P Visa

by admin | Nov 20, 2014 | Visas

VISAS FOR ARTISTS AND ENTERTAINERS

The O-1 category is for individual artists or entertainers with “extraordinary ability” in their field. To show extraordinary ability, a foreign artist must prove to the U.S. Citizenship and Immigration Service (USCIS) that he or she has “distinction” in the field, and is prominent. The standard for those in the motion picture or TV industry is higher. A movie or TV entertainer must show “a very high level of accomplishment” and “a degree of skill and recognition substantially above that ordinarily encountered”.

Foreign artists, especially actors and actresses, may have difficulty qualifying for the O-1 category. For example, an entertainer who had starring roles in TV productions and movies, and had an annual salary of $200,000, was denied O-1 status by the USCIS and lost on appeal as well. In another case, an actor had 12 years experience and had earned $150,000 from a single, made for TV movie, and had a supporting role in a major movie. In spite of these facts, the USCIS found that the actor did not have “extraordinary ability”.

On the other hand, USCIS found that a film star, comedian and musician from Romania did have extraordinary ability. He had received several nationally recognized awards in Romania, and had been critically reviewed by art critics in several countries. He had performed in artistic showcases, including the National Theater of Romania, and presented letters from the top Romanian artistic circles to show that he had performed in a leading and critical role for distinguished organizations.

The USCIS also found that a novelist, singer and composer from China had “extraordinary ability”. She had written a novel which became a classic and was translated into four other languages, and had been the recipient of several national awards in China. She sang at numerous showcases with other well-known singers. Her application was supported by art critics and well-known members of American performing art circles.

The P-1 category is for entertainment groups which are internationally recognized. An entertainment group may be as few as two persons. A group that is nationally recognized for a sustained and substantial period of time may obtain a waiver of the international recognition requirement if there are special circumstances.

The P-2 category is for individuals or groups of artists or entertainers who are part of a reciprocal exchange program in the United States and one or more foreign states. The P-3 category is for entertainment groups which are culturally
unique, which are coming to the U.S. to perform, teach or coach in a program which is culturally unique.

Fashion models of distinguished merit and ability may obtain H-1B visas, by showing that they are renowned, leading or well-known. Fashion models may also qualify under O-1 as extraordinary persons in business but not in the arts.

R Visa

by admin | Nov 20, 2014 | Visas

Foreign nationals coming to the United States only to work in a religious capacity may obtain an R-1 visa, which is for temporary religious workers.

Because of fraud, Immigration agents now visit the religious institiution in every case before a religious worker petition is approved, to make sure the case is genuine.  So, when the Immigration agent comes, smile and be friendly!

Religious workers include ministers of religion who are ordained by a denomination to lead religious worship and perform other duties usually performed by members of the clergy, for example administering the sacraments. The term does not apply to lay preachers. Aside from ministers, religious workers also include those pursuing a calling to religious life with a lifelong commitment. Examples include nuns, monks, and religious brothers and sisters. Additionally, people coming to the United States to work in a religious occupation can also obtain R status. A religious occupation is one which relates to a traditional religious function. Examples include liturgical workers, religious instructors or cantors, catechists, workers in religious hospitals, missionaries, religious translators, or religious broadcasters. It does not include janitors, maintenance workers, clerks, fund raisers, solicitors of donations, or other jobs which could be filled by someone lacking a religious education and training.

In order to obtain an R visa, the applicant must be a member of a religious denomination having an authentic nonprofit religious organization in the U.S. The religious denomination and its affiliate, must be exempt from taxation, or the religious denomination qualifies for tax- exempt status. The applicant must have been a member of the denomination for at least two years. Religious workers may spend up to five years in the United States in R status. If they again wish to obtain R status, they must spend at least one year outside the U.S.

All religious workers must now first obtain an approved R petition before applying at the U.S. Embassy or Consulate for an R visa. There is no requirement that applicants for R visas have a residence abroad which they have no intention of abandoning, but they must intend to leave the United States at the end of their lawful stay.

A temporary religious worker’s spouse and unmarried children under 21 years of age may follow the religious worker to the U.S. They may study but may not accept employment in the United States.

