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.

HOW TO OBTAIN A PROFESSIONAL VISA (H-1B)

By Christopher A. Kerosky, Esq.

The H-1B visa is a very common visa used for foreign professionals hired by a U.S. employer.   H-1Bs can be hired only for what the government calls "specialty occupations," -- jobs requiring the equivalent of at least a bachelor's degree in the field.  

This is a visa commonly used for IT professionals of all types – computer programmers, engineers, computer assisted design professionals.  It also includes all variations of other professionals such as doctors, engineers, professors, accountants, lawyers, physical therapists and a host of other jobs.

Under current law, no more than 65,000 H-1B visas can be issued each year.  The first day to apply every year is April 1^st.  It is important that your application be received by the Citizenship and Immigration Services (CIS) on that date (not before, not after), as the quota is used up within days for each of the last 5 years.

In order to qualify, the employer must demonstrate that the position requires a professional in a specialty occupation and that the intended employee has the required qualifications. Typically, the minimum qualification is a university (bachelor’s) degree or its equivalent.  

Employers must also pay a wage to every H-1B worker the “prevailing wage”, that is at least as much as what is typically paid in the region for that type of work   Employers cannot make the H-1B nonimmigrants work under conditions different from their U.S. counterparts.

The H-1B visa is issued for 3 years, but can be extended up to 6 years.  Presently, the processing of such visas takes between 4-6 months. 

What is required to obtain an H1B visa?

An H-1B visa requires that the job qualify as a “specialized occupation” which requires a bachelor’s degree.  The applicant must also have a bachelor’s degree in the same or similar field or its equivalent.

Am I eligible for an H-1B visa?

In order to qualify, the employer must demonstrate that the position requires a professional in a specialty occupation and that the intended employee has the required qualifications. Typically, the minimum qualification is a university (bachelor’s) degree or its equivalent.  

What can I do on H-1B visa?

·       May legally work in the U.S.

·       Travel to and from the U.S. and reenter as many times as you wish during the validity period of the H-1B visa, as long as you have a valid stamp in your passport.

·       H-1B visa holders may simultaneously seek Lawful Permanent Residency or a Green Card for themselves and for their family.

What are the limitations of H-1B visa?

·       If you change jobs you must reapply for a new visa, under the new position

·       You can only work for the company with petitioned for you.

Can I bring my dependents on H-1B visa?

Yes, you may bring your dependents on an H-1B visa. Your spouse and unmarried children are entitled to a H-4 visa and they can stay as long as you maintain valid H-1B status..

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

Generally H-1B visa is granted for three years. It may then be extended, up to six years total.

Can I transfer my H-1B visa to another company?

Yes, but a new petition must be filed by the company.

What if there is a change in my working conditions while I'm on  H-1B status?

As long as you continue to provide H-1B services to a U.S. employer, most changes will not affect your H-1B status. You may change H-1B employers without affecting status, but your new H-1B employer must file a new visa application before you start work.

Is there an annual quota on the number of H-1B visas issued?

Yes. The current annual quota on the H-1B category is 65,000 for each Fiscal Year.

Is everyone covered by the annual quota for H-1B visas?

There are certain exceptions to the annual cap:

• Persons who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.

• Also, there is a special allocation of H-1B visas for foreign workers with a Master's or higher level degree from a U.S. academic institution. 20,000 beneficiaries of H-1B petitions on behalf of persons who hold such credentials are statutorily exempted from the cap for each year.

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CHRISTOPHER A. KEROSKY of the law firm of KEROSKY PURVES & BOGUE has practiced immigration law for over 25 years.   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. 

Mr. Kerosky has been recognized as one of the top lawyers in Northern California for 9 years by “Super Lawyers” Magazine.  See www.superlawyers.com. 

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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.

Obtaining a visa for foreign-born workers

[This article was published in the Sonoma County Gazette, July issue. https://www.sonomacountygazette.com/sonoma-county-news/immigrant-stories-by-christopher-kerosky-july-2018.  Thanks to Liliana Gallelli, who cowrote this article]

The federal government has long had a sort of “don’t ask, don’t tell” policy toward much of our economy here – vineyards, other agriculture, restaurants, hotels, among others.  It goes something like this: we won’t ask if your workers are legally here and please don’t tell us, or we’ll have to deport them and your industry won’t have workers to hire.    

Now, Sonoma Count is suffering from an ever-growing shortage in labor.  Contributing factors are low interest rates leading to an increase in business development and a tight housing market, made worse by the fires.  Draconian immigration policies have further worsened the situation.    

Unknown to many employers, a guest-worker visa program exists to supposedly help fill the gap in business personnel needs.  One such visa is the H2 visa--H2A for agricultural workers, and H2B for temporary, nonagricultural jobs.  But the bureaucracy an employer is required to navigate and the costs of the process are too daunting for most.

The H-2B temporary non-agricultural program allows U.S. employers to bring foreign nonimmigrant workers to the United States to fill temporary nonagricultural jobs.

This visa is a highly technical process that involves multiple state and federal government agencies, including State Workforce Agencies, the U.S. Department of Labor, the U.S. Department of Homeland Security, and the U.S. Department of State.

  

While there are numerous reports that businesses throughout the nation are being hurt by the inability to count on a labor force, H2 visas are capped at only 66,000 per year  (33,000 for workers required during April 1 – September 30, and 33,000 for October 1 – March 31). In fiscal year 2018, U.S. Citizenship and Immigration Services (“ USCIS”), received approximately 2,700 H-2B petitions requesting approximately 47,000 workers, which is more than the number of H-2B visas available. As a result, USCIS, conducted a lottery February 28 to randomly select enough petitions to meet the cap. 

Despite the Trump Administration’s focus on “Buy American, Hire American”, U.S. businesses depend on immigrant workers.  After strong lobbying by companies ranging from tech to Maine lobster, The Secretary of Homeland Security, in consultation with the Secretary of Labor, decided to increase the numerical limitation on H–2B nonimmigrant visas to authorize the issuance of up to an additional 15,000 through the end of Fiscal Year (FY) 2018.

Temporary worker visas usually are contingent on the employer’s showing that it tried to locate and hire U.S. workers but was unable to do so.  This includes obtaining the requisite prevailing wage  determination from the US Department of Labor.   Thus, before requesting H-2B classification from the U.S. Citizenship and Immigration Services (USCIS), the employer must apply for and receive a temporary labor certification for H-2B workers from the U.S. Department of Labor (DOL).

In order to receive an H-2B temporary labor certification, the employer must establish that:

§  There are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.

§  The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

§  Its need for the prospective worker's services or labor is temporary. With the exception of a one-time occurrence need that could last up to three (3) years, temporary need will not be approved for longer than 10 months. The employer's need is considered temporary if it is a(n):1) a one-time occurrence, 2) seasonal need, 3) peakload need, or 3) intermittent need 

Embarking on the H2 visa also requires an economic commitment:  Filing fees payable to the government, reimbursement of visa fees, recruiting, transportation from their hometown to the job site prior to employment, and back again when the employment period is over, housing etc.  Best estimates on costs alone: $8,000 to $10,000 per worker. 

Oh, and by the way, no persons who are already here without status are eligible.  You need to find appropriate workers in Mexico or some other country and they are not getting a visa if they’ve been here illegally.

This is just another example of why our immigration laws need reform.