Monthly Archives: February 2013

TN Visa for Canadian and Mexican Professionals

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OK, it’s not just for Canadians, as it also applies to Mexican nationals. The TN visa was created as a result of the North American Free Trade Agreement (NAFTA). However, more Canadians use this visa than Mexicans.

Did you know that Canada and the United States share a land border that exceeds 3000 miles? These two great nations have had a longstanding relationship that goes beyond its borders. Every year, thousands of Canadians move to the United States to work. While there are several types of U.S. work visas, one of the most common visas for Canadian is the “TN visa.”

Under this visa, a Canadian citizen may work in a professional occupation in the U.S. if:

1) He/she qualifies under the “Professionals Under the North American Free Trade Agreement” list; the alie

2) the Canadian possesses the specific criteria for that profession;

3) the employment position in the U.S. requires someone in that professional capacity and

4) the Canadian is going to work for a U.S. employer.

TN visas are renewable every three years (previously only one year), so long as the Canadian demonstrates an intention to return to his/her home country.

Please feel free to contact Maximilian Law Inc. with any questions about TN visas, or any other U.S. Immigration issues. Maximilian Law Inc. will assist in preparing all necessary documents for your application for a TN visa. We will ensure that your application is filled out correctly, and that you have provided all of the documents necessary – including documents from your prospective employer

When Should a B-1 Business Visitor Visa Holder be on an H-1B Visa?

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A citizen of a foreign country who wishes to enter the United States must first obtain an appropriate visa. The most common visa for visitors is the B visa. This applies to people entering the United States temporarily for business (B-1), or for pleasure or medical treatment (B-2). B-1 visas allow foreign nationals coming to the U.S. to engage in business. Examples including traveling to the U.S. to consult with business associates; to attend a scientific, educational, professional or business convention; to settle an estate; or to negotiate a contract. The best way to think about it is that you can come to the U.S. to conduct business, but you should not be employed by a U.S. employer, or take a wage/salary while you are down here.

A lot of foreign nationals come to the United States to conduct business, but not necessarily to engage in active employment by a United States employer. In these instances, the foreign employer may send its employee to the United States for a few days or up to six months for short assignments. The problem with doing this is that several business-related trips to the United States on a B-1 visa may cause the USCIS to believe that the foreign national should be on an H-1B visa instead.

The H-1B visa is issued to foreign nationals seeking temporary work in a “specialty occupation,” which requires the skills of a professional. Generally, these are occupations that require at least a bachelor’s degree or its equivalent, such as accountants, computer analysts, web programmers, web designers, engineers or financial analysts. The H-1B visa is costlier to obtain than a B-1 visa. Filing fees are at least $1,500.00, excluding attorney’s fees. Moreover, it requires a United States employer to pay the foreign national a certain salary, and it generally takes at least two or three months to be granted a visa.

If a USCIS officer suspects that a foreign national should be on an H-1B visa, the B-1 visa may be cancelled and entry denied. This has become more frequent in light of an increase in the misuse of such visas by people attempting to circumvent the need for more expensive visas. United States Senator Charles Grassley spoke on the issue of abusing B-1 visas in lieu of H-1B visas, stating: “There is an option to use the B-1 or business traveller visa in lieu of the H-1B work permit in some cases.”

On balance, it is certainly permissible for a foreign national to enter the United States in order to conduct business, negotiate contracts and the like. However, one needs to be cognizant of the fact that the prolonged or sustained engagement of such activity within the United States may affect the foreign national’s chances of being re-admitted to the United States later on. To reduce this likelihood, try to keep the visits and the business affairs short and ensure that you are not being compensated by a United States employer.

U.S. Citizens Petitioning a Foreign Spouse for Permanent Residency Must Prove Domicile in U.S.

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A U.S. citizen petitioning/sponsoring a foreign national spouse for permanent residency must prove that he/she is domiciled in the U.S. at the time of the petition. Domicile means the place where the petitioner has his/her principal “residence” in the U.S., with the intention to maintain that residence for the foreseeable future. Residence means the place of general abode. The place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.

