US Visa Guide

Guide to US Immigration Visa Types

US Citizenship and Immigration Services (USCIS) offer a wide array of visa options, shifting requirements, eligibility and quotas for those wishing to immigrate to, work in, invest in or otherwise live in the United States. Visa options usually fall under two categories:

1. Immigrant visas for those seeking legal permanent residence “Green card” and possibly US citizenship.
2. Nonimmigrant visas for temporary stays in the US where the visa typically has an expiration date.

This Chudnovsky Law guide outlines the most common visa types.

Investor Visas | E2, EB5

E2 Treaty investor visa

The E-2 nonimmigrant classification allows a national of a treaty country (a country with which the US maintains a treaty of commerce and navigation) to be admitted to the US when investing a substantial amount of capital in a US business.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification.

To qualify for E2 visa classification, the treaty investor must:

• Be a national of a country with which the United States maintains a treaty of commerce and navigation. List of US Treaty countries.
• Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the US.
• Be seeking to enter the US solely to develop and direct the investment enterprise. This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

EB5 Visa immigrant investor program

Under this program, EB-5 visa entrepreneurs (and their spouses and unmarried children under 21) are eligible to apply for a green card (permanent residence) if they:

• Make a minimum investment of $1,000,000 in a commercial enterprise in the US. A lower investment minimum of $500,000 can apply for investing in certain regional centers and “Targeted Employment Areas” with high unemployment or rural locations.
• Plan to create or preserve 10 permanent full-time jobs for qualified US workers.

EB5 visa investments can be made directly or through USCIS approved regional centers and include a wide variety of options including real estate, businesses and restaurants among others. Investments can either be passive or actively managed by the investor.

Immigrant Work Visas | EB1, EB2, EB3, EB4

EB1 & EB4 Visa for permanent workers

Under the EB-1 to EB-4 visa programs, if you have the right combination of skills, education, and/or work experience and are otherwise eligible, you may be able to receive a green card and live permanently in the US. Contact Chudnovsky Law to review your eligibility.

Approximately 140,000 immigrant visas are available each fiscal year for aliens (and their spouses and children) who seek to immigrate based on their job skills. The following visa preference categories do not require a labor certification:

• EB1 visa: The EB-1 visa preference is reserved for persons of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors or researchers; and multinational executives and managers. EB-1 criteria.
• EB4 visa: The EB-4 visa preference is reserved for “special immigrants,” which includes certain religious workers, employees of US foreign service posts, retired employees of international organizations, alien minors who are wards of courts in the US, and other classes of aliens. EB-4 criteria.

EB2 & EB3 Visa for permanent workers

The EB-2 and EB-3 visa preference categories require a labor certification unless applicant can obtain a national interest waiver. The visa qualification criteria are as follows:

• EB2 visa: The EB-2 visa preference is reserved for persons who are members of the professions holding advanced degrees or for persons with exceptional ability in the arts, sciences, or business. EB-2 criteria.
• EB3 visa: The EB-3 visa preference is reserved for professionals, skilled workers, and other workers. EB-3 criteria.

IMMIGRATION & VISA SERVICES

Nonimmigrant Work Visas | H1B, L1, O1, E1, E3

H1B Visa for specialty occupations

The H1-B visa category applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.  Your H1B spouse and unmarried children under 21 years of age may seek admission in the H-4 nonimmigrant classification.

H1-B visa quota caps are quickly used up within days of release on April 1st of each year. For 2018 Congress mandated a regular cap of 65,000 H1 B visas and a further H1B Master’s Exemption cap of 20,000 visas available for Master’s degree or higher applicants.

Congress caps the quantity of H-1B visas that can be issued each year as follows:

• H-1B Regular Cap: 65,000 (Less the Chile-Singapore Cap)
• H-1B Master’s Exemption: 20,000 (Requires a U.S. Master’s degree or higher)
• Chile-Singapore Cap: 6,800 (Deducted from the Regular Cap as used under the U.S. Chile and Singapore Free Trade Agreements)

For 2017, USCIS reached the quota on April 7th after receiving 236,000 applications in 5 days for the 85,000 available visas. The separate 6,800 H-1B petition quota for nationals of Chile and Singapore has never been exhausted. While this separate quota is deducted from the Regular Cap, any unused quota is added back to the Regular Cap the next fiscal year.

The earliest start date for Chudnovsky Law April 1st applicants is October 1st of each year.

Cap-exempt H1B visa for specialty occupations

Congress has carved out exemptions from H-1B cap limitations for workers employed at certain qualifying institutions. These institutions are free to employ as many H-1B workers that otherwise qualify. The USCIS definition of cap-exempt employers includes workers employed by or at:

1. Higher education institutions
2. Non-profits related to or affiliated with higher education institutions
3. Nonprofit research or governmental research organizations

E1 Treaty trader visa

The E-1 nonimmigrant visa classification allows a national of a treaty country (a country with which the US maintains a treaty of commerce and navigation) to be admitted to the US solely to engage in international trade on their own behalf.  Employees of such a person or qualifying organization may also be eligible for this classification.

To qualify for E-1 classification, the treaty trader must:

• Be a national of a country with which the US maintains a treaty of commerce and navigation. List of US Treaty countries.
• Carry on substantial trade with continuous flow of sizable international trade items, involving numerous transactions over time.
• Carry on principal trade between the US and the treaty country where over 50% of the total volume of international trade is between the US and the trader’s treaty country that qualified the treaty trader for E-1 classification.

L1 Visa intracompany transferee

The L1A and L1B nonimmigrant classifications enable a US employer to transfer an executive, manager or professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the US.  This classification also enables a foreign company which does not yet have an affiliated US office to send an executive or manager to the US with the purpose of establishing one.

To qualify for L-1 classification the named employee must:

• Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the US; and
• Be seeking to enter the US to provide service in an executive or managerial capacity or to provide services in a specialized knowledge capacity for a branch of the same employer or one of its qualifying organizations.

O1 Visa extraordinary ability worker

The O-1 nonimmigrant 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. An advisory consultation letter from a qualified peer group is generally required to qualify. O2 and O3 visas are available for assistants and family members accompanying O-1 visa recipients.  O-1 criteria and classifications.

TN Visa NAFTA professionals

The TN nonimmigrant classification permits qualified Canadian and Mexican citizens to seek temporary entry into the US to engage in business activities at a professional level as authorized under the North American Free Trade Agreement (NAFTA). The initial period of stay can be up to 3 years and may be extended upon application.

Among the types of professionals who are eligible to seek admission as TN nonimmigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers. The TN nonimmigrant classification is available to qualified citizens of Canada or Mexico who have prearranged a full-time or part-time job with a US employer. Any accompanying or “following to join” spouse and children under the age of 21 may be eligible for TD nonimmigrant status. Spouses and children are not permitted to work while in the US, but they are permitted to study.

E3 Visa specialty occupation from Australia

The E-3 classification applies only to nationals of Australia coming to the US solely to perform services in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of knowledge in professional fields and at least the attainment of a bachelor’s degree, or its equivalent, as a minimum for entry into the occupation in the US. Your spouse and unmarried children under 21 years of age are entitled to the same E-3 classification. Your spouse is entitled to work authorization, but not your children.