RELIGIOUS LIBERTY AND TOLERATION IS ONE OF THE MOST FUNDAMENTAL PRINCIPLES OF THE UNITED STATES CONSTITUTION
The First Amendment to the U.S. Constitution reads: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”. This expresses two ideas. The first is that the government or the state is not to support a particular religion or church, or any religion. The second is that people are free to believe according to their conscience. This right aims to prevent the government from forcing people either to attend religious services of one religion or not to attend religious services of another religion. Thomas Jefferson, one of the founding fathers of the United States, and one of the architects of the U.S. Constitution and Bill of Rights, declared: “It does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg”

The founders believed that the First Amendment would serve two goals. First, it would prevent civil strife between members of different religions or sects, and the breakdown of society. Second, preventing the government from becoming involved in religion would prevent the corruption of religion. Once the government is involved in religion, religion is used to serve political leaders and state institutions, and is thereby corrupted. The only true religion, they believed, comes from inside a person, from inner reflection, and cannot be coerced by others or by the State.

The U.S. Supreme Court has held that requiring students in public school to recite any kind of prayer in school violates the Establishment Clause. In a 1962 case, Engel v. Vitale, New York State had prepared a “non-denominational prayer” to be used in the public schools. The Supreme Court found this practice to be unconstitutional.

The practice was clearly a “religious activity”, and the Court found that it is not the government’s business to compose official prayers. The Court declared that “when the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain”. Governmentally established religion and religious persecution go hand in hand, reasoned the Court.

While people have the right to observe and practice their religion, they do not have the right to violate general laws which seek to prevent criminal activity. For example, American Indians who use the drug peyote as part of their religion were prohibited from using this drug by a law preventing use of illegal drugs. This did not violate their right to practice their religion, since it was a general law that sought to proscribe criminal activity.

In a New York case, decided by the Federal Court of Appeals in March, 1997, an Egyptian man who kidnapped his children and took them from New York to Egypt was found guilty of the crime of international parental kidnapping. The court rejected his argument that the federal law forbidding parental kidnapping violated his right to exercise his religion, since his motive in returning his children to Egypt was to provide them with a Muslim education. The Court held that the federal law had a neutral purpose, to prevent kidnapping, and was generally applied to everyone, and so did not violate the Free Exercise Clause of the Constitution.

E Visa

by admin | Nov 20, 2014 | Visas

GREENCARD THROUGH INVESTMENT

If you make a large investment in the United States, you may be able to obtain a green card. You can either invest $1 million in a business located anywhere in the U.S., or invest $500,000 in an area of high unemployment or a rural area. With a $500,000 investment in an area of high unemployment, such as the Bronx or Brooklyn in New York State, and by hiring at least ten full-time U.S. workers, you may apply for an investment-based green card.
You must have acquired the capital by lawful means. You must contribute capital in the form of equity or long-term debt financing. If you are acting only as a creditor to the business, you will not qualify for an immigrant visa.

Capital includes cash, cash equivalents, equipment, inventory, other tangible property, and indebtedness secured by assets owned by you (provided that you are directly and personally liable, and the investment enterprise is not used to secure the debt.

U.S. workers include U.S. citizens, lawful permanent residents, and asylees. Hiring workers with temporary visas does not satisfy the requirement of providing at least ten jobs for U.S. workers. For example, if you have nine U.S. citizen employees and one H-1B employee, the requirement is not satisfied.

Additionally, you cannot combine part-time positions to equal a full-time position to fulfill the requirement. Therefore, hiring 20 part-time workers will not satisfy the requirement of providing 10 full-time jobs.

Initially, you and your family will only receive conditional residence. You must re-petition after two years to become a permanent resident. Thus you must maintain your investment in the business for at least two years. You must be involved in the management of the business either through day-to-day managerial control or policy-making.

RECENT CHANGES IN ENTREPRENEUR REQUIREMENTS

Through the alien entrepreneur program, an alien can obtain a greencard by investing $1 million (or $500,000 in an area of high unemployment) in creating a new business, and hiring ten full-time U.S. workers. Prior law required the investor to have “established” the commercial enterprise. The Immigration Service interpreted this requirement very narrowly, stating that the investor must have been present at the inception of the business. INS (now called USCIS) used this requirement to deny many cases, for example, on the grounds that the alien applicant was not the person who signed and filed the business’ incorporation papers filed with the state.
As an alternative to creating an original business, an investor could also qualify if he or she either
1) purchased an existing business and restructured or reorganized the business so that a new commercial enterprise resulted, or
2) the investor expanded an existing business and caused a 40 percent increase in its net worth or employment levels.
The Immigration Service also interpreted these requirements strictly, requiring audited financial statements regarding the company’s former net worth just before the business was purchased. Most investors will not have obtained the audited financial statements of the company they purchased, and so would not be able to meet this requirement.
Because of the difficulty in meeting the requirements, not many have applied for immigration through the immigrant investor program since its inception in 1990, and fewer have actually obtained their greencards through the program. As part of the 21st Century Department of Justice Appropriations Authorization Act, November 2, 2002, Congress eliminated the enterprise establishment requirement for alien entrepreneurs. The amendment allows alien investors to invest in companies that are past the start-up phase and have already established themselves. However, the business should have been established after November 29, 1990.