Unless otherwise established, a petitioner who is maintaining a principal residence outside the U.S. cannot claim domicile and is ineligible to file a petition unless he/she can re-establish domicile.

If the petitioner is living abroad, then he/she:

– Must demonstrate that steps have been taken to establish domicile in the US;

– Has already taken up physical residence in the U.S. or will do so concurrently with the foreign national;

– Must at least arrive in the U.S. concurrently with, or before, the foreign national;

– Must establish an address (a house, an apartment, or arrangements for accommodations with family or friend) and either must have already taken up physical residence in the United States; or at least demonstrate that he/she intends to take up residence there no later than the time of the foreign national’s immigration to the U.S.

Though there is no specific time frame, the petitioner must demonstrate at the time the petition is submitted that he/she has taken up principal residence in the United States. Evidence that the petitioner has: 1) established a domicile in the United States and is either physically residing there; or 2) intends to do so before or concurrently with the foreign national may include:

– Opening a bank account;

– Transferring funds to the United States;

– Making investments in the United States;

– Seeking employment in the United States;

– Registering children in U.S. Schools;

– Applying for a Social Security number; or

– Voting in local, State, or Federal elections

If a petitioner cannot satisfy the domicile requirement, he/she fails to qualify as a sponsor and the foreign national will be refused entry as a permanent resident.

Cedric M. Shen, Esq. / Maximilian Law Inc. / (310) 591-8200 U.S. / (604) 288-7771 Canada / contact@maxlawinc.com / www.maxlawinc.com

Visa and Green Card Options for Foreign Entrepreneurs in the United States

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Entrepreneurs have played a large part in shaping the U.S. economy. Their innovation and willingness to start a business is beneficial to the United States and its citizens as a whole. However, foreign nationals starting a business in the United States require a proper visa or green card.

There has been a lot of debate in Congress and the Senate about how to allow entrepreneurs remain in the United States in order to start their businesses. These include proposals about “stapling a green card” to every foreign national who graduates from a U.S. college with a major in a STEM (Science, Technology, Engineering, Math) program. While we await the anticipated immigration reform changes by the President Obama in 2013, let’s review some of the existing options for foreign entrepreneurs in the United States.

OPT/STEM extension

Foreign students who graduated from a SEVIS-approved United States post-secondary institution are eligible to work under Optional Practical Training (OPT). This is a one (1) year open work permit with no restrictions as to the type or scope of employment. Many graduates on OPT end up working for U.S. employer who sponsor them for other work visas such as H-1B or TN.

OPT is valid for up to one (1) year, with no extensions permitted. However, graduates with a degree in the STEM program are eligible to extend their OPT for an additional seventeen (17) months – for a total of almost two years.

H-1B Visa

The H-1B allows foreign nationals to work for US employers in a “specialty occupation,” such as lawyers, doctors, physical therapists, graphic designers, account managers, etc. Approval of an H-1B visa requires meeting certain criteria: 1) a bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position being offered; 2) the degree requirement for the position being offered is common to the industry, or the job is so complex or unique that it can be performed only by an individual with a degree; 3) the employer normally requires a degree or its equivalent for the position being offered; and 4) the nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or higher (i.e. Master’s, MBA, J.D., PhD., etc.)

65,000 H-1B work visas are issued every fiscal year. Congress has allotted an additional 20,000 visas for employees with a master’s degree or higher. The fiscal year begins on October 1st and the USCIS begins accepting applications on April 1st.

The USCIS originally interpreted the H-1B regulations to mean that a skilled worker who is in the United States in H-1B status could found a company but could not work for it. However, the USCIS clarified in 2011 that such owners on H-1B visas could in fact work for their own companies if it was full-time and they are treated as an employee. For example, if the company was structured in a manner that a board of directors had authority to hire, fire, pay, supervise or control the foreign national as they would with any other staff member, then he/she may be permitted to work in H-1B status.

