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Immigration and Visa

Immigration and Visa

United States immigration law distinguishes between "nonimmigrant" visas (i.e. visas intended for temporary immigration) and "immigrant" visas (i.e. permanent visas). Most "nonimmigrant" visas are renewable if the conditions that allowed them to obtain them in the first place still persist, which leads in fact to the possibility of residing in the United States for an unlimited period of time; however, "Immigrant" visas are established as permanent and are intended for people wishing to move permanently to the United States, the so-called green cards. Most of the visas that are referred to as "moving" to the USA, they are really considered non-immigrants (for example, E visas, B visas, O Visa). We strongly recommend reading the explanations below in order to get a better understand on types of visas or green card classifications.

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Non-immigrant visa

Among the most used nonimmigrant visas, the following are worthy of attention:

The "B" visa is a nonimmigrant visa with extremely low costs, for those who wish to enter for a temporary stay in the United States that does not exceed 6 months, for work reasons (B-1) or for private purposes (B-2).

It should be noted that an european citizen can still travel to the United States for a period not exceeding 90 days through the ESTA program. However, while visa B represents a real visa that must be requested and obtained before departure, the ESTA program is an automated system that allows you to verify whether travelers planning to travel to the United States meet the necessary requirements to obtain a visa.

To obtain the B1/B2 visa, it is essential to prove that the applicant does not wish to stay in the United States once the period allowed by this visa has ended (even the round trip ticket may be sufficient), as well as having strong ties with the country of origin, (monthly services or other recurring obligations in the country of origin, family certificates of subjects present in the country of origin, etc.), and that the necessary funds are available for self-maintainance during the stay in the United States (a statement showing sufficient funds may also be sufficient).

B-1 Business Visa:

The B-1 visa allows to travel to the United States for a period of six months for business reasons, in order to conclude contracts, establish business and customer contacts, attend conferences and also, with important limitations, provide activity of independent work. This visa is also often used to start a new business or to verify its sustainability.

B-2 Tourist Visa:

A B-2 visitor visa allows the applicant to remain in the United States for a maximum duration of 6 months. This visa is useful in situations where the applicant wishes to visit family members or travel for extended periods of time within the United States. Another important function of the B-2 visa is to accompany another individual who has received a different nonimmigrant visa, due to the absence of a family relationship.

Nonimmigrant visas allow the beneficiary to transfer their immigration status to their spouse and children under 21, if unmarried, substantially extending their visa to them. However, if you do not belong to one of these family categories, you can apply for a B-1/B-2 visa. This is very convenient in cases of cohabitation. The cohabiter is not considered a spouse and therefore cannot apply for admission to the U.S. based on the non-immigrant visa received by the partner. Nonetheless, the B-1/B-2 visa expressly allows one to accompany another non-immigrant with whom a stable relationship is maintained (in technical terms, "non-spouse", such as an unmarried couple).

E visas are among the most widespread since they are intended for a large group of people, companies and their employees, from merchants and businessmen to professionals and artists. There are different requirements that must be met and taken into account to request such visas. Legal advice therefore becomes fundamental, not only strictly for the field of immigration, but also for the formation of companies and contracts which are the baqsis of the visa application, in order to have a complete set of documents and evidence required by the Immigration Departmentment (“USCIS”). In fact, often applicants wait until the very end before applying for this visa, concentrating their initial efforts only on the start-up phase of the company. This results in a series of difficulties when applying for a visa, where there are often basic requirements or documents missing, precisely because of an incorrect initial configuration.

Commercial Visa E-1:

The E-1 visa (“Treaty Traders") is the visa intended for those who frequently maintain commercial activities or services with the United States; such frequent exchanges must be documented correctly and must comply with precise proportions in order to obtain the visa. This visa is often used by merchants and import and export companies, but it can also be extended to companies providing services; it can also be requested by professionals or other people engaged in different types of activities, such as architects, artists and craftsmen. The E-1 visa is issued for a maximum of 5 years and can be extended afterwards for other periods of 5 years of stay, as long as all basic requirements persist.