CHANGE IN ALIEN ENTREPRENEUR REQUIREMENTS

Prior law required the investor to have “established” the commercial enterprise. The Immigration Service interpreted this requirement very narrowly, stating that the investor must have been present at the inception of the business. INS (now called USCIS) used this requirement to deny many cases, for example, on the grounds that the alien applicant was not the person who signed and filed the business’ incorporation papers filed with the state.

As an alternative to creating an original business, an investor could also qualify if he or she either 1) purchased an existing business and restructured or reorganized the business so that a new commercial enterprise resulted, or 2) the investor expanded an existing business and caused a 40 percent increase in its net worth or employment levels. The Immigration Service also interpreted these requirements strictly, requiring audited financial statements regarding the company’s former net worth just before the business was purchased. Most investors will not have obtained the audited financial statements of the company they purchased, and so would not be able to meet this requirement.

Because of the difficulty in meeting the requirements, not many have applied for immigration through the immigrant investor program since its inception in 1990, and fewer have actually obtained their greencards through the program..

As part of the 21st Century Department of Justice Appropriations Authorization Act, November 2, 2002, Congress eliminated the enterprise establishment requirement for alien entrepreneurs. The amendment allows alien investors to invest in companies that are past the start-up phase and have already established themselves. However, the business should have been established after November 29, 1990.

E-2 Treaty Investors and E-1 Treaty Traders

Alternatively, if you have less than $500,000, but still enough money to purchase an existing U.S. business or to start-up a new business in the United States, you may be eligible for a temporary investor’s visa. It can be a small business, such as a grocery store or a gas station. You will have to show that you have committed your money to the business, and the business will be able to support U.S. workers, as well as you and your family. To obtain the temporary visa, there must be a treaty between the United States and your country of citizenship, which provides for the investor’s visas.

How do you qualify as an E-2 treaty investor? First, your country of nationality must have a treaty with the United States providing for treaty investor status. Second, you must be coming to the U.S. solely to develop and direct the operations of the business in which you have invested, or are actively in the process of investing. Additionally, key employees from the treaty country who are essential to the operation of the business may also obtain E-2 status. Third, the business does not have to be a specific type or size to qualify. You may start a business in any field, even with a small amount of capital as long as you are investing the total value of the business. However, the investment may not be a passive investment, such as the purchase of real estate or stocks. Fourth, the business cannot just generate an income for you and your family; you must hire at least one full-time U.S. worker.

Alternatively, a businessperson may obtain E-1 status as a Treaty Trader. In order to qualify, first, there must be a treaty providing for Treaty Trader status between the U.S. and your country of nationality. Second, you must be coming to the U.S. solely to carry on substantial trade which is international in scope principally between the U.S. and your home country. Additionally, key employees from your home country, including executive, supervisors and others who provide essential services for the company, may qualify for E-1 status.

What is trade? Trade includes, but is not limited to, goods, services, international banking, insurance, transportation, communications, data processing advertising, accounting, design and engineering, management consulting, tourism, technology and its transfer, and some news-gathering activities.

What does it mean that the company has to trade principally between the U.S. and your home country? More than 50% of the total volume of your company’s international trade must be between the U.S. and your home country.

What is substantial trade? There must be a continuous flow of international trade, and the application cannot be based upon a single transaction, no matter how high the value. The volume of exchanges is more important that the value of the trade. Income generated from numerous transactions which is enough to support the trader and his or her family is a favorable factor in determining whether substantial trade exists.

A treaty trader or treaty investor can also obtain visas for his or her spouse and children. Additionally, the spouses of E visa-holders may apply for work authorization. E status is temporary, but indefinitely renewable, as long as the business is doing well.

