Get A Visa

Visas for Visiting the United States

Visas, those permits that open the door for foreign nationals to live and work in the United States, may be divided into immigrant and non-immigrant categories. An immigrant visa is in fact the "green card," a document signifying that a person is a lawful permanent resident of the U.S. and may live and work in the United States, and travel without limitation. Foreign nationals may apply for an immigrant visa (i.e., for a green card) based on employment considerations or on family relationships. The immigrant categories are described in a separate document.

Non-immigrant visas are temporary: when the visa and any extensions expire, the visa holder in theory leaves the U.S. and returns home, unless, of course, he or she changes to another non-immigrant visa status or adjusts to permanent residency before expiration of the non-immigrant visa.

The types of non-immigrant visas most commonly utilized in Florida are those described below. Please remember that it is always wise to consult an attorney specialized in immigration matters when deciding which type of visa is appropriate to your situation. Foreign nationals who receive erroneous information concerning these visas can find themselves in difficult situations. An attorney specializing in immigration is able to recommend the type of visa best suited to an applicant's personal situation or can inform the client that there is no chance of obtaining a visa, thus saving the client money and aggravation.

B Visas: Temporary Visitor for Business or Pleasure

B-1/B-2 Visas: General Observations . These visas are the most common. The B-1 visa was created for “temporary visitors for business” purposes. The B-2 visa was created for “temporary visitors for pleasure,” that is, for tourists and others who wish to visit the U.S. temporarily, for example, to visit relatives. Many consulates grant both visas, the B-1/B-2, at the same time. This explains the practice of referring to B visas as “B-1/B-2” visas.

Visa Waiver Program-- a trap for the unwary : Under the visa waiver program, nationals of Argentina and many European countries no longer need a B-1 or a B-2 visa to travel to the U.S. When making entry into the United States, they receive a green paper form similar to the I-94 “Departure Record” that other foreigners receive on entry. This “green I-94” allows them to stay three months in the U.S. but NOT A DAY MORE. When their 3-month stay is up, they are absolutely obligated to leave the U.S. and no extensions for any reason whatsoever are granted.

Advantages of the B-1 visa : Nationals of the visa waiver pilot program countries are told they do not need a visa. While this is true, if they are coming to the U.S. to explore the possibility of obtaining a non-immigrant visa, they nevertheless should insist on obtaining a B-1 visa. There are many advantages to the B-1 visa as opposed to the visa waiver authorization. The B-1 temporary visitor for business visa allows the visa holder to negotiate contracts, execute contracts and perform all sorts of exploratory acts regarding a future U.S. business, provided they are not paid in the U.S. from U.S. sources. The B-1 visa may be valid for stays of up to 6 months on each entry, and a stay under a B-1 visa may be extended for an additional period of up to 6 months. Under certain circumstances, this is a great advantage indeed.

Precautions : The B-1 visa allows its holder to undertake many business-type activities. What it does NOT allow is payment of a salary by a U.S. company to the foreign national in the U.S. In other words, a B-1 visitor for business must continue to be paid by the home company while in the U.S. in B-1 status.

Change of Status. Present law allows a person having entered the U.S. with a B-1 visa and who is granted another non-immigrant visa while in the U.S., an L-1 visa for example, to file for a change of non-immigrant status (from B-1 to L-1A, or from B-1 to E-1 or E-2, etc.) without having to leave the United States. This is impossible for aliens present in the U.S. under the visa waiver program. This is another reason for all foreign nationals wishing to obtain a non-immigrant visa to apply for a B-1/B-2 visa.

E Visas: Treaty Trader and Treaty Investor

General Definition of E-1 and E-2 Visas : For nationals of countries having signed a bilateral investment treaty or a treaty of friendship and navigation with the United States, the E-1 and E-2 non-immigrant visas, or one or the other but not both in some cases, are available. The E-1 visa is the “treaty trader” visa: a foreign enterprises establishes a U.S. office and initiates commercial exchanges of goods or services or both between the U.S. and the country of origin. The E-2 visa is the “treaty investor” visa: a foreign national of the treaty country invests funds in the U.S. to establish a business and is granted the E-2 visa to direct and supervise the business.

Who grants the E visas? An E-2 or E-1 visa may be granted by the INS within the U.S., as is the case with all other non-immigrant visas, but unlike other visas, is generally granted by the U.S. consulate in the applicant’s country of origin. This means that E visas often are approved with less delay than other non-immigrant visas. It also means that the applicants must obtain all necessary information regarding filing requirements from the U.S. consulate in their home country, since different consulates often have different requirements.

