Employment Based Visas (Non-Immigrant)

Employment Based Visas (Non-Immigrant)

The U.S. Department at Kan-Tor & Acco is able to navigate complex fields of law governing work and entry permits. Drawing on our rich experience in international personnel transfer and relocation, regional consular processing law and varied business and legal contracts, Kan-Tor & Acco unifies the global marketplace by facilitating the swift and efficient transfer of personnel to the United States.

While concurrent developments in U.S. immigration policy and procedures make it increasingly difficult to transfer vital corporate staff, KTA is prepared to offer the best service possible to keep up with the rapid expansion of a global high-tech market and help you and your staff navigate the process with ease.

E-1 Treaty Trader

The E-1 visa is contingent on the existence of a trade treaty between the U.S. and a given country. The treaty is designed to promote bilateral trade and permits Israeli nationals and citizens of other qualifying countries to apply for E-1 visas which will allow them to work in the U.S.

FAQ

How can a company qualify for E1 status?

The E-1 nonimmigrant classification is issued to an Israeli organization which meets the regulatory requirements relating to nationality and trade:

"Nationality". For E-1 purposes, the majority (50%) of the issued shares of the ultimate parent company must be held by Israeli nationals. The nationality of the persons owning the corporate stock is their country of citizenship. Shares which are traded on a public exchange are assumed to have the nationality of the country in which the exchange is located. When there are several companies in the line of ownership this analysis must be undertaken by each company, and the 50% requirement must be met at each level. Israeli nationals who are also U.S. citizens or legal permanent residents do not qualify as “Israeli nationals” for purposes of meeting the 50% requirement.

"International trade". Under the international trade requirement, at least 50% of the company's international trade must be carried out between Israel and the U.S. "International trade" refers to the total of all exports and imports, of products and/or services.

The trade must be “substantial” based on the volume of trade, the number of transactions, and the existence of a continued course of trade. There is no minimum requirement regarding the monetary value or volume of each transaction. While monetary value of transactions is an important factor in considering substantiality, greater weight is given to more numerous exchanges of greater value.

What are the requirements for the E1 Employee?

An Israeli national can qualify for E-1 status if they have the requisite experience to either assume an executive or supervisory position or perform services which are “essential to the efficient operation of the business”. There is no requirement that the visa applicant was previously employed by the petitioning company.

What are the benefits of the E-1 visa category?
  • No prior employment with the company is required.
  • Process Flexible: The E-1 visas are issued by the U.S. Embassy – Tel Aviv Branch in Israel
  • Visa-processing time per employee will be significantly shorter than the time required for other visas which must be filed with USCIS.
  • Spouses may obtain work authorization for employment in the U.S.
  • E – 1 status for both the Company and the employee can generally be extended with no time limit as long as the basic criteria continue to be met.
  • Generally E-1 employees receive visas for 5 years, and the E-1 status of the company is valid for 3 years.
  • What is the E1 application process?
  • The E-1 application process varies from post to post. The U.S. Embassy – Tel Aviv Branch has very specific documentary requirements for the E-1 application process. A petition letter for the company, the employee and supporting documentation is submitted to the Embassy by registered mail. Once the file is reviewed the E-1 visa applicant will be invited to an interview and Attorneys are permitted to attend.
  • Upon company approval additional E-1 visa applicants may schedule a visa interview through the online system. The applicant must provide a petition letter and additional required documents at the time of visa interview.
Can I apply for the E-1 visa while in the United States?

If USCIS authorized a Change of Status to E-1 while the visa applicant was in the United States, that status is valid as long as the applicant remains in the United States. In order to return to the US after exiting, you must obtain an E-1 visa at the U.S. Embassy. This requires the submission of a complete application on behalf of the petitioning company and proposed employee. The process is as referred to above.

 

E-2 Treaty Investor

E-2 is an investor’s visa which provides an opportunity for qualifying entrepreneurs to enter and work in the United States in order to develop and direct their U.S. business. The E-2 can be used to start a business or buy an existing business. Key employees of the qualifying company, who are Israeli nationals, or nationals of the relevant treaty country, can also be eligible for E-2 status.

