrants

Any accompanying or “following to join” spouse and children under the age of 21 may be eligible for TD non-immigrant status.  Spouses and children are:

• Not permitted towork while in the United States, but they are permitted to study.
• Granted TD status for no longer than the period of time granted to the principal TN non-immigrant.
• Length of Stay

TN and TD visa holders may have an initial period in that status for three years and may renew for three years at a time.  Please note this is a temporary visa and your employer should consider a permanent visa or green card for you if they want to keep you in your job for a very long period of time.

Summary

Temporary Work Visas (H)

Anyone going to the United States with the intention of working there temporarily requires a nonimmigrant work visa. Persons entering the United States on a visitor or business visa, or under the Visa Waiver Program (VWP) are not permitted to work.

Unlike some countries, the United States government does not issue work visas for casual employment. In general, work visas are based on a specific offer of employment.

H-1B visa (specialty occupation) is required by an employee who is coming to the United States to perform services in a prearranged professional job. To qualify, the alien requires a bachelor’s or higher degree (or equivalent) in the specific specialty for which employment authorization is being sought. It is the responsibility of the USCIS to determine whether the employment constitutes a specialty occupation and whether the alien is qualified to perform the services. Before filing the petition, the employer is required file a labor condition application with the Department of Labor concerning the terms and conditions of the contract of employment.

H-2B visa (skilled and unskilled worker) is required by an employee who is coming to the United States to perform a job which is temporary or seasonal in nature and for which there is a shortage of U.S. workers. Before filing the petition form I-129H, with the USCIS Service Center, the employer is required to obtain from the Department of Labor, a labor certification confirming that there are no qualified U.S. workers eligible for the employment on which the petition is based.

H-3 (trainee) is required by a trainee who is coming to the United States to receive training from an employer in any field of endeavor, other than graduate education or training. The training cannot be used to provide productive employment and cannot be available in the individual’s home country. The employer is required to file a petition, form I-129H, with the USCIS Service Center to gain approval for the training.

Intra-Company Transfer Visa(L-1)

Employees of an international company who are being temporarily transferred to a parent, branch, affiliate, or subsidiary of the same company in the United States require Intra Company transfer (L-1) visas. The international company may be either a U.S. or foreign organization. To qualify, the employee must be at the managerial or executive level, or have specialized knowledge and be destined to a position within the U.S. company at either of these levels, although not necessarily in the same position as held previously. In addition, the employee must have been employed outside the U.S. with the international company continuously for one year within the three years preceding the application for admission into the United States.

Opening an office

An L-1 visa is also the appropriate visa classification for a qualified employee of an international company who is coming to the United States to establish a parent, branch, affiliate or subsidiary in the United States, i.e. commence business. When filing the petition, the international company will be required to show that sufficient physical premises to house the new office have been secured and that within one year of the approval of the petition, the intended U.S. operation will support an executive or managerial position. In the case of a person with specialized knowledge, the petitioner will be required to show that it has the financial ability to remunerate the beneficiary and to commence doing business in the United States. A petition for a qualified employee of a new office will be approved for a period not to exceed one year, after which the petitioner must demonstrate that it is doing business as described above in order for the petition and alien’s stay to be extended beyond one year.

Treaty Aliens in Specialty Occupation Visas (E-3)

The E-3 visa allows for the temporary entry into the United States of individuals who are to perform services in a specialty occupation for a U.S. employer. It currently applies only to nationals of Australia, their spouses and children under the age of 21.  To qualify, you must be Australian.

How to you define Specialty Occupation?

It is an occupation that requires the theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the U.S.  Spouses may seek a work permit on a derivative E-3D visas. Additionally, spouses and children under 21 may attend school.

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