Treaty Investors Visa E-2:

There are several countries that are eligibile for an E-2 visa. The E-2 visa is intended for those who wish to invest a sum of money in the United States in order to start a business, or to take over a business already in operation. The Immigration Office of Attorney Sonia Oliveri can not only provide legal advice for this visa application, but also get in touch with possible contacts and companies in order to acquire an existing business, or a franchise.

The investment required for an E-2 Visa is variable. It is often wrongly stated that an investment of around one hundred thousand dollars is required to obtain an E-2 visa; this preconception not only lacks of legal foundation, but is often far from practical reality. Relevant laws do not dictate any type of threshold, on the contrary, they dictate a principle of proportionality. The investment is considered acceptable or not according to the type of activities carried out. For activities with low start-up costs, an investment that covers almost all initial costs will be required; on the other hand, for investments with high start-up costs, an investment that only covers part of the initial costs can be considered sufficient. Therefore, even an investment of only twenty thousand dollars can be enough to obtain an E-2 visa, if the type of business activity does not require, by its nature, substantial initial cost and such has been incurred in its entirety. Think of a Law Firm for example. An investment of a few thousand dollars to cover only the first months for rental of the premises and for necessary technical equipment (computers, telephone, etc.) can be considered sufficient. Likewise, an investment of one hundred thousand dollars may not be sufficient if the business activities to be carried out require a substantial initial economic expense. One hundred thousand dollars is probably not considered sufficient, for example, in case of opening a new hotel or a new transport company, since it would represent a very small investment in proportion to the start-up costs necessary.

The investment is not the only requirement for an E-2 visa. It is also necessary that the investment be made by a citizen of a treaty country or by a company controlled by a citizen of a treaty country (or another country where it is possible to apply for an E-2 visa). With regards to the control requirement, often time it is stated that the individual requesting the E-2 visa must possess at least 50.1% of the shares of the company. This does not correspond to the truth in cases where the company is managed by one or more managers, rather than directly by its members; in fact, the requirement that the applicant manages the E-2 visa can also be demonstrated through his position as a manager, as well as that of a member. It is also possible to demonstrate management through negative control; in fact, if the company has only two members and each owns 50% of the shares, each member counts with the same power to make decisions, and is able to immobilize the other by simply voting on the contrary to each other. This situation is defined as "negative control" and is considered sufficient to obtain the E-2 visa for each investors.

Other requirements for the E-2 visa are: that the investment arises from the country of origin (Spain, Colombia, Italy, etc.), that it has already been carried out partially (and not only planned); that the company has already opened or is about to open; that the business activity allows to obtain a substantial profit, not only to guarantee the mere existence of those who manage it. In conclusion, it is also possible to immobilize the amount to invest, conditioning it to visa approval. The E-2 visa has a maximum initial duration of 5 years, but is renewable continuously, as long as the commercial activity persists.

 

Nationals employed by the E-1 or E-2 visa holders:

Each individual holder of an E-1 or E-2 visa can hire one or more individuals of the same nationality to work as managers or specialized employees in their own company, sponsoring them for a visa as employees.

Although the legal definition of manager and specialized employee is the same used for L visas (see the page dedicated to the L visa for more information), in the case of E visas, this definition is interpreted more broadly, which allows framing various types of workers such as managers or specialists. Even a very young individual with low qualifications may be able to obtain a visa as a manager, as long as it is possible to demonstrate that once he has obtained the E visa, he will be holding some directive functions. Similarly, an individual who can fulfill specific functions, even if not particularly specialized, can be considered a specialist; for example, a generic cook, without any particular specializations. Therefore, in the case of E visas for employees, any professional certificate, training and experience, is certainly useful, but do not play a crucial or essential role such as in the case of L visas (see the section on L visas to understand the difference). The E-1 or E-2 specialized employee visa has a maximum initial duration of 5 years, continuously renewable, so long as the commercial activity persists and as long as the employee continues to work.