FAQs

How can a company qualify for E2 status?

The E-2 nonimmigrant classification is issued to a qualifying organization which meets the following regulatory requirements:

"Nationality" - For E-2 purposes, the majority (50%) of the issued shares must be held by nationals of the treaty country. Foreign nationals who are also U.S. citizens or legal permanent residents do not qualify as for purposes of meeting the 50% requirement.

2. “The Investment” - You must have invested or be actively in the process of investing, which requires that you:

Show legitimate “Possession and Control of the Funds” - The investor must own and control the capital invested in the business, and be able to identify the legal source of the funds. The funds may come from inter alia, a business, family, property owned by the investor, inheritance, savings and gifts. There are specific criteria for the use of loans as part of the initial investment.
All funds invested are “At Risk” & Irrevocably Committed” - The E-2 investor must establish that funds have already been invested, or, that he/she is actively in the process of investing in the U.S. company. The investor must demonstrate that the capital has been irrevocably committed to the proposed E-2 business to the point of no return. The investment must not be “speculative” or unsubstantiated.
Your investment must be “Substantial” - There is no set monetary minimum as to how much capital must be invested. Instead, the investment must be enough to ensure, to a reasonable extent, that the business invested in is not speculative, but is, or soon will be, a successful enterprise as a result of sound business and financial judgment.

The investment must be:

  • Substantial in relationship to the total cost of either purchasing an established business or establishing a new one.
    Sufficient to ensure the investor’s financial commitment to the successful operation of the business.
    Of a magnitude to support the likelihood that the investor will successfully develop and direct the business. The lower the cost of the business, the higher, proportionately, the investment must be to be considered substantial.
  • Your Investment Cannot Be Marginal

A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the investor and his or her family. A new business might not be considered marginal even if it lacks the current capacity to generate income if it can be shown the business has the capacity to generate income within five years from the date that the investor’s E-2 classification begins.

  • The Business Must Be Operational

In order for the company to receive E-2 status, it must be shown that the business is already in its “operational stage”, such as the production of goods or the actual provision of services has begun. As a rule, you cannot apply for a visa if the business is not ready to start business activities immediately upon receipt of the visa.

  • You Must Be in a Position to “Develop & Direct” the Business

The investor may apply for E-2 status as the owner of the company or the owner may send key employees who qualify based upon nationality and hold the requisite skills to “develop and direct the enterprise”. An employee must meet the following eligibility requirements:

Be engaging in duties of an executive or supervisory nature; or
If employed in a lesser capacity, have special qualifications which make the employee’s services “essential” to the efficient operation of the business.

What are the benefits of the E-2 visa category?

There is no required investment amount.

The investment may consist in part of borrowed funds.

The E-2 Visa can be obtained by either purchasing an existing business or creating a new business in the United States.

E-2 investors/employees can receive initial ability to enter and work in the U.S. for 2 years.

There is no limitation as to the number of extensions, as long as the company continues to meet the requirements of the visa.

No prior employment with the company is required.

Spouses may obtain work authorization for employment in the U.S.

 

What is the application process for the E-2 visa?

It is important to note that the E-2 application process varies with each consular post.

The U.S. Embassy – Tel Aviv Branch has very specific documentary requirements for the E-2 application process. A petition letter for the company, the employee and supporting documentation is submitted to the Embassy by registered mail. Once the file is reviewed the E-2 visa applicant will be invited to an interview. Attorneys are permitted to attend.

Upon company approval additional qualified E-2 visa applicants may schedule a visa interview through the online system. The applicant must provide a petition letter and additional required documents at the time of visa interview.

Can I apply for the E-2 visa while in the United States?

If USCIS authorized a Change of Status to E-1 while the visa applicant was in the United States, that status is valid as long as the applicant remains in the United States. In order to return to the U.S. after exiting, you must obtain an E-1 visa at the U.S. Embassy. This requires the submission of a complete application on behalf of the petitioning company and proposed employee. The process is as referred to above.

E-3 Visas (for Australian Nationals only)

The E-3 classification is only available to nationals of Australia. The services to be performed in the United States must be in a specialty occupation. The specialty occupation requires theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor's or higher degree in the specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.

