Ainsworth + Clancy helps corporations and investors navigate the various visa options for investors and other key personnel such as managers and executives. There are many visa options for employers/employees and investors that want to live and work in the United States. In general, there are both permanent resident and non-resident options in U.S. immigration for professionals with university diplomas, company executives and managers, investors, and persons with an extraordinary ability. Each visa varies depending on the particular visa requirements. Below is an overview of some of the most common employment and investment visas:
- Non-Resident Options (work visas):
- L-1: The L visa is used to transfer an employee from an affiliated company abroad (parent, affiliate, subsidiary) to work at a company in the United States. Within the L-1 category there is an option for Managers and Executives (L-1A) as well as for non-managers or operational employees (L-1B). The L-1A can be renewed for up to 7 years, while the L-1B has a limit of 5 years.
- E-1/E-2: The E visa is suitable for investors who would like to start a U.S. company to carryout international trade (export or import) or simply to create and manage an ongoing investment in the United States. Unlike the L-1, neither the E-1 nor the E-2 requires an affiliated company abroad. However, only persons from certain countries qualify to apply for an E visa because it is based on a specific type of treaty that the U.S. has with countries around the world. See the approved list of countries here.
- H-1B: Many people with bachelor’s, master’s, and doctorate degrees apply for H-1B visas each year. By law, the number of H-1B visas allowed annually is 85,000. The H-1B visas is a good option for individuals with training and skills but they did not work at an affiliated company abroad, they are not in a position to make a substantial investment required by the E visa, or they simply are not from a country which has an E visa agreement with the United States.
- TN: Some visas are based on treaties; the E visa is one example and the TN visa is another. The North American Free Trade Agreement (NAFTA) created a visa option for Mexicans and Canadians called the TN visa. The TN visa for Mexicans and Canadians is limited to a list of positions which is posted here. Advantages of the TN visa include the expediency of the petition process and a lower overall cost.
- O-1: This category is for extraordinary ability individuals. Many times these individuals are artists or athletes, but the applicant may be a person who can demonstrate extraordinary ability in business, journalism, or some other relevant area of expertise. In general, the applicant will show his or her extraordinary ability by the receipt of awards, published material about the applicant in magazines or newspapers, or other similar evidence that shows that the applicant is recognized in his or her area of expertise.
- Permanent Resident Options (Green Card):
- EB-1-A: This category is for extraordinary ability individuals and basically mirrors the requirements of the O-1 visa but with higher scrutiny.
- EB-1-C: This category of employment-based residency petitions basically mirrors the requirements of the L-1A visa. The employee must have worked at an affiliated company abroad for a full year as a manager or executive, and he or she should be fulfilling a managerial or executive position at the U.S. affiliated company. This petition is typically used to obtain permanent U.S. residency for L-1A visa holders. But it should be noted that both the U.S. and affiliated company abroad are typically developed companies with profitable operations and a strong workforce.
- EB-2/3: The second and third employment based immigrant petitions are for professionals with either a master’s degree or above (EB-2) or a bachelor’s degree (EB-3). Generally, when petitioning in this category the employee cannot control or be related to the company’s owners. In addition, the employer must prove that there are no available US workers who can fill the position which is proven by submitting the job to the market to see whether qualified applicants apply for the position.
- EB-5: The fifth employment-based residency preference provides permanent U.S. residency to international investors who make an investment in a commercial enterprise in the United States. The requirements for the EB-5 petition are an investment of $1,000,000 (or $500,000 if in an area of high unemployment or a rural area) that creates 10 full-time American jobs within two years. An immigrant investor in the EB-5 category does not have to purchase or start a new business, rather, there are options to invest in Limited Partnerships called “Regional Centers” where multiple EB-5 investors invest in projects that create jobs on a large scale. The EB-5 program should not be confused with the E visa describe above, because the E visa does not have such rigid requirements for the U.S. investment and job creation yet provides the investor the opportunity to live and work in the U.S. as long as the investment is ongoing.