 

Family Members of E-1/E-2 Visa Holders (Principal and Employees):

Spouse and unmarried children under the age of 21 can accompany in the United States the E-1/E-2 visa holder. Additionally, while children can only obtain a visa to travel ans reside in the U.S., the spouse has the right to apply for a work permit (so-called EAD) with which they can perform any type of employment (unlike the E visa holder who can only perform work activity within the treaty enterprise).

F-1 Visa for students and M Visa for vocational training:

The F-1 visa is for students who wish to study in the United States. It is necessary to obtain authorization from the respective educational institution before being able to apply for an F-1 visa. After acceptance into the program, the applicant will receive the required documentation from the educational institute in order to proceed with the visa application.

Although a B visa may be sufficient for short and purely incidental trips, the F-1 visa is not only necessary when the main purpose of the trip is to attend a school, but often also provides greater guarantees or future opportunities. For example, within the duration of the F-1 visa, it is possible to apply for OPT status (Optional Practice Training), which allows to work full-time, for a period of one year, upon degree completion. Conversely, it is not possible to request an OPT on or after a B visa. Regardless of the OPT, while on F-1 visa, it is possible to work on campus for up to 20 hours per week, which is not allowed under B visa.

An M visa has a similar functionality to the F-1 visa, but is dedicated to non-academic training, for example in the field of cooking or art.

F-2Visas for Student’s Family Members:

The spouse of the F-1 visa student, as well as the unmarred children under 21 years old, can enter in the U.S. with an F-2 visa. An F-2 visa does not allow to work or study, but only to accompany the F-1 visa holder. To obtain an F-2 visa, one must show that has sufficient financial resources to cover basic life needs while in the U.S. during the period of stay.

H-1B Visa:

The H-1B visa is intended for workers with advanced degrees (university degree or higher) desiring to work in the field of application of their course of study. For this visa it is necessary to find a U.S. employer willing to sponsor the applicant. Some examples of common position fields for H-1B visa are: computer science, architecture, engineering, mathematics, research, social sciences, biotechnology, medicine, education, law, accounting, economics, theology, art, IT, finance, banking, marketing and telecommunications.

This visa has the advantage of being evaluated by USCIS in only 15 days (with payment of an additional cost for premium processing). However, it is important to note that the decision on the visa application does not imply its immediate issuance, as more steps being necessary before the visa can be stamped in the passport. The H-1B visa is issued for a period of three years, renewable for other three years. Once the total period of six years has elapsed, it will be possible to extend the stay even longer, only in the presence of specific circumstances.

Family Members of H-1B Visa holders:

Spouses and children under the age of 21, if unmarried, can apply for an H-4 visa to accompany the H-1B visa holder.

J-1 Visa:

The J-1 visa is a cultural exchange visa, which is used to performe certain fixed-term work or internships. The fields in which work can be provided can be the most diverse. We have witnessed the approval of J-1 visas for waiters, teachers, ice cream makers, architects, etc. However, to obtain a J-1 visa, there must be a company willing to sponsor the worker. The Immigration Office of Attorney Sonia Oliveri can facilitate contact with these companies.

 

Family Members of the J-1 Visa holder:

Spouses and unmarried children under the age of 21 can accompany the J-1 visa holder to the United States. The J-2 visa holder can also apply for an EAD (Employment Authorization Document) to be able to work during his stay in the United States.

K-1 Visa or Visas for Fiancé(e)s of U.S. Citizens:

A K-1 visa is intended for spouses of U.S. citizens who wish to enter the United States to proceed with marriage.

The fiancé(e) will be entitled to the K-1 visa if:

1. Intends to marry a citizen of the United States;

2. Both parties are free to marry (for example, neither party is currently married);

3. Marriage takes place within 90 days from the date of entry in the United States.

Although it is possible to enter the United States with a tourist visa and then, as a result of marriage, request a green card, this practice should be discouraged. In fact, an individual entering the U.S. with a tourist visa, is declaring that does not want to permanently reside in the United States. Therefore, using a tourist visa when in fact the applicant has the intention to marry and immigrate permanently, corresponds to a false oath and can have serious consequences.