FAQs

What are the requirements for an E-3 specialty occupation visa?

To qualify for an E-3 visa, the beneficiary must prove, among other things:
You are a national of Australia;
Have a legitimate offer of employment in the United States;
Possess the necessary academic or other qualifying credentials;
Will fill a position that qualifies as a specialty occupation.

How do I apply for an E-3 visa?

You have the right to apply at any U.S. Embassy or Consulate which processes nonimmigrant visas, but you cannot apply from within the U.S. If you are applying at an Embassy outside of Australia it is recommended you first check to see if they accept E-3 applications.

What is required for submission of an E-3 application at the Embassy?

In addition to completing the Form DS-160 you should provide the following documentation at the time of interview:
Form I-129
A certified Labor Condition Application (LCA) that indicates that it has been filed to support an E-3 classification.
Academic or other credentials demonstrating qualifications for the position.
Job offer letter or other documentation from the employer establishing that you will be engaged in a specialty occupation and that you will be paid the higher of the actual or prevailing wage
If required, before you may commence employment in the specialty occupation, you must have the necessary license or other official permission to practice in the specialty occupation.

What is the period of stay for an E-3?

The E-3 beneficiary is issued an initial period of stay for 2 years. The Beneficiary can extend for an additional 2 years per extension, with no maximum number of extension limitations, with some exceptions.

Can family apply with a principal E-3 applicant? What are they entitled to?

An E-3 nonimmigrant worker’s spouse and unmarried children under 21 years of age are entitled to dependent E-3 classification. The dependent must make a separate visa application, which involves completing the DS-160 form, paying the application fee, and scheduling a visa interview with a U.S. consular officer. Your spouse is entitled to apply for work authorization, but not your children. To apply for work authorization as a spouse of an E-3 nonimmigrant, your spouse must file a Form I-765, Application for Employment Authorization

H-1B Specialty Occupation

The H-1B visa is a non-immigrant visa that permits a company to hire professionals in a specialty occupation.  A specialty occupation is one that requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent. 

The intent of the H-1B provisions is to help employers who cannot otherwise obtain needed business skills and abilities from the U.S. workforce by authorizing the temporary employment of qualified individuals who are not otherwise authorized to work in the United States.

The H-1B visa has a "cap" which is a numerical limit placed on the amount of foreign workers authorized to work in the United States annually under H-1B status.

A maximum of 65,000 visas are issued each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education or its affiliated or related nonprofit entities or a nonprofit research organization, or a government research organization are not subject to this numerical cap.

FAQs

What are the eligibility requirements for the H-1B visa?

The offered position must meet one of the following criteria to qualify as a specialty occupation:

  • Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position; 
  • The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree; 
  • The employer normally requires a degree or its equivalent for the position; 
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.*

For the beneficiary to qualify to accept a job offer in a specialty occupation he/she must meet one of the following criteria:

  • Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;
  • Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation;
  • Hold an unrestricted state license, registration, or certification which authorizes you to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment;
  • Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.
What is the significance of the Labor Condition Application (LCA) to the H-1B filing process?

Prospective specialty occupation employers must obtain a certification of an LCA from the Department of Labor (DOL). This application includes certain attestations, a violation of which can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer. The application requires the employer to attest that it will comply with the following labor requirements:

  • The employer will pay the beneficiary a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for your position in the geographic area in which you will be working.
  • The employer will provide working conditions that will not adversely affect other similarly employed workers. . Notice of the filing of the labor condition application must meet specific requirements related to posting at the place of business.

What is the H-1B Registration Process and Timeline?

H-1B Electronic Registration Process

On Dec. 6, 2019, the USCIS implemented the electronic registration process for the H-1B cap. Prospective petitioners seeking to file H-1B cap-subject petitions, including for beneficiaries eligible for the advanced degree exemption, must first electronically register and then pay the associated $10 registration fee for each beneficiary. 

Timeline (as of 3.2020)

March 1: H-1B registration period opens at noon ET.

March 20: H-1B registration period closes at noon ET.

March 31: Date by which USCIS notifies selected registrants.