O-1 Visa

The O-1 visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements. The O non-immigrant classification is commonly referred to as:

O-1A: Individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry

O-1B: Individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry

To qualify, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability. Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor. Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

L-1 Visa

Transferring to a U.S. company

If an entrepreneur is opening up a United States location for a branch, affiliate, or parent company overseas, the L-1 visa also allows a foreign company that does not yet have an affiliated U.S. office to send a manager/executive to the United States for the purpose of setting one up. To do so, the entrepreneur must demonstrate that: 1) sufficient physical premises to house the new office have been secured; 2) the employee has been employed as a manager/executive for one of the three previous years; and 3) the new U.S. offices will support an executive/managerial position within a year of the L visa being issued. These employees will be granted an initial one-year L visa. This is an ideal visa for entrepreneurs looking to expand to the United States and should be considered as an alternative to the E visa.

E-2 Visa

The E-2 visa allows foreign entrepreneurs who are citizens of a country that has a treaty with the United States, to make an investment into a new or existing business enterprise. Generally, the investment must be substantial, at risk, and the investor must oversee and direct the day-to-day operations. The visa is valid for three years, and is renewal indefinitely so long as the business continues to operate.

What is a ‘substantial investment’?

The term “substantial” for an E-2 visa is not clear-cut. The unwritten rule of thumb is that the investment should be at least $250,000.00 USD if the business/enterprise is new. There may be some cases where the investment is as low as $50,000.00. However, these cases usually involve businesses that act as a subsidiary to a parent company in the foreign national’s home country. In these types of situations, the investor may also want to consider an L visa..

What does ‘at risk’ mean?

This means that the investment must be at risk of being lost of the business is unsuccessful. This may be done be entering into contracts or agreements for services or rent, purchasing merchandise or equipment, or hiring staff.

Pros and cons

The E-2 visa is a great vehicle for foreign entrepreneurs to live in the United States while operating a business. One advantage is that the application can be processed within three weeks under Premium Processing. Another advantage is that the visa is valid for three years, and renewable indefinitely so long as the business continues to operate.

The disadvantage is that the investment amount can be significant, and the entrepreneur risks losing all the money and being forced to return to his/her home country if the business is unsuccessful. There is also no direct path to permanent residency on an E-2 visa. While an E-2 visa holder may obtain permanent residency through employment or marriage, the E-2 visa itself does not make one eligible for permanent residency.

EB-1 Green Card

Certain foreign entrepreneurs may be eligible for EB-1 permanent residency if they have an ability that is “extraordinary,” or if they are a multinational executive or manager. Each category has certain requirements that must be met. The EB-1 green card is reserved for an exclusive group of people, though there is no restriction with respect to education or profession. It can be anybody who is one of the very best at what they do: a Michelin-award winning chef, an Olympic medal-winning athlete, a Nobel Prize-winning scientist, a published author, a renowned professor, or an Academy Award-winning actress.

The foreign entrepreneur must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. The achievements must be recognized in his/her field through extensive documentation. No offer of employment is required.

The applicant must meet 3 out of the 10 listed criteria below to prove extraordinary ability in the field:

Evidence of receipt of lesser nationally or internationally recognized prizes or awards for excellence
Evidence of membership in associations in the field which demand outstanding achievement of their members
Evidence of published material in professional or major trade publications or other major media
Evidence that the applicant have been asked to judge the work of others, either individually or on a panel
Evidence of original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field
Evidence of authorship of scholarly articles in professional or major trade publications or other major media
Evidence that the applicant’s work has been displayed at artistic exhibitions or showcases
Evidence of performance of a leading or critical role in distinguished organizations
Evidence that the applicant commands a high salary or other significantly high remuneration in relation to others in the field
Evidence of commercial successes in the performing arts
Multinational manager or executive

If a foreign entrepreneur has an extensive business background, he/she may qualify for an EB-1 as a multinational manager or executive. To do so, the foreign entrepreneur must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and he/she must be seeking to enter the United States to continue service to that firm or organization. The employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer. The petitioner must be a U.S. employer, and it must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed the foreign national abroad.

