IMMIGRATION LAWSÓN IN THE US: Employment-Based Immigration Options
Business visits to the US for 90 days or less: No visa required for those from certain countries.
• The Visa Waiver Program (VWP) allows citizens of certain countries to apply for admission to the United States for 90 days or less, as a nonimmigrant visitor, for business or pleasure, without having to obtain a nonimmigrant visa first.
• The main advantage of using the Visa Waiver Program is that tourists and people who wish to do business in the United States can travel to that country spontaneously without obtaining a visa, unless for other reasons they are inadmissible.
• Main disadvantages of using the Visa Waiver Program:
You cannot change or extend your nonimmigrant status. If you are denied admission, you have no right to administrative or judicial review, except in very limited situations. Also, if you are found to have violated the terms of your admission, you also lose the right to challenge a deportation order.
• The participating countries are: Germany, Andorra, Australia, Austria, Belgium, Brunei, South Korea, Denmark, Slovakia, Slovenia, Spain, Estonia, Finland, France, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Norway, New Zealand, the Netherlands, Portugal, the United Kingdom (British citizens), the Czech Republic, San Marino, Singapore, Sweden, and Switzerland.
Permitted Activities for Business Visitors to the US
• B-1 Visa (Business Visitor): This visa status allows foreign business visitors to enter the United States to engage in business activities other than paid employment.
• Examples: exchanging views with colleagues, attending meetings, attending seminars, signing contracts, providing some after-sales service, litigation (eg, testifying in court or giving an affidavit), initial work to set up an office in the US. (eg, find office space).
• These are also the types of business activities allowed when using the Visa Waiver Program as a business visitor.
CURRENT EMPLOYMENT-BASED NON-IMMIGRANT VISAS (TEMPORARY)
• L-1 Visa (multinational transfers) – designed to facilitate the needs of transfers within multinational companies. However, smaller companies, and even companies just starting out, can also take advantage of the L visa. L-1 visas are available to those who come to the US to work for a company that has offices in the US. .and outside the US, where a foreign national has worked for the company full-time abroad for at least one of the previous three years in the capacity of:
-an owner, executive or manager (L-1A) or
-an employee with specialized knowledge (L-1B).
• A US company and a foreign company may be related as a parent-subsidiary; affiliates or branch.
• There is a limit of one stay of seven years for owners, officers and managers (L-1A); five-year stay for employees with specialized knowledge (L-1B).
• Dependent spouses (L-2) can receive work authorizations and attend school. Dependent children (under 21) can attend school.
• The benefits of the L-1A visa: You can apply for permanent residence without going through the Labor Certification process.
• E-1 and E-2 visas (investors and treaty participants) — These visas allow citizens of certain "treaty" countries (including Spain) to start and operate/direct businesses in the US. Key/essential employees in executive, managerial or technical/highly specialized positions must also be employed under E visa status if they have the same nationality as the company that employs them.
• At least 50% of the owners of the US treaty company must be nationals of the treaty country, and the people who control the company cannot be US permanent residents.
• Unlike most other visa categories, investors and treaty participants apply directly to a US consulate or embassy and do not need prior approval from US Citizenship and Immigration Services. USA (US Citizenship and Immigration Services). If the person is already in the United States (unless under the Visa Waiver Program), they can request a change of status to category E.
• E visas cannot be initially issued for more than five years, but can be continuously renewed without limitation of stay in E status in two-year increments.
• Dependent spouses can receive work authorizations and attend school. Dependent children (under 21) can attend school.
• H-1B Visa (Professionals) – Available to people who are in “specialty occupations” with a college degree, or with sufficient experience comparable to a college degree (generally 3 years of experience for each year of graduate study). The position offered must be a “specialty occupation” which means that at least one year of undergraduate study is required.
• Applicants must have a US employer willing to sponsor them and pay them the prevailing wage for the position (which depends on the type of position and location of work, and is determined by the government). The salary must be reported to the US Department of Labor.
• There is a limit of 65.000 H-1B visas per fiscal year. Applications must be submitted for the following Fiscal Year from April 1st. For example, applications starting October 1, 2011 can be submitted as early as April 1, 2011. This is important, as the 65.000 visas are usually sold out almost immediately.
• 20.000 visas are set aside each year for applicants with a master's degree or higher from the US They also sell out very quickly.
• The duration of the stay is 6 years. In special circumstances there are extensions beyond 6 years.
• Dependent spouses and children under 21 (H-4) are not eligible for work purposes, but may study.
• O-1 (extraordinary able alien) visa — for individuals with extraordinary ability in the sciences, arts, education, or athletics. The alien must come to the United States to work in his or her area of extraordinary ability or achievement.
