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An overview of u.s. immigration law


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An overview of u.s. immigration law

  1. 1. PHYSICAL START-UP IN THE U.S. AN OVERVIEW OF U.S. IMMIGRATION LAW Caroline E. Taylor, Attorney at Law Caroline E. Taylor, LLC 3005 Lookout Place NE Atlanta, Georgia 30305 Tel: (404) 814-4199 email:
  2. 2. IMMIGRATION OVERVIEW • Initial Start-up: Travelling to the U.S. as a Business Visitor - what is permitted and what is not • Temporary Work Visa Categories - when a work visa is required - best visa options • Green Card Processing (Permanent Residency in the U.S.)
  3. 3. B-1 Business Visitor Visa • For business trips in furtherance of international trade which DO NOT involve gainful employment in the U.S. • Visa Waiver Program vs. Visa Processing - Maximum length of stay: 90-day limit under the visa waiver program/6 month limit under the B-1 visa - Extension of Status: no extensions under the waiver program/extensions available under the B-1 visa - Convenience: Must apply for visa stamp at U.S. Consulate for trips exceeding 90 days
  4. 4. B-1 Business Visitor Visa • Permissible Business Visitor Activities - Commercial transactions that do not involve U.S. employment (e.g.,merchant taking orders for foreign goods) - contract negotiation - installation, service or repair of commercial or industrial equipment purchased from company outside of U.S. and/or training of U.S. workers to perform such tasks
  5. 5. B-1 Business Visitor Visa • Permissible Business Visitor Activities - attend meetings and consultations with business associates - litigation - participation in business conventions, conferences or seminars - foreign corporate personnel to set up U.S. subsidiary - independent research (may include interns going to U.S. to observe business practices; if paid internship, interns must be employed by foreign employer and cannot be paid by U.S. employer)
  6. 6. B-1 Business Visitor Visa • Impermissible B-1 purposes: - working on behalf of U.S. company (regardless if paid by foreign company) - performing services in the U.S. - sales expansion efforts - management of U.S. enterprise
  7. 7. B-1 Business Visitor Visa • Factors: - clear intent to depart U.S. at end of stay - seeking admission for sole purpose of engaging in legitimate business activities, evidenced by specific and realistic plans - adequate financial resources - strong business ties to foreign employer - foreign residence that applicant does not intend to abandon - may not be compensated by U.S. source
  8. 8. Temporary Work Visa Categories The Most Common Work Visa Categories • L-1 Visa for Multi-national, Intra-company Transferees - Beneficiary must have one year of Executive/Managerial experience (L-1A) or Specialized Knowledge experience (L-1B) with an affiliate company abroad within the last three years prior to the US transfer -Special provisions for New Office/Start Up Situations • H-1B Visa for Professional Workers - Beneficiary must hold the equivalent to a US Bachelor’s degree through education or professional work experience, and the position must require a Bachelor’s degree -Annual Cap on the number of first time H-1B visa holders
  9. 9. Temporary Work Visa Categories The Most Common Work Visa Categories • E-1/E-2 Treaty Trader/Investor Visas -Sponsor must be Swedish owned and engage in substantial trade with the US; Beneficiary must be Swedish citizen (E-1) -Sponsor must be Swedish owned and make a substantial investment in a US company; Beneficiary must be Swedish citizen (E-2) • H-3, J-1 and Q Visas for Purpose of Career Enhancement and Training • O-1 Visa for Persons of Extraordinary Ability in the sciences, arts, education, business or athletics
  10. 10. Temporary Work Visa-Family Issues • Spouses (married couples only) and children under 21 may accompany the sponsored worker to the U.S. • Spouses in E, L and J visa status ONLY may apply for work authorization in the U.S. • Sponsored Worker should consider green card processing (applying for permanent residency in the U.S.): – if spouse not authorized to apply for work authorization in non-immigrant status (ex. spouse in H or O status) – if children will reach the age of 21 while family in the U.S. (once child reaches 21, they no longer have status as dependent family member in temporary visa status)
  11. 11. Employment Based Permanent Residency “Green Card” Categories • EB-1, First Preference Category: For Intra- company managers: No labor certification required. • EB-2/3, Second/Third Preference Category for Professionals: Labor Certification required to prove no U.S. workers available for the job. Substantial wait time for EB-3 category.
  12. 12. • EB-5, Fifth Preference Category for Investors: Requires personal investment of $1 Million (or $500K for economically targeted areas) in a U.S. business & the creation of at least 10 US jobs – Pending Legislation for EB-6, Startup Visa Category for Investors with $250,000 in venture capital funding in a business that creates at least 10 US jobs.
  13. 13. Immigration Law Summary BEWARE: • Visa requirements are based on voluminous federal regulations and agency interpretations • Applications are often denied due to small mistakes, such as the implication that the employee may remain in the United States for an unlimited period of time • It is therefore, highly recommended, to involve an American attorney specialized in immigration law in the visa application process in order to avoid unnecessary delays and costs