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Contact a dependable and experienced immigration lawyer at Lorenzana Law Firm, P.C. in Austin for comprehensive client service in business visa and immigration matters involving overseas employees, managers, or investors. We also assist individuals and families with green card questions and entry visas for relatives.
With major immigration legislation pending before Congress, we project that compliance with new work visa and business immigration standards and procedures will present significant challenges for many companies who depend on foreign nationals for technical, professional, and administrative support. While we cannot predict the particular shape of the new visa requirements as they might be enacted, we monitor the legislative developments closely and we will be fully prepared to advise our clients on their new responsibilities, especially for what we expect will be substantial new burdens of immigration compliance and enforcement.
There is little question that the administrative responsibilities for sponsorship of foreign nationals, I-9 data collection and reporting, and Social Security Administration verification will be at least as cumbersome as they are today under any revisions to the current business immigration scheme. At Lorenzana Law Firm, P.C., our experienced immigration attorneys can help your company establish and implement sound procedures for managing nonimmigrant visa applications, reporting, and compliance.
Our experience with overseas companies and multinational corporations allows us to provide comprehensive immigration client service to businesses of all sizes. Additionally, if your company is alleged to have violated any USCIS laws or regulations, we can defend you in any employer enforcement action involving reporting or compliance violations.
We also help families with application procedures and resolving problems related to relative immigrant and nonimmigrant visas. For additional information about the scope of our business and family immigration practice, contact one of our attorneys in Austin.
U.S. Immigration Basics
Whether you plan to come to the United States for a short visit or a permanent stay, your first step is to apply for a visa.
Many people think they can show up at a U.S. embassy or border post, describe why they’d make a good addition to U.S. society, and be welcomed in. Unfortunately, this is the exact opposite of how the U.S. immigration system works.
Instead, people who want to come to the U.S., whether temporarily or permanently, must determine whether they fit into eligibility categories for either "permanent residence" (a green card) or for a temporary stay ("nonimmigrant visa").
Then they must submit an application -- in fact, often a series of applications -- to one or more of the U.S. agencies responsible for carrying out the immigration laws. These include U.S. Citizenship and Immigration Services (USCIS), which has offices across the United States, and the U.S. Department of State (DOS), which manages consulates and embassies around the world.
What Permanent Residence (a Green Card) Is
If you want to be able to make your permanent home in the United States, you'll need what is called "permanent residence," or a "green card." Green card holders can live and work in the U.S. and travel in and out, with very few restrictions (though they can't vote, and can be deported if they abuse their status).
Family members of U.S. citizens make up the largest number of green cards issued each year. Others are issued to investors and workers who have been petitioned by U.S. employers or have special skills. Still other categories have a humanitarian basis, such as refugee or political asylum status (which can lead to a green card), for people who are fleeing persecution.
What a Temporary (Nonimmigrant) Visa Is
People who want to come to the United States for a limited time need what is called a "nonimmigrant” visa. This lets them participate in specified activities (such as studying, visiting, or working) until their visa runs out. Students and businesspeople make up the largest groups of nonimmigrant visa holders. Nonimmigrant visas are also issued for tourists, exchange visitors, and workers with some kind of specialty that is lacking in the U.S. workforce. For more information, see Applying for a Nonimmigrant (Temporary) Visa.
Exception: Visa Waiver Program
A visa is not necessary for short-term visitors from one of the Visa Waiver Program countries listed at http://travel.state.gov. You can come to the U.S. for up to 90 days for business or pleasure purposes if you're from one of these countries. You will, however, need to present a machine-readable passport. Also, beware: The ease of your entry is balanced by the ease with which you can be kicked out -- you automatically give up many rights and benefits when traveling without a visa.
To enter on a visa waiver, simply present yourself, your passport, and your ticket home to the officers you'll meet upon arrival. If you come by land through Canada or Mexico, you'll also be asked for proof of sufficient funds to pay for your