Length of Stay : The E visa is generally granted for an initial stay of two years. There is no maximum limit of stay as there is in the case of H and L visas. So long as the business in which the alien has invested continues to operate, the visa holder may continue to reside and work in the U.S. Each time the E visa holder returns to the United States after a trip abroad, he or she is given another two-year stay without having to apply formally for an extension. In practice, this means that some E visa holders stay for many years in the U.S. in E visa status without ever having to file a formal application for an extension of the visa.

Family Members : The E visa holder may bring the visa holder’s family members to the U.S. (no matter what their nationality: that of the treaty country or any other country). The family members may not work, although they can study.

Conversion to Immigrant Status (Green Card ):E visa holders generally must undergo the labor certification process to obtain a green card. This requires up to three years and is a relatively onerous procedure.

Specific Requirements for both E visas : To be able to use this visa, the following elements must be present for both an E-1 and an E-2 visa application:

1. U.S. Business: At least 50% of the U.S. business that will employ the E-1 or E-2 alien must be owned by nationals (persons having the nationality) of the same country as the alien (note that U.S. permanent residents [green card holders] who are of the same nationality of the alien nevertheless do NOT count as “nationals of the treaty country” under the law).

2. Treaty: There must be a treaty in place between the alien’s country of origin and the United States.

3. Trade or Investment: The trade (for an E-1 application) or the investment (for an E-2 application) must be “substantial.”

4. Alien applicant: In general, the alien who will be granted the E-1 or E-2 visa must be the actual investor or trader and must have an executive or supervisory position the U.S. business or have skills essential to the U.S. business .The visa beneficiary must have the necessary qualifications, through study or experience, to perform the duties of the position to be occupied.

Specific Requirements for E-1 visa: “substantial” trade : the essential requirement for the E-1 (treaty trader) visa is that the trade between the U.S. company employing the visa holder and the country of origin be “substantial”, which means, initially, that over 50% of the total volume of that trade must be between the U.S. and the country of origin. The INS takes into account also (a) the total dollar amount of trade carried out in a given year; (b) the number of transactions; (c) the size of the individual transactions; and (d) the continuous character of the commercial flow involved. While there are no bright-line rules, it is clear that many transactions representing large dollar amounts are better than only a few small transactions.

Specific Requirements for E-2 visa: “substantial” investment:

1. Amount of the Investment. The law does not impose a minimum investment that automatically qualifies as “substantial” for purposes of the E-2 visa. However, if the business is a startup formed by the investor, the amount of the investment should be approximately the amount necessary to establish such a business in the U.S. under prevailing market conditions. If the investment is in a business already existing, the amount invested should bear a certain proportionality to the total value of the business (the higher the value, the lower the percentage; rules drafted by the INS but that were never published called, for example, for an investment equivalent to 75% of the total value if such value was $500,000 or less).As a general rule, E-2 visa applications based on investments of less than $100,000 require particularly careful preparation by an attorney.

2. Marginality. The regulations provide that the business in which the E-2 applicant invests must not be “marginal.” This means that the business should (a) produce profits in excess of what is sufficient for the investor and the investor’s family; or (b) show the potential for creating jobs for U.S. citizens and residents. The investor should seek to show ideally that the business is able to create jobs. In the alternative, the investor may show that the investor has personal funds available in an amount sufficient to allow the investor to live while the new business gets off the ground.

3. Form of Investment. Having money in a bank account is not “investing” it for purposes of the visa. The money must be irrevocably committed to the business. It may consist of borrowed funds on condition that the visa applicant is solely responsible for repayment of the loan, not the business. Escrow arrangements are permissible: the funds may be deposited in an account that provides for reimbursement of the funds if the E visa is not granted.

4. Who is the “investor”: The principal investor is a person owning at least 51% of the investment company. An “essential skills” employee also may apply for an E-2 treaty investor visa as such. The principal investor comes to the U.S. to “develop and direct” the investment.

Filing requirements . Besides the official application form (OF-156, or OF-156E), the application package for an E visa must contain documents showing fulfillment of the visa requirements. These documents in general would consist of the Support Letter from the employer company to the INS, to which the support documents would be attached. The support letter would contain statements regarding the following points:

1. Reference to the treaty with an indication of the ownership of the Company by foreign nations of the treaty country.

2. Description of the business (trading business or the business to be conducted by the company in which the investor is investing).

3. E-1 and E-2 visas: duties to be performed by the individual for whom the visa application is being filed and the qualifications of the individual showing ability to perform such duties,

4. E-1 (treaty trader) visa: indication of the percentage of trade between the country of origin and the U.S.

5. E-2 (treaty investor): total value of the business or the amount required to set up such a business as a new company, and the size and amount of the actual investment being made by the treaty investor.

6. E-2 (treaty investor): form of the investment and steps taken to carry it out.

7. E-2 (treaty investor): list of workers employed by the company in which the investment is being made, together with the prospects for the creation of further jobs.