L-1

by admin | Nov 20, 2014 | Visas

L-1 VISAS FOR MANAGERS, EXECUTIVES AND SPECIALIZED KNOWLEDGE WORKERS

Managers, executives and specialized knowledge workers who have been working for at least one year for a company overseas may be able to obtain temporary immigration status in the U.S. as an L-1 if their company transfers them to a branch or subsidiary already existing in the U.S., or if the executive or specialized knowledge worker is coming to the U.S. to establish a branch, subsidiary or affiliate of the parent overseas company.

Either the parent company must have majority stock ownership of the subsidiary in the U.S., or the overseas company and the U.S. company must have the same owners. In some cases where the overseas company has less than majority ownership, one may still qualify if one can show that the overseas company has control over the U.S. company.

The person seeking to come to the U. S. must be working in an executive or managerial capacity, or in a capacity involving specialized knowledge. Moreover, the individual must have worked in the foreign company as a manager, executive or specialized knowledge personnel for at least one year in the past three years.

To be considered a manager or executive, an individual must show that he or she has directed the organization, supervised and controlled the work of other supervisory employees and exercised discretion in day to day management. Alternatively, a manager or executive may manage an essential function of the business rather than manage other employees. For example, an individual can qualify as a manager of a small enterprise if he or she manages the business marketing or sales. It has become much more difficult for foreign businesspersons to obtain L-1A status, especially for those with small companies and few employees.

Specialized knowledge workers include those with special knowledge of the company product and its application in international markets or who have an advanced knowledge of the processes and procedures of the company. He or she must have an advanced level of expertise of the organization’s product, service, research, equipment, techniques, and management, which knowledge is not available in the US labor market. It has become much more difficult to obtain L-1B status, and the employee’s job duties and special knowledge of the company’s products and procedures must be described in detail.

A manager or specialized knowledge worker of a foreign company may enter the United States to set up a branch office or a subsidiary in the U.S. When a new company is being established, an L-1 petition will only be approved for one year. The USCIS will look at whether the parent company is genuine, as well as the employee’s position in that company. At the end of the one year period, the company will have to show that it will be financially successful in order to obtain an extension for its employee. The company must have enough business to support a manager or executive.

The maximum period of time an executive or manager may remain in L-1 status is seven years. The maximum period of time for a specialized knowledge employee is five years.

The US entity can apply for lawful permanent residency on behalf of its executive or manager. However, specialized knowledge employees cannot obtain permanent residency based on their transfer to the U.S. company. In order to obtain a green card based on their position, the U.S. company would have to sponsor them for labor certification.

Additionally, an employee will not be barred from temporary L-1 visa status by the filing of an immigrant visa petition.

Spouses and minor children of L-1 visa holders may enter the United States on L-2 visas. The spouse and children of an executive or manager may obtain permanent residency at the same time as the principal. Additionally, spouses of L visa-holders may now obtain work authorization.

H-1B

by admin | Nov 20, 2014 | Visas

H-1B AND L EMPLOYERS ARE REQUIRED TO COMPLY WITH THE EXPORT CONTROL REGULATIONS

            As of February 20, 2011, the petitioner for an H-1B or L employee must certify the following:

With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that:

␣ A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or

␣ A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data to the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

The petitioner must check one of the above boxes on the H-1B form.  The U.S. Department of Commerce, Bureau of Industry and Security describes a deemed export as the following: 

An export or reexport is “deemed” to take place when technology or source code is released to a foreign national within the United States or abroad. This release is considered to be an export or reexport to that person’s home country. Note that this does not apply to U.S. citizens or certain other individuals such as those who hold green cards. You can release source code or technology to foreign nationals when you make the source code or technology available for visual inspection such as reading technical specifications, plans, or blueprints; when you have a verbal exchange; or when you provide guidance to a foreign national through practice or application.

Certain items are not subject to the EAR, including the following: literary publications such as printed books and newspapers; publicly available technology and software such as information that is published or will be published; information arising during or as the result of fundamental research; and educational information provided in a catalog course and certain patent applications.

In addition, foreign-made items with less the de minimis percentage (less than 10%) of controlled U.S. content is not subject to the EAR.

An organization’s proprietary technology (i.e. trade secrets) falls within the scope of the EAR and may require authorization from BIS before being released to a foreign national.