EB-2 Green Card

The EB-2 category is reserved for individuals of exceptional ability in the arts, sciences or business; individuals with advanced degrees (M.D., J.D., LLM, Ph.D. etc.); and foreign doctors who will practice in an underserved area in the U.S. Foreign nationals who qualify for an EB-2 green card must have an employer who is willing to file a petition on his/her behalf.

National Interest Waiver

National interest waivers are usually granted to foreign entrepreneurs who have exceptional ability and whose employment in the United States would greatly benefit the country.

EB-5 Green Card

If a foreign entrepreneur invests $1 million into a business within the United States and creates at least 10 jobs, then he/she may be eligible for an EB-5 green card. The requirement is reduced to $500,000 and 10 indirect jobs if the business is located in a rural or high unemployment area.

As you can see, there is no shortage of options for a foreign entrepreneur to obtain a valid U.S. visa or green card. Please feel free to contact us for an evaluation of the most viable options for you.

About the author

Cedric M. Shen is a U.S. immigration attorney based in Los Angeles, California with extensive experience in working with foreign entrepreneurs. You can reach him at:

Maximilian Law Inc.

3424 Wilshire Blvd, Suite 928

Los Angeles, California 90010

(310) 591-8200 (U.S.)

(604) 288-7771 (Canada)

(888) 228-4525 (Toll-Free)

www.maxlawinc.com

contact@maxlawinc.com

H-1B visa – An Unconventional Option for Foreign Entrepreneurs

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Foreign investors and entrepreneurs have had limited options when starting a new business in the United States. For the most part, the E-2 treaty trader visa and the EB-5 investor green card were the only two options. Both of these require an entrepreneur to invest a substantial amount of capital, as well as to demonstrate job creation.

However, in 2011, USCIS Director Alejandro Mayorkas announced a series of new initiatives that, among others, adds another avenue for foreign investors and entrepreneurs to obtain a work visa in the United States. While the initiative is new, the vehicle is not. Namely, entrepreneurs who start a new business in the United States may now qualify for an H-1B visa.

The H-1B is a temporary work visa designed for employees in a “specialty occupation.” Traditionally, the H-1B requires a U.S. employer to petition a foreign employee for the visa. If approved, the employee may work for the employer in that specialty occupation for up to six years. A key requirement in the H-1B visa is that the employer has a right to control the employee. This includes the ability to hire and to fire the employee. Thus, the requirements for an H-1B visa fly directly in the face of an entrepreneur trying to start a business in the United States. Generally, the entrepreneur is the owner and employer. As such, the entrepreneur cannot act as an employee and is unable to control him or herself.

Faced with criticism and a desire to increase job growth in the United States, the USCIS clarified the H-1B requirements in order to allow certain foreign entrepreneurs to qualify. Thus, foreign entrepreneurs who start their own businesses in the United States may now self-petition for an H-1B visa as long as their business entity is structured in such a manner that an employer-employee relationship exists between the employer and the entrepreneur. When the entrepreneur is an owner, he/she may qualify as a beneficiary of an H-1B if the company’s corporate governance, such as board of directors, is structured in a manner that allows a board to exercise control over the entrepreneur – including the right to fire the entrepreneur.

There are certainly benefits for an entrepreneur to seek an H-1B visa. The entrepreneur does not have to invest the high amount of capital that he/she would for an E-2 or EB-5, which can be anywhere from $250,000.00 to $1 million. Furthermore, unlike the E-2 visa, the H-1B is a path to citizenship. On the other hand, the H-1B visa requires that the entrepreneur be paid the prevailing wage – which could be difficult for a start-up company.

Entrepreneurs may also consider self-sponsorship of a green card under the EB-2 National Interest Waiver (NIW) category. The EB-2 category generally applies to employers sponsoring employees with advanced degrees. However, the USCIS clarified that a foreign entrepreneur may self-sponsor for a green card under this category if he/she can show that the business would benefit the national interest of the United States.

Cedric M. Shen / Maximilian Law Inc / 310 591 8200 / www.maxlawinc.com