Documents . In general, full documentation will be required to justify all affirmations made in the cover letter described above. The U.S. company must furnish copies of its corporate documents. Proof of the transfer of investment funds must be shown. Proof of trade for the E-1 visa obviously must be provided.

Summary : For persons who do not own a business abroad, or who have not worked for a year continuously for a foreign company, but who dispose of funds or contacts sufficient to allow them to establish a U.S. trading company or other type of business in the U.S., the E-1 or E-2 visa is the best alternative, especially if they do not have the diplomas or experience required for an H visa and have not found an employer willing to offer them a job. Another advantage of the E visa is that it potentially allows stays of unlimited duration during the life of the treaty enterprise.

L-1 Visa: Intra-company transferee

General Definition . The L-1 visa allows a foreign company to send an executive or managerial employee, or an employee with specialized knowledge essential to the U.S. operation, to the United States to direct (or work at) its American branch or subsidiary.

Length of Stay : If the American subsidiary is a newly formed company, the L-1 visa will be granted initially for one year. If the American subsidiary has been in existence for a longer time, the L-1 visa may be granted for an initial stay of up to a maximum of three years. Successive extensions of the visa may be requested, up to a maximum stay of seven years for executive and managerial employees and five years for “specialized knowledge” employees.

Family Members : The family members of an L-1 visa holder, that is, spouse and minor children (under 21), obtain L-2 status. L-2 visa holders may study in the U.S. but they may not work unless they independently qualify for a visa giving them the right to work (L-1 specialized knowledge, H-1B, etc.).

Conversion to Immigrant Status (Green Card ): Since 1990, there is an employment based immigrant preference category for “priority workers.” Persons meeting the requirements for this preference category may apply for the green card based on their employment as international managers or executives without having to go through the onerous labor certification process. The requirements for this “priority worker” executive-manager category are, practically speaking, the same as those for the L-1 non-immigrant visa. Consequently, foreign nationals who obtain an L-1 visa when working for a U.S. company that has been in existence for over one year may apply for a green card quite easily, since (a) the requirements and the documentation are very similar for both applications, and (b) the prior L-1 visa approval means that the INS recognizes the quality of the applicant’s employment. Holders of other non-immigrant visas generally find it much more difficult to obtain an employment-based green card. Thus, persons who meet the requirements for all three of the principal non-immigrant visas (E, H and L) generally would be well advised to opt for the L visa.

Specific Requirements : To be able to use this visa, the following elements must be present:

a. The foreign company should be an established enterprise with employees and resources generally sufficient to be able to support an American operation.

b. The relationship between the U.S. company and the foreign company must be a qualifying relationship: for example, the foreign company may own 51% or more of the U.S. company’s stock, or the U.S. company and the foreign company may be owned by the same group of shareholders (in the same general percentages).

c. The L-1 visa applicant must have worked for one continuous year or more out of the three preceding years for the foreign company, in an executive or managerial position or a position involving “specialized knowledge”, and must be coming to the U.S. to occupy a similar executive, managerial or specialized knowledge position.

d. The foreign company must continue to do business abroad throughout the period of stay of the L-1 visa holder.

Documents to be furnished : An L-1 visa petition must be accompanied by documentation showing that the above requirements are met. Such documents generally would include the following (although other documentation may be necessary depending on the circumstances of each case:

FOR THE FOREIGN COMPANY:

• Articles of Association or Incorporation (Estatutos, Statuts, Statuten,

etc.)

ii. Letter from company accountant certifying who present officers and directors of the Company are.

iii. Copies of share certificates showing ownership of foreign company (or other documents showing such ownership).

iv . Payroll records (showing that Beneficiary has been employed with foreign company for at Least one year within the last three years).

v. Financial records (balance sheets, profit and loss statements, sales records, etc.) for the last two years.

vi. Bank letter (letter from foreign company’s bank indicating the date the account was opened and the average balance of the account) together with recent bank statements (for the past 3 months)

vii. Income Tax Return (most recent; if possible for the preceding two years),

viii. Business Lease or proof of ownership of business premises if foreign company owns its own offices or other premises

ix. Brief memorandum describing the history and the activities of the foreign company.

x. Brochures and/or advertisements (printed and other media), other promotional materials: catalogues, pamphlets, annual reports etc.

xii. Invoices, bills of lading, contracts, etc. (preferably for last 3 months)

xiii. Flow chart (organizational chart)

xiv. Blank stationery (letterhead, envelopes)

xv. Memorandum on proposed operations in the United States, listing a description of the position the beneficiary will occupy in the U.S. as well as all the reasons the foreign company wishes to establish a presence in the U.S.; corporate resolution authorizing the American project (if this conforms to corporate practice under the circumstances)

xvi. Description of the job (with title) that the future beneficiary of the L-1 visa will occupy with complete description of the services rendered at present by the individual for the foreign company and to be rendered by such person to the U.S. company.