 

K-3 Visa:

The K-3 visa is intended for spouses of U.S. citizens who are currently residing abroad and wish to enter the United States while the application for family reunification is being approved. Upon approval, the K-3 visa holder can request an Adjustment of Status to obtain a green card. To obtain the K-3 visa, one must pass a series of medical examinations and prove that the U.S. citizen can financially support the applicant.

L-1 Visa:

The L-1 Visa allows personnel to be transferred within the same company, from an office overseas to a branch, subordinate or affiliate in the United States. This is possible if the company already exist in the U.S. or if the same is to be created.  However, it is essential that during the three years prior to the visa application, the employee to be transferred has worked continuously for at least one year for the company in an office outside the U.S. and has held executive, managerial or highly specialized functions.

While this visa may be an obvious option for large companies, less structured companies can still achieve it; for example, to show that the employee to be transferred has held managerial duties, it will be sufficient to demonstrate that he had two levels of control (i.e. that the employee controls someone, who in turn controls another subordinate), even if formed by one or two individuals each, or even a single level of control is sufficient, if the managerial action is provided to individuals through professional training (architects, engineers, etc.)

With regards to the qualified worker, the criteria may be more stringent and it will be necessary to present evidence of a real specialization in a specific technique in the field of work. Therefore, you will find of fundamental importance the presence of professional certifications, attestations, training courses, masters and other similar certificates.

The L visa has the advantage to often lead to obtaining a green card through the fastest procedure, the EB-1 classification. In addition, it is possible to request a response for the L visa application within 15 days, by paying an additional fee for premium processing.

 

L-2 Visa for Family Members of the L-1 Visa Holder:

Spouses and children under the age of 21 can accompany the worker in the United States, with an L-2 visa. The L-2 visa allows them to travel and reside in the United States. The L-2 visa holder can also work in any field and in any modality once the EAD (Employment Authorization Document) is obtained.

Similarly to the E visas, in the L visas, the legal activity of consulting and establishing the foundation of the corporative and immigration basis is essential. In fact, if the company's documentation, transfer of funds and other important preliminary steps are not carried out correctly, the applicant will risk having the visa application denied.

O-1 Visa:

The O-1 visa is intended for foreigners with extraordinary abilities demonstrated in science, technology, education, sports, business, art or music. The categories described are quite extensive. As a result, it is possible to apply for an O-1 visa if the applicant works in the fields of cooking, fashion, music, sports, science, and even professionals.

It is considered that such extraordinary abilities exist if the applicant can provide evidence in at least three of the following categories:

• Have obtained a national or international award, attesting to the excellence achieved in own field;

• Be member of an association for individuals who have achieved considerable success, as judged by national or international experts;

• Being able to demonstrate that own work has been the subject of articles in specialized publications or of considerable circulation;

• Being a judge, individually or as part of a jury, of the work of other individuals who work in a similar professional field;

• Have provided an original contribution of great importance in the field of science, education or business;

• Have written academic articles in professional publications or in publications of considerable circulation;

• Having performed in a crucial role in prestigious organizations;

• Having received or currently receiving a high salary (or other form of compensation) compared to others at the same level in similar or same industry.

NOTE: If these categories do not apply to a specific profession, due to the particular nature of it, it is possible to attach comparable evidence to establish eligibility for the O-1 visa. In conclusion, although not explicitly included in the previous categories, other criteria can be considered for purposes of an O-1 visa, such as: having held a decisive role in prestigious representations or events; having achieved a success witnessed by the public (by sales numbers) or by critics; letters of reference prepared by prestigious individuals in your field.

