E1 VISAS: TREATY-TRADERS

E1 VISAS: TREATY-TRADERS

By Christopher Kerosky, Esq.

Certain countries have treaties with the U.S., nationals of that country may enter the U.S. for the purpose of directing and developing the operations of the enterprise (E-2) or for the purpose of conducting trade (E-1). 

The requirements of the E1 visa are as follows:

• Citizenship of a Treaty Country.  The investor, either a person, partnership or corporate entity, must have the citizenship of a treaty country. At least 50 percent of the business must be owned by persons with the treaty country’s nationality.

·       Substantial Trade. The international trade must be substantial, meaning that there is a sizable and continuing volume of trade.

·       Trade must be between U.S. and Treaty Country. More than 50 percent of the international trade involved must be between the United States and the treaty country.

·       What is Trade? Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other.

·       Must be Executive, Manager or Essential Employee. You must be an essential employee, employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify.

Am I eligible for an E-1 visa?

You may be eligible for an E-1 visa if you are an entrepreneur, manager or employee who needs to live in the US to oversee a company that is involved in substantial and principal trade.

What can I do on an E-1 visa?

As an E-1 visa holder you can:

·       Work legally in the U.S. for the petitioning U.S. company

·       Travel freely in and out of the U.S.

·       Stay in the U.S. with unlimited two year extensions as long as you maintain E-1 status

·       Bring your dependents to the U.S.

How long can I stay in the U.S. on an E-1 visa?

Visas are typically given for two years with unlimited five year visa extensions or two year status extensions as long as you maintain E-1 status.

How does One apply for the E-1 visa?

If the applicant is outside the U.S., he or she can apply directly at the Consulate.  An application with the Immigration Service first is not necessary, as it is with some other visas. 

Can I apply for a Change of Status

If the applicant is in the U.S., he or she can apply for a change of status without leaving the U.S.

Can I bring my dependents on an E-1 visa?

Yes, you may bring your spouse and unmarried children under the age of 21 years to stay along with you. They may stay in the U.S. as long as you maintain your E-2 status.

WARNING: The above is a summary discussing legal issues. It is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.

OPENING A BUSINESS IN CALIFORNIA: Part 3 Obtaining a Federal Tax I.D. Number

OPENING A BUSINESS IN CALIFORNIA: Part 3

Obtaining a Federal Tax I.D. Number

This is the third in a series of articles written for the purpose of assisting persons who intend to start a business in California.  It is designed for the small business owner who may not be familiar with California law or procedures.  In the last article, I discussed registering one’s business with the County by filing a fictitious business name statement.  In this article, I will describe the process of getting a federal employer identification number and opening a bank account. 

Third Step: The Federal Employer Identification Number.

The federal employer identification number (EIN) is a 9-digit number assigned to  corporations, partnerships, sole proprietorships estates, trusts and other entities for tax filing and other purposes.  As a business, an EIN is necessary before you can hire employees, pay taxes and even open a bank account.  Moreover, the federal employer identification number is often easier to get than a social security number and some foreign nationals use it instead of a social security number.   Although not approved by the government, it is sometimes used as a way around the difficulty that non-citizens who are self-employed and cannot obtain social security numbers.

The federal employer identification number is your business’ form of identification with the government.  It is the number listed on the federal tax return for your business.  It is also listed on the employee payroll reports the business files with the federal government, if you have employees.  And you may wish to give this number – rather than your social security number – to the bank to associate with your business bank accounts.

A business entity needs only one EIN, no matter how matter different types of business it does or locations it has.  However, if a sole proprietor or partnership incorporates, it needs to obtain a new EIN.

Contrary to many mistaken beliefs about employer identification numbers, they do not result in higher taxes or any special fees for businesses who obtain them.  The process of getting one is free and does not require a lawyer.  Moreover, they are required by law for most businesses.  Partnerships, LLCs, and corporations need employer identification numbers whether they have employees or not.  Only sole proprietors with no employees do not need employer id numbers because they can use their own Social Security number instead.

The federal employer identification number is obtained through the Internal Revenue Service (IRS).  There are three ways to get the EIN: on line, by fax or by mail. 

To get the number on line, simply go to www.irs.gov/businesses.  Click “Employer ID Numbers” under “Topics”.  Follow the easy instructions stated there.  You can obtain a EIN immediately. 

The IRS has also set up an easy system whereby you can get your employer identification number by phone.   You simply call the special IRS telephone number set up for this purpose.  You need to prepare the application form in advance – it is IRS Form SS-4.  The person calling must be authorized to sign the form or be an authorized designee of that person.  When you call the IRS, you simply provide the pertinent information from the IRS form and you will get your federal employer identification number immediately, over the phone.  Then you simply send in the completed SS-4 form or fax it to the IRS Service Center with the employer identification number filled in on the form.