xvii. Letter from foreign company’s accountant indicating the gross annual income of the company, gross annual sales, as well as the position the individual L-1 beneficiary occupies and for how long such beneficiary has been employed)

FOR THE U.S. COMPANY:

i. Articles of Incorporation

ii. Stock Share Certificates

iii. Federal Employer I.D. No.

iv. Business Lease

v. Bank Statement

vi. Occupational Licenses (City, County or both)

vii. Proposed flow chart (organizational chart)

viii. Business Plan (with description of U.S. operations being contemplated)

ix. Letterhead (business stationery of Company)

x. Pro forma invoices

xi. Contracts to be performed by the new office

xii. Copy of telephone directory showing company listed (if possible)

FOR AN ESTABLISHED U.S. CORPORATION: same as above plus the following:

i. Income Tax Return for U.S. Corporation.

ii. Financial Statements

iii. Employer Quarterly Tax Report

iv. Invoices

v. Promotional materials

vi. Advertisements (printed or other media)

FOR THE BENEFICIARY (the Employee being sent to the U.S.):

i. Passport for principal beneficiary and for each family member (spouse and children) and I-94’s if they are in the U.S.

ii. Resume or CV (Curriculum Vitae)

iii. Copies of diplomas (high school, university, graduate)

Summary : Non resident aliens who own or control a foreign company that is sufficiently well capitalized to support an operation in the United States and who have been working for over a year, continuously, during the three years immediately preceding the date of application, should consider the L-1 visa as one of their best alternatives.

H-1B Visa: Specialty Occupation Visa

General Definition . The H-1B “specialty occupation” visa is often used for foreign nationals who have university degrees and who have been offered by a U.S. employer a job that requires just such university degree involving specialized knowledge. The H-1B alien must be paid the prevailing wage and a certification to that effect (the “Labor Condition Application” or LCA) must be obtained from the Department of Labor. Employers must remember that the LCA, showing the job being offered to the alien and the alien’s salary, is published where all existing employees of the company may see it. Finally, the total number of H-1B visas is limited: at present to 195,000 visas per fiscal year.

Length of Stay : The initial H-1B visa is granted for a stay of up to 3 years. Extensions may be granted for up to an additional 3 years. The total stay in H-1B status may not exceed six years.

Family Members : Family members are admitted in H-4 status. They cannot work but can study.

Conversion to Immigrant Status (Green Card ): If the employer who offered the job on which the H-1B visa application is based agrees to sponsor the H-1B visa holder for permanent residency, it will be necessary to undergo the labor certification process, that can take up to three years to finalize.

Specific Requirements : To be able to use this visa, the following elements must be present:

1. Labor Condition Application. The employer must file an LCA with the Department of Labor to obtain a certification that the wage to be paid the H-1B visa holder meets the statutory requirements.

2. The Job. The job being filled by the H-1B visa applicant must be one that requires, by its nature, a university degree. In other words, it must be a “professional” position. This requirement is often difficult to meet: the fact that a specific employer requires a degree where other employers similarly situated do not, for similar positions, is not enough to qualify the position as “professional” for purposes of the H-1B visa. Justifying the requirement of a bachelor’s (university) degree is one of the most difficult hurdles to overcome when preparing the H-1B application.

3. Qualification of the visa holder. The person who will receive the H-1B visa must meet the professional requirements for the position to be occupied. The applicant must have either the equivalent of a U.S. degree, or a combination of academic studies and practical experience that is the equivalent of the U.S. degree. One often cited rule of thumb is that three years of relevant practical, on the job experience is the equivalent of one year’s academic study.

4. Wage to be paid. The wage to be paid the H-1B visa applicant must be the higher of the actual wage for the position or the prevailing wage for such positions in the relevant labor market.

Documents to be furnished. The visa applicant must provide documentation justifying fulfillment of the above requirements, in particular the academic achievements and the practical experience of the applicant.

Summary : For persons having the necessary academic and practical experience and background, and who do not meet the financial and corporate requirements for the E and L visas, the H visa is the appropriate avenue to follow. It is interesting to note that 80% of the H visas have been granted to computer programmers and physical therapists.

Final Comments

The foreign national who wants to remain in the United States with the right to work finds it difficult to understand the issues related to non-immigrant visas and the categories and subcategories of the immigrant visa classifications. This is an area where professional advice is essential, not only to determine which of the many visas available the foreign applicant has the best chance of obtaining, but especially to avoid any mistake in preparing the application that can and will cause problems for the applicant in the future. Working with a competent professional will ensure a smooth ride on the highway leading to a visa or a green card and, hopefully, commercial and financial success in the USA.