Once the applicant has demonstrated his extraordinary abilities, will also have to show that he/she already has a schedule of commitments or a real job offer in the United States; to this end, even with important limitations, it is also possible to create the company to work independently.

The O-1 visa has the additional advantage of potentially leading to a Green Card through the EB-1 category and, subsequently, to the U.S. citizenship.

Applicant's Staff: O-2 Visa:

The essential personnel of the O-1 visa applicant can request an O-2 visa. It is important to note that this visa is not available in certain categories, such as science, business or education. In addition, "essential personnel" means personnel without whom the O-1 visa applicant could not perform their own work functions, of which the staff must be an integral part.

Family Members of the O-1 Visa Holder: O-3 Visa

Spouse or children under 21 years of age of both the O-1 visa applicant and the O-2 visa applicant can obtain an O-3 visa. It should be noted that the O-3 visa does not allow work in the United States, but only to reside in the U.S. for the same period of time granted to the O-1 or O-2 visa holder.

P-1 Visa:

The P-1 visa is intended for internationally recognized athletes.

The athlete must travel to U.S. in order to participate in an individual or in a team event in the discipline in which he gained international fame. This event or series of events must already be scheduled, or at least be planned, at the time of the visa application and can not be scheduled after entrance in the United States. The spouse and children of the P-1 visa holder can accompany the applicant by obtaining a P-4 visa.

 

P-2 and P-3 Visas:

These categories of visas are intended for artists or other entertainment personnel who will perform as part of an exchange program (P-2); or for artists who will perform as part of a culturally unique program (P-3).

 

Permits and Green Card

Individuals who intend to reside indefinitely in the United States and work freely in any field, must obtain a "Permanent Resident Card of the United States" commonly known as "Green Card".

A green card can be obtained through different classification categories that reflect the interest that the United States has to accommodate the applicant; this means that the higher categories will require important professional profiles, but it will also facilitate the process of the foreign individual to enter the United States.

The EB-1 classification has the advantage of leading to a green card without the need for a sponsor.

This visa is for:

1. Individuals with extraordinary abilities;

2. Multinational Executives;

3. Outstanding University Professors and Exceptional Researchers.

 

1 - Individuals with Extraordinary Abilities:

Any field of application can be included in this category.

To obtain a green card under this category, it will be necessary to demonstrate to have obtained an award of absolute level in a field, or to demonstrate extraordinary abilities in other ways.

Therefore, the award of absolute level is sufficient itself. However, if such award is missing, it will still be possible to demonstrate extraordinary abilities by presenting alternative evidence, substantially identical to those required for the O-1 visa. In this case, however, the evaluation criteria will be more stringent than the ones used in the O-1 visa, and to obtain a green card it will be necessary to produce particularly convincing evidence.

2 - Multinational Executives:

The EB-1 classification also applies to managers or executives to be transferred within the same company, from an office abroad, to a branch, subsidiary or affiliate in the United States. However, it is essential that during the three years prior to the visa application, the applicant has worked continuously for at least one year for the company abroad and has held executive or managerial functions.

The similarity of the EB-1 classification for multinational managers with the L visa is evident. The main practical difference is that, for purposes of EB-1, the U.S. office must already be substantially operative, and not in a start-up phase (which is possible under the L visa). Obviously, there is also a basic difference in the approach between the two visas, since the L visa is a nonimmigrant visa, and the EB-1 classification allows obtaining a green card for permanent residents.

NOTE: it is often stated that the L visa is a necessary requirement prior to apply for a green card through the EB-1 classification as a Multinational Manager. This statement does not correspond to the truth. Although the chances of obtaining an EB-1 are higher where an L visa has already been renewed, it is possible to request directly a green card through the EB-1 procedure. The two (2) visas are independent.

3 – Outstanding University Professors:

The EB-1 classification for university professors requires at least three years of experience in teaching or researching in a particular academic field, along with proof of a formal international recognition for exceptional achievements in the same field. Unlike other EB-1 categories, this classification requires a full-time job offer from a higher education institution in the United States.

