Any Questions - Emigration April 2010

Friday, April 09, 2010

Any Questions - Emigration April 2010

The expert:
Donna Scarlatelli is Attorny at Law for Immigration and Director of Scarlatelli, P.A. For further information call 001 941 9170066 or visit

Which visas are flavour of the month across the pond?

Q. What are the most common visas that British people are currently using to enter the US?

Chris Gummer, Southampton

A. The most popular visas are the E-2, the H-1B or the L-1A visa. Many people refer to the E-2 visa as a "business" visa, but it is officially called the "treaty investor non-immigrant visa". It is based on a treaty between the US and the UK and the rules governing issuance of the visa are quite intricate. Unlike with most non-immigrant visas the process does not depend on a prior petition being filed with the immigration authorities in the US. Because the visa is contingent upon a treaty and treaties are the purview of the Department of State and consulates represent the State Department abroad, applications are taken directly at the US Consulate in the applicantís home country. This can be both a blessing and a curse. It's a blessing in that the process can be shortened because there is no prior bureaucratic process in the US, but a curse in that the Consular officer is not bound by any prior decision of the US immigration service and has full discretion to grant or deny the visa with no formal appeal process and little to no review of a decision. Also, those who apply for permanent residence must waive their rights and immunities under the relevant treaty. However, contrary to popular opinion, that does not mean that an E visa-holder cannot become a permanent resident of the United States.

The E-2 visa requires that there be a US commercial entity (normally a company) that is majority-owned and/or controlled by nationals of the treaty country and that the applicant holds the same nationality and that there be a substantial commercial investment in the US that will do more than merely support the investor and his family. Although these visas are subject to what may appear to be the whims of the Consul, they are immensely popular and have two added benefits. Firstly, spouses of these visa-holders can obtain unrestricted employment permission and, secondly, there are essentially no limits on how long one may remain in the US although the visa-holders must have an intent to leave the country eventually.

The H1B visa is reserved for professionals or those engaged in what are classed as ìspecialty occupationsî. This non-immigrant visa has become extremely controversial and is currently limited to 65,000 new visas each federal fiscal year, plus an additional 20,000 reserved for applicants who earned advanced degrees from American universities. While the US employer generally does not need to prove any shortage of American workers, it must identify a position within the company that normally requires a minimum of a four-year university degree for an entry-level position, and the foreign applicant must establish that he or she holds such a degree or its equivalent. This process can begin with the filing of a company's sponsorship petition six months ahead of when the job will start. As the federal fiscal year starts on 1 October the floodgates open on 1 April each year. In the last few years the immigration service has received upwards of double the applications for the 65,000 places in just the first few days. This quota makes this visa no longer a solid option for immigrating to the US based on a job offer. When more than the 65,000 applications have been submitted, the immigration service holds a lottery to pick the lucky 65,000. The quota has not yet been reached this year, largely due to the downturn in the economy and the fact that the US government prohibited banks who took the federal bail-out funding from using the H-1B visa programme.

The L-1A visa is reserved for those who have worked abroad for at least one in the previous three years for a company that now has a common ownership with a company in the United States. One may seek to be transferred to the US as a manager or executive. The L-1 visa requires that there be a US sponsoring company, but that employer can be a new business enterprise.

In which case, the foreign national would look to obtain a "start-up" L-1 visa. The start-up visa can be readily granted for one year. At the end of that year, the employer must show that the US company is "doing business" and has a commercial enterprise that requires the ongoing services of the L-1 foreign national. The maximum period of time for executives and managers to remain in the US in L-1 status is seven years and for L-1 specialised knowledge staff the maximum is five years. For certain qualified managers and executives, the L-1 visa can be converted to the green card with little difficulty.

This visa is an exceptionally good choice for both short-term results and long-term planning, but the requirements must be carefully managed. There are two additional distinct advantages: firstly that the spouse can obtain employment authorisation and secondly, the Consul cannot deny the visa even once the applicant has started the green card process.


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