As mentioned above, the federal employer identification number is sometimes used by immigrants in business here who cannot obtain a social security number.  As most foreign nationals know, the U.S. Social Security Administration has greatly limited the ability of non-citizens to get a social security number now.  Permanent residents can get them, as can persons on temporary visas which provide the right to work in the U.S. during the pendency of the visa.  But for persons on temporary visas, the card states: “Valid Only with work authorization”.  Persons here on tourist visas, business visas and most student visas cannot get a social security card, as of course, those persons who are here without status. 

The EIN can be obtained by persons who have a business here in lieu of a social security number.  This is often used by persons without a social security number to open a business, open a bank account and pay taxes.  While the government does not condone this behavior, it is widely done.

 In short, the federal employer identification number is an easy-to-obtain, useful and even necessary tool for any business in California.  It should be one of the first steps you take when starting your business.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced law for over 25 years and has been recognized as one of the top lawyers in Northern California for 10 years by “Super Lawyers” www.SuperLawyers.com .   He graduated from University of California, Berkeley Law School and was a former counsel for the U.S. Department of Justice in Washington D.C.  His firm has offices in San Francisco, Los Angeles and 7 other locations in California. 

H1b VISA QUOTA IS GONE; OPTIONS IF YOU’RE TOO LATE

H1b VISA QUOTA IS GONE; OPTIONS IF YOU’RE TOO LATE.

It took only five days for the yearly visa quota for the H1b professional visa to be used up this week. The U.S. Citizenship and Immigration Service (USCIS) announced this week that it has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2020.

So what are your options if you or your employee have submitted your H-1b application in time?  What if you are not eligible for an H-1b visa?

This article will provide an overview of these non-immigrant visas in the U.S. based upon employment or business purposes.  Some of these options surely will not apply; but perhaps there is one or more that can provide a short-term or long-term option for you or your employee.

F-1 visa: Student visa.  Visa for an unspecified period of time while the student is enrolled full-time in an approved program of study.  This may be a good option if you were a student before applying for the H-1b and you can extend your study or go back to school.  It usually is an expensive solution as you need to study full-time and pay international student tuition.  Generally, you cannot work with this visa.

J-1 visa: Training visa.  Visa for up to 18 months while the person is enrolled in an approved program of training for a specific company.   This can be a good option for persons having completed college recently.  You obtain a work permit, but it is supposed to be “on-the-job” training only.

         B-1 visa: Business visa.  Available to persons doing business in the U.S.  It is usually valid for six months or less, but may be extended in the U.S. by simple application to the CIS.  This can be a possibility to extend your time here in order to search for business partners and contacts, as long as you adhere to the visa terms: no working, visa ends in six months or less. 

B-2 visa: Tourist visa.  It is usually valid for six months or less, but may be extended in the U.S. by application to the CIS.  This can provide a short-term solution, allowing the foreign national to stay a few months longer before returning home for touristic reasons.  Filing the extension application automatically extends one’s legal stay in the U.S. until a decision is reached.

L-1 visa: Intra-company transferee.  This is a good option for foreign nationals employed by a multi-national company doing business here.  A visa for an executive or person with specialized knowledge, sponsored by a company abroad with a related company here.  The first visa is valid for 1 year , but may be extended up to 7 years.  It provides the right to work for the sponsoring company.  Does not require that the applicant have a degree.

E visa: Treaty trader or investor visa.  This is a good option if you happen to have a “substantial” amount of money to invest in the U.S. and want to start a business here.  Requires a treaty with the country of origin of the applicant and substantial investment in the U.S. or trade with the U.S.

R-1 visa: Religious worker.  A visa for persons sponsored by a religious institution, valid for 2 years but may be extended.  A very good alternative for persons offered work by a church, synagogue, school or other religious institution.

O/P visa: Artist or entertainer.  A visa allowing artists, entertainers or athletes to stay in the U.S. for the purpose of specific performances for a specific limited period.  The government requires that they document their “outstanding” qualifications and “international acclaim”.   The standards are quite high.

Every person’s unique case must be evaluated specifically to determine which non-immigrant visa might offer the best chances for extending their legal status here.  These categories are not broad and the options are limited, but in many cases, one may find a solution if their H1b visa dreams were unfulfilled this year.

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CHRISTOPHER A. KEROSKY is a partner with Wilson Purves in the law firm of KEROSKY PURVES & BOGUE, with offices located in San Francisco, Santa Rosa, San Rafael, Ukiah, Napa, Walnut Creek, San Jose, Sacramento and Los Angeles.  Mr. Kerosky has been an attorney licensed to practice law in California for 25 years.  He is a graduate of UC Berkeley (Boalt Hall) School of Law and a former trial lawyer for the Civil Division of the U.S. Department of Justice in Washington D.C.  For 10 years, he has been honored as one of Northern California’s top lawyers by “Super Lawyers” www.SuperLawyers.com.  Mr. Kerosky speaks English, Spanish and Polish and has also working knowledge of Russian.

WARNING: The article above is not intended to be a substitute for legal advice. We recommend that you get competent legal advice specific to your case.