Employment and Corporate Immigration

The Immigration and Nationality Act of the United States creates five categories for employment-based immigration. The first four are described here. The fifth, the EB-5, is discussed in another section.

Priority Workers (Priority Workers or EB-1): 28.6% of employment-based immigrant visas available each year are issued to people with extraordinary ability in the sciences, arts, education, business or athletics, as evidenced by awards at national and international level, and whose achievements have been documented extensively in the areas in which they stand. This classification does not require the applicant to have an employer in the United States, or have to go through the process of Labor Certification.

Professionals and Persons with Exceptional Ability (EB-2): 28.6% of employment-based immigrant visas available each year are issued to “professionals with advanced degrees or their equivalents, or, for exceptional in science skills, arts or business prospectively will benefit educational, economic and cultural interests of the United States or general welfare. ” This classification requires that the applicant have an employer in the United States, unless they are granted a “national interest waiver”. All other applicants have to go through the Labor Certification process.

Skilled Workers, Professionals and Other Workers (EB-3): 28.6% of employment-based immigrant visas are available for this category. Unlike the EB-1 and some EB-2 immigrants, applicants in this category have to go through the labor certification process.

Certain Special Immigrants (EB-4): Not more than 7.1% of employment-based immigrant visas are assigned to certain persons in particular, described by the Immigration Code as persons employed by the US government abroad, certain employees of the Panama Canal Company, Consulate General of the US in Hong Kong, among others.

There is an exception to the minimum investment rule, which reduces the same to $500,000.00 for people who invest in an area of ​​high unemployment or low population density.

An immigrant may also benefit from the exception to invest $1,000,000.00 or more if such investment is made in a “Regional Center” so designated by the Immigration Service of the United States.

Special Situation: Law 22 of 2012 of Puerto Rico

Since 2012, certain individuals who become bona fide residents of Puerto Rico may receive a 100% exemption from taxes on dividends, interest and capital gains long term.

In theory, this benefit could apply to applicants for an EB-5 visa, which in turn decide to invest in Puerto Rico and become residents of the territory of the United States.

Do not hesitate to arrange a consultation for details.

One of the least known paths leading to the United States are the E-1 and E-2 visas, or visas for treaty traders and investors. Upon receipt of this visa, a person can relocate to the United States for a definite period of time to directly manage an investment made in the country, or to devote to promote “trade” between their country of nationality and the United States. This time period can be extended indefinitely as long as it is necessary for the foreign investor or trader to remain in the United States to manage such business activity.

These visas require that the United States has a treaty of investment and/or commerce with the country of citizenship of the applicant.

As to the E-2 “treaty investor” visa, unlike the Immigrant Investor category, there is no minimum amount for the initial investment, since it is only required that the same is substantial in relation to the type of business the foreigner wishes to invest in within the United States.

In addition to the requirement of a substantial investment, the investment itself must be made before the foreigner may apply for the E visa.

With these visas, transnational corporations may transfer an executive, manager or person of foreign specialized knowledge to work temporarily in a parent, subsidiary, or affiliate company based in the United States. These visas are issued, usually, for a period of three years may can be renewed for up to 5 years for people specialized knowledge and 7 years for executives and managers transferred to the United States.

The following is fundamental for any application for an “L” visa:

There must be a valid relationship between the foreign corporation and the U.S. based corporation (i.e., there is a parent-subsidiary relationship between the two companies, or they share the same set of shareholders, etc.);
Out of the last 3 years, the executive, manager, or person of specialized knowledge to be transferred has been employed for at least 1 year in the foreign company, and in the same capacity such employee will be transferred to the company in the United States;
That the foreign company will continue in operation during the projected time period that the executive, manager, or person of specialized knowledge will be working in the U.S. based company; and
The person transferred shall perform the tasks of executive, managerial or specialized nature during their stay in the United States.

Special scenario: New Offices in the United States

In situations where an L-1A or B visa is requested to transfer a person to open or assist in opening a new office in the United States (i.e., the office for less than a year in operations), the requirements to qualify for the visa are higher. The petitioner must demonstrate that the company may:

Sustain such employee within a reasonable period of time (in other words, pay his salary), and

The company has recruited or will recruit staff to carry out non-executive, managerial or specialized nature work, within a reasonable period of time, so that the transferee will not have to engage in tasks of such nature.

In these cases of new offices, the L-1A may be approved for a maximum period of stay of one year. Naturally, this can be renewed at the end of the year.

As part of an “L1” visa application, the employee may also request “L-2” visas for their spouse and children. Spouses with “L2” status may also request permission to work in the United States.

The Immigration Code states that athletes with “international recognition” may receive visas to come to the United States to compete in sporting events. Some recent amendments to the law (the COMPETE Act of 2006) allows “professional athletes” to qualify to receive this type of visa.

A professional athlete is anyone who:

Is part of a team affiliated to a league with 6 or more teams, and that the league has revenues of at least $10 million a year, or;

Be part of a minor league team affiliated with a league with the characteristics described above..

Support personnel may also benefit from these visas (P-3) as well as the families of the athletes (P-4).

This visa category is also used for the benefit of members of the entertainment industry, such as dance groups, musicians or artists who wish to perform and/or work in the United States.

The Immigration Code also recognizes a variety of visas for foreigners wishing to work temporarily in the United States. Among these are the “O” (for persons of extraordinary ability in the sciences, arts, education, business or sports), “Q” (for participants in an international cultural exchange program), “R” (for religious) and “I” (representatives of news and media, etc.) visas.