Family Members of the Applicant:

Spouse and unmarried children under 21, can apply for permanent residence by using the applicant’s petition. Obviously, once the green card is obtained, it will be possible, after the appropriate period of time, to apply for US citizenship.

EB-2 is a visa to obtain residence in the U.S. for professionals with an advanced or doctorate degree and for individuals with exceptional skills, superior than those normally present in their field. To note how the U.S. Immigration Department considers exceptional skills as a concept that is legally different from the extraordinary capabilities of EB-1. It is possible to include different types of workers in this category, such as architects, doctors, engineers, lawyers and teachers working in primary, secondary, high school or university.

There are three different EB-2 visa categories:

EB2-A: for professionals in possession of a master's degree or other higher education obtained in the United States, as long as they have already received a job offer from a company in the United States;

EB2-B: for individuals with exceptional skills in science, business or art, as long as they have already received a job offer from a company in the United States;

EB2-C o EB2-NIW: for individuals with exceptional abilities, it can be demonstrated that their activity will be of great benefit to the relevant interests for the United States. In this case, the applicants will not necessarily have received a job offer from a U.S. company. This procedure is called "National Interest Waiver".

The EB2 category has much longer timelines and a more complex structure compared to the EB-1. However, it is faster than the EB-3 procedure.

Both the EB-3 category and the EB-2 require completion of the labor certification process (c.d. PERM) that will certify that there is no resident of the United States with the necessary qualifications for the job for which the green card is required.

The structure of EB2 and EB3 is substantially similar, with different timelines for approval.

Both EB categories include the following phases. Each phase can only start after the previous one has been successful:

1. Request to the United States Department of Labor to issue the prevailing wage (minimum salary level) for the position for which a work visa is requested;

2. Complex phase of advertisements and evaluation of the credentials/resumes (if received) by individuals other than the applicant;

3. Petition for the foreign worker;

4. Green Card application.

The EB-2 procedure is extremely complex and can be denied even due to typing or calculation errors. It is a process that must be established properly from the very first stages or the chances of obtaining the green card will drastically decrease.

 

Family Members of the Applicant:

Spouse and unmarried children under 21, can apply for permanent residence by using the applicant’s petition. Obviously, once the green card is obtained, it will be possible, after the appropriate period, to apply for U.S. citizenship.

EB-3 classification represents another permanent visa category for those individual who do not have a sufficiently structured academic profile to apply for an EB-1 or EB-2 visa. In fact, the requirements for an EB-3 are less strict and allow almost any type of worker to be included in this category. However, waiting times are longer compared to the other EB categories.

The process is the same as for the EB-2 classification. Therefore, please refer to the EB-2 category section for more information.

 

Family Members of the Applicant:

Spouse and unmarried children under 21, can apply for permanent residence by using the applicant’s petition. Obviously, once the green card is obtained, it will be possible, after the appropriate period, to apply for US citizenship.

This classification is intended for workers who wish to reside permanently in the United States to work in particular fields, such as religious, consular, medical, military, etc. There is a limit of ten thousand visas per year for this category, but it is generally never reached. For this category, a labor certification (PERM) is not required.

The EB-5 visa is for entrepreneurs and investors who wish to invest at least five hundred thousand dollars, or one million dollars in a business that will create at least 10 full-time jobs for U.S. residents. The amount of investment required depends on the geographical area in which the jobs will be created. It is also very important to note that the investment can also be a passive one. Particularly, instead of creating a business from scratch, it is possible to invest five hundred thousand dollars in a specific project already started and certified for the EB-5 program. Such projects are created and sponsored by Regional Centers. These passive investments, however, will generate a profit through the interest that is recognized by the EB-5 project in which the capital investment is disbursed.

Family Members of the Applicant:

Spouse and unmarried children under 21, can apply for permanent residence by using the applicant’s petition. Obviously, once the green card is obtained, it will be possible, after the appropriate period, to apply for U.S. citizenship.