• The initial admission/stay is for 3 years, which can be extended indefinitely in periods of 1 year.
• Dependent spouses and children under the age of 21 (O-3) are not eligible for work purposes, but may study.
Requirements- You must be able to demonstrate at least 3 (preferably more) of the following:
• Receipt of international or national awards for excellence in their field
• Judge of international or national awards for excellence in the field
• Significant publications written by/or near abroad
• Original contribution of paramount importance in the field
• Continued significant commercial success and/or critical acclaim
• International or national recognition by critics, major organizations, government agencies or recognized experts in the field
• You have received a high salary or other type of high remuneration
• Has played an essential or leadership role for a highly reputable organization
• Membership in associations that include the most prominent people in the field
OTHER TEMPORARY VISAS WITH EMPLOYMENT AUTHORIZATION FOR NON-IMMIGRANTS
• F-1 visa (students)- This status may allow some students so authorized, to have employment inside or outside the study center, or to be in "practical training" for a period of 12 months before or after the conclusion of their studies. their academic studies.
• J-1 visa (exchange visitor/student/trainee/teacher/medical resident)- The “J” visitor program contemplates the exchange of people in the areas of education, arts and sciences. J-1 visitors may include students, persons in on-the-job training; teachers and professors, researchers and international visitors in cultural matters.
• H-2B visa (Temporary workers performing a service or temporary non-agricultural work). The employer must show that there are no US workers in the United States who are capable of performing that job or service. It must be shown that the work requirement is a one-time occurrence, a seasonal need, a high-demand need, or an intermittent need. The limit is 66,000 visas per fiscal year.
• H-3 visa- Temporary workers invited by an individual or organization for the purpose of receiving instruction or training other than postgraduate medical education or training. The training program must be "one that is not primarily intended to provide productive employment."
IMMIGRANT CLASSIFICATIONS WITH EMPLOYMENT AUTHORIZATION (PERMANENT RESIDENCE / “GREEN CARD”)
• EB-1-1 –Persons with extraordinary ability in the field of science, art, education, business, or athletics. **This category is similar to the O-1 nonimmigrant visa and is often used by O-XNUMX recipients to apply for permanent residence.
• EB-1-2 – Outstanding professors and researchers.
• EB-1-3 –Executives and administrators of multinationals. **This category is very similar to the L-1A company internal transfer nonimmigrant visa and is often used by its recipients to apply for permanent residence.
• EB-2 –Members of the professions holding advanced degrees or persons of exceptional ability. These cases require a labor certification approved by the Department of Labor or a waiver based on the national interest.
• EB-3 – Skilled workers, professionals and other workers. Available to college graduates and people working in jobs that require workers with at least two years of experience. Requires an approved labor certification
PROCESS FOR PERMANENT RESIDENCE WITH EMPLOYMENT AUTHORIZATION / “GREEN CARD”
1st Step: Work Certification – “PERM”. It requires the employer to make a serious recruitment effort. The employer must show that there is no US worker in the United States who is capable of performing that job or service. Electronic application. Work Department.
**Not required for those with EB-1 or EB-5 classification.**
Step 2: I-140 – Immigrant Petition for Alien Worker. The employer must prove the existence of a bona fide job offer, as well as the ability to pay the prevailing wage.
Step 3: I-485 – Application to Adjust Status. The applicant must remain in legal nonimmigrant status in the United States.
Step 3: Consular Processing (if outside of the United States) done directly through the US embassy in the applicant's country.
• The existing backlog of applications of this type may cause a delay of 1 to 7 years before a final determination is made (depending on the classification of the applicant and their country of origin).
PERMANENT RESIDENCE THROUGH INVESTMENT
• EB-5 – Investors and job creation- Available to those who invest at least one million dollars (or $500,000.00 if the investment is in a high unemployment geographic area - “Targeted Employment Area”) in a business in the US. and create at least ten new full-time jobs for American workers. The investment must be funds “at risk” and the investor must be able to prove the legitimate origin of said funds.
• Those who prefer to be passive investors (who will not have to run their own company) can invest in a Regional Center (“Regional Center”). Regional Centers have to be approved in advance by Immigration, and are focused on a geographic area. It must promote the economic development of the region through investment, productivity, creation of new jobs, and increased domestic investment.
There are 10,000 EB-5 immigrant visas each year. 3,000 of these are set aside for use by the Regional Centers program.
In addition to having the funds for the investment (one million or $500,000 depending on the geographic area), a qualified investor must have a net worth of more than one million, or gross annual income of more than $200,000 for the past two years.
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