April 1: The earliest date that selected H-1B cap-subject petitions may be filed.

What is the H-1b application process?

The prospective employer files an approved Form ETA-9035, Labor Condition Application (LCA), along with the Form I-129, Petition for a Nonimmigrant Worker and requisite supporting documentation.  After the visa is approved, the beneficiary must undergo Embassy visa processing.  

Can I apply for the H-1B visa while in the United States?

If USCIS authorized a Change of Status to H-1B while the visa applicant was in the United States, it is possible that the visa applicant may begin to work for the petitioning company at the start date requested. Once the applicant leaves the U.S. he/she should undergo Embassy visa processing in order to re-enter the U.S. in H-1B status. 

What is the duration of the H-1B visa?

The visa is generally initially issued for 3 years and can be renewed for another 3 years, for a maximum of 6 years full-time employment.  There is an option to “recapture” the time that you are out of the U.S. upon reaching the end of the 6 year period.  There are also additional extensions which may be available if there is an employment based green card process pending in parallel. 

What about my family members? 

Your spouse and children, under the age of 21 will receive H-4 visas, which entitles them to engage in academic study but does not allow for employment. 

The L Visa - Intercompany Transfers

Existing Company: An L-1 visa is a non-immigrant visa that allows for the intercompany transfer of an employee from a foreign company to an existing U.S. company if the companies have a qualifying relationship.  A U.S. company is considered to have a qualifying relationship when the company is either a parent, branch, affiliate or subsidiary of the company overseas which had employed the visa applicant. 

 

New Company: The L-1 classification also enables a foreign company which does not yet have a qualifying U.S. office or has been doing business for less than 12 months, to send a qualifying employee to the United States to establish or work within a new office. 

 

FAQs

 

What are the L-1 employer requirements?

  1. The U.S. Company must have a qualifying relationship with the foreign employer.
  2. Both the U.S. Company and a Foreign Company related by ownership must be doing business during the duration of the Beneficiary’s stay in the United States as an L-1 visa holder. If the U.S. Company is a new company, then it must establish that it will “do business” within the first year of operation.

 

For immigration purposes, doing business is defined as the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

 

What are the L-1 employee requirements?

 

The employee must qualify as a manager/executive (L-1A) or have specialized knowledge (L-1B) relating to the organizations activities.

 

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  

 

The L-1B nonimmigrant classification enables a U.S. employer to transfer a 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 United States. 

 

To qualify, the employee must also meet the following two tests:

 

  1. Worked for the qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
  2. Seek to enter the U.S. to provide service in an executive or managerial capacity (L-1A) or specialized knowledge capacity (L-1B) for a qualifying organization of the foreign employer.

Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.

 

Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization.  It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.  

 

The L-1B nonimmigrant classification enables a U.S. employer to transfer a 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 United States. 

Specialized knowledge means either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.  

 

What if I want to establish a new office, can I apply for an L-1?

 

For foreign employers seeking to send an executive, manager or specialized knowledge employee to the United States to establish a new office, the employer must also show that:

  • The employer has secured sufficient physical premises to house the new office;
  • The employee has been employed as an executive, manager or specialized knowledge professional for one continuous year in the three years preceding the filing of the petition; and
  • The intended U.S. office will support the executive/managerial or specialized knowledge position within one year of the approval of the petition.

 

What is the permissible period of stay in the U.S. in L-1 status?

 

L-1A: Initial applications are granted for three years. Requests for extension of stay may be granted in increments of two years, for a maximum limit of up to seven years.

 

L-1B: Initial applications are granted for three years. A request for an extension of stay may be granted for an additional two years, for a maximum limit of up to five years.

 

New Office L1A/ L1B: Employees entering the United States to establish a new office will be allowed a maximum initial stay of one year. Requests for extension of status may be granted in increments of two years, for a maximum limit respective to the L1A (7 years) or L1B (5 years) regulations.

 

Can the family of an L-1 worker apply with the principal applicant? What are they entitled to?

 

The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. The family of an L-1 worker would receive the L-2 visa classification.

 

A spouse is eligible to apply for work authorization once in the U.S.; and any other family members can attend school.

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