If you are an H-1B employer, you need an export management and compliance program.  Even if it turns out that you do not need an export license for your H-1B worker, you still need to keep records and show that you have complied with the export control regulations.  In order to comply, your company needs to do the following:

1.  Create an export management and compliance manual;
2.  Register on-line with the SNAP-R at bis.doc.gov;
3. For a particular software or other technology project, apply through SNAP-R for an Export Control Classification Number (ECCN).  The Bureau of Industry and Security (BIS) will respond either stating that the software project is EAR-99 or with the ECCN classification;
4. Even if the technology is classified as EAR-99, you may still need a license depending upon the destination, end user and end use;
5. If the BIS responds with an ECCN classification, then you must check the country lists to see if a license is needed, and if so whether an exception is available;
6. If a license is needed, then all foreign workers coming to the U.S. to work on the project will need an individual license;
7.  Even if a license is not required, the company must keep records for five years to show compliance with the regulations.

H-1B VISAS FOR PROFESSIONALS

H-1B NEWS JANUARY 2010

On December 21, 2009, USCIS reached the regular H-1B cap for Fiscal Year 2010.  Employers wishing to file cap-subject H-1B petitions will now have to wait until April 1, 2010, to file H-1B petitions for the 2011 Fiscal Year, which begins on October 1, 2010.    As in the last several years, because there are only 65,000 H-1B visa numbers plus the 20,000 visa numbers for US masters degree holders. You should start preparing in January for any H-1Bs which should be filed at the end of March 2009 so that they may be received on April 1, 2009, the earliest filing date.  Because of the recession, we do not know if applicants have a greater likelihood of receiving a visa number this year.    USCIS has implemented a new Labor Condition Application system, iCert, which often takes seven days or more to certify LCAs. An additional problem is that the iCert system checks its database for the FEIN number of the petitioning employer.  Because the iCert system lacks many FEIN numbers, Dept of Labor is denying many LCAs because it is unable to verify the FEIN number.  This causes an additional delay, because the employer has to submit evidence of its incorporation and FEIN number, and then once this is verified by DOL, has to file another LCA.  Thus, if you are planning to file an H-1B petition on April 1st, you should being work early, and file the LCA at least a few weeks before the deadline.   A person with a bachelor’s degree or a combination of university-level education and work experience that is equivalent to a bachelor’s degree, may be able to obtain a professional worker’s visa, called an H-1B visa.
If you have been educated outside the United States, your academic credentials must be evaluated to see if they are equal to a four-year University-level education in the United States. If you attend a college or university in your home country, you must make sure that it is an accredited institution.
Aside from qualifying as a professional, the foreign worker must also find an employer to sponsor him or her for a professional-level job. A professional-level job is one which requires a bachelor’s degree or its equivalent. For example, not all computer programmer positions are considered to be professional-level jobs. Also, if a job requires a license, as many jobs in the medical profession do, then one must obtain that license before qualifying for the job.
Foreign medical doctors may obtain H-1B status to work as researchers, teachers, or to perform patient care. Foreign medical graduates seeking internships and residencies may obtain H-1B status as long as they have a license both in the foreign country and in the state in the U.S. where they intend to practice, and have taken the U.S. Medical Licensing Examination (USMLE).
Registered nurses are not generally considered to be eligible for H-1B status, unless the position requires at least a bachelor’s degree.
Fashion models of “distinguished merit and ability” may also obtain H-1B status. Fashion models must show that they are well known either nationally or internationally to obtain an H-1B visa.
Foreign professionals may obtain an H-1B visa for either a full-time job or a part-time job. One may also obtain an H-1B visa for two part-time jobs as long as one gets approval from the USCIS. Anytime an H-1B worker changes jobs, he or she must notify USCIS and obtain their approval to transfer H-1B status to the new employer. Now, with the portability provision, a worker who is already in H-1B status with one employer may begin working for a new employer upon the filing of a new H-1B petition. There is a legal limit on the time one can spend in H-1B status of six years. The six-year limit may be extended if the foreign worker has a pending Form I-140, and his or her labor certification or I-140 has been pending for more than 365 days. Extension of stay beyond the six-year limit is also possible for foreign nationals who cannot file for adjustment because their priority date is not current, due to the per-country limits.
U.S. Employers may petition for foreign workers outside the U.S. by obtaining approval of an H-1B petition from USCIS, and by then contacting the U.S. consulate in the foreign country for processing of the H-1B visa.
Professionals who are citizens of Canada may obtain a TN visa under the North American Free Trade Agreement (NAFTA). NAFTA has a list of professions for which a person may qualify for a TN visa. For example, accountants, engineers, registered nurses, architects, lawyers, university-level teachers and research assistants, hotel managers, librarians, systems analysts, and management consultants all qualify for TN visas.