You may consider a combination of temporary and permanent visa categories. If, for example, you want to live and work in the U.S. for only several years or sample life in the U.S. before making a permanent commitment, consider the variety of temporary visas. Sometimes, these visas are useful to allow you to enter the U.S. to begin living and working here quickly while going through the lengthier process to obtain permanent status.
Temporary Employment-Based Immigration
H-1 (B) Temporary Professional Worker
This visa allows professional employment in the U.S. for at least six years.
- The applicant must hold a Bachelor's degree or its equivalent in a field related to the position. Applicants with some educational background and additional work experience may be able to satisfy this requirement by showing that the combination of education and experience is equivalent to a U.S. Bachelor's degree. Applicants must obtain a credential evaluation for education received abroad or for education/work experience combinations. Frazier, Soloway & Kennedy, P.C. uses the services of reliable credential evaluation firms.
- The employer must be willing to pay the prevailing wage for the position offered and must be able to document that the company is financially able to pay the offered salary. Frazier, Soloway & Kennedy, P.C. performs wage surveys prior to all applications and, if you are unsure about the salary offered, we can perform a wage survey prior to initiating a case.
- Documents required: resume of applicant; description of job duties and terms of employment; copies of all educational documentation such as diplomas, certificates, and transcripts; letter of reference, if needed to prove equivalency; and documentation about the employer.
L-1 Intra-Company Transferee
These visas allow a multinational company with an office in the U.S. or wanting to establish a new office in the U.S. to transfer to the U.S. an executive, manager or person with specialized knowledge of the company.
- The applicant must have been employed abroad by the employer for at least one year of the last three in a management or executive capacity or in a position requiring specialized knowledge of the employer's operations or products. Also, the applicant must be coming to the U.S. to continue performing managerial or executive duties or in a position requiring the applicant’s specialized knowledge of the company.
- The employer must have a business location in the U.S. or be sending the applicant to the U.S. to open such an office.
- Documents required: resume of applicant; detailed letter from employer; evidence of the U.S. office location and the office abroad; and financial documentation of the company.
E-1/E-2 Treaty Trader/Investor
This visa allows an individual to come to the U.S. to manage a substantial investment in a commercial enterprise in the U.S. or to conduct substantial trade between the U.S. and the home country. The visa may be renewed indefinitely while the business is active.
- Investors must hold citizenship in a country that has a treaty of trade with the U.S.
- Investors must be actively investing a substantial sum of money in a commercial enterprise (no limit on type of enterprise). Creating jobs for U.S. workers is a positive factor. Passive investments such as holding undeveloped real estate will not qualify nor will personal investments such as a residence.
- The investor must own a controlling interest in the business and be its manager. There must be employees to conduct the routine, non-managerial tasks.
- The investment must not be solely to earn a living. The investor must have significant other assets or income, even if not enough to support the investor completely.
- The required dollar amount to be invested varies substantially according to circumstances such as the type of business being purchased. Generally, however, qualifying may be difficult (though not impossible) with amounts less than $200,000.
- Traders must conduct substantial commerce between both countries. At least 50% of the trade must be between the home country and the U.S.
- The trade must be substantial and regular. Dollar amounts may vary widely. Frequent and/or regular shipments must be documented.
- The subject of the trade may be goods, services or technology.
- Documents required: vary widely by project, and must be discussed and determined on an individual basis.
Permanent Employment-Based Immigration
Once you have sampled life in the U.S. on a temporary basis and want to remain indefinitely, it is time to examine the ways of obtaining an immigrant visa, commonly called the Green Card.
Labor Certification (PERM) and Immigrant Visa
This two-part process of obtaining Permanent Residence in the U.S. requires a job offer from a U.S. employer. The employer must advertise the position and determine that it could not locate a U.S. worker with the qualifications required. This visa is for positions of all kinds, both professional and skilled, and processing times are quick. Of course, obtaining Labor Certification (PERM) for more specialized work is easier.
The Immigrant Visa can be processed while the applicant is in the U.S. on a temporary work visa or waiting abroad. Processing times and waiting lists vary.
Documents required: a detailed description of the job offer; resume of the applicant; proof that the applicant can meet any special requirements (usually educational certificates and letters of reference from past employers); and proof that the business has the financial ability to pay the salary offered, which must be a fair and usual salary for the position.
Categories Not Requiring Labor Certification
Employment-Based First Preference
Outstanding Professors and Researchers with tenure-track job offers at a U.S. college, university, research organization or company, and at least three years teaching or research experience, part of which may have been while pursuing a graduate degree.
Aliens of Extraordinary Ability who have reached the top of their field and can demonstrate an international reputation of extraordinary ability. Any field of endeavor is possible; the key is that applicants are widely recognized by their peers as among the top performers. While applicants are not required to have a job offer from a U.S. employer, they must show how they will use their skills once in the U.S.
Intra-Company Transferees have requirements identical to the L-1 visa with the additional requirement that the U.S. office must have been doing business for at least one year. If it is a new U.S. office, the one-year may accrue while the applicant is on an L-1 visa.
Employment-Based Second Preference/National Interest Waiver
This useful and broad visa category is widely used by scientists and researchers; however, individuals of strong achievement and good reputation among their peers may qualify in a variety of fields. Aliens must either hold an advanced degree (Masters or Doctorate) or show exceptional ability in their fields. And while aliens can self-sponsor, they must show how their work will serve the national interest, usually through specific employment or business plans. Such work is defined broadly with emphasis on endeavors that will improve the health, education, environment or housing of U.S. Citizens or that will create jobs, stimulate the economy or revive troubled businesses.
Immigrant Investors. This visa is most useful for large investors who want to invest $1 million in a new commercial enterprise that will employ ten or more U.S. workers. Some exceptions allow a $500,000 investment in rural or economically depressed areas. Special circumstances allow investing in a troubled business.
Religious Workers. A variety of this kind of visa (temporary and permanent) is for Ministers of Religion and Religious Workers. Applicants must serve in a similar capacity in a denomination in which they have been members and/or have worked abroad at least two years. Circumstances determine the specific requirements for visas of this kind and Frazier, Soloway & Kennedy, P.C. can discuss them with you in detail.
Suggestions for Pending Graduates
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) implemented several provisions that severely penalize persons who are unlawfully in the United States. Therefore, students who will graduate soon must plan ahead to avoid violating their status. While each case is different and must be analyzed separately, the following suggestions may help in designing an immigration strategy.
- Apply early for practical training. Due to delays at the U.S. Citizenship and Immigration Services (USCIS), consult your foreign student advisor well in advance of graduation to ensure that your application for practical training will be filed on time.
- Apply for H-1B status quickly. To avoid any lapse in employment authorization, file the H-1B application as soon as you obtain permanent employment. To avoid violating status, the USCIS must receive the H-1B application prior to the expiration of practical training. However, to avoid a lapse in employment authorization, the H-1B application must be approved prior to the expiration of practical training.
- Lock in the earliest possible priority date. Begin the labor certification process or other immigrant visa process once the H-1 is secure.
- Avoid violating status. Following this suggestion is critical. People who violate their status are ineligible for Change of Status to another non-immigrant visa category and must apply for visas from outside the U.S. (either in their country or at a third country consular post, depending on their circumstances). More important, people who are unlawfully present in the U.S. for 180 days or more after April 1, 1997, and who then leave the U.S. are subject to the three-year bar to admissibility. People who are unlawfully present in the U.S. for more than one year after April 1, 1997, and who then leave the U.S. are subject to the ten-year bar to admissibility.
Note that while the regulations for IIRAIRA have not yet been issued, the USCIS has indicated that it will start counting the period of unlawful status on the date of expiration of the I-94 Card (stapled to a passport on entry to the U.S.), even in cases of a previous violation of status (such as unlawful employment). For students with F-1 non-immigrant visas with D/S (duration of status) entered on their I-94 Card, this means that unlawful presence triggering the 3-year or 10-year bar does not begin until the USCIS has determined that the student is out of status. Still, such a violation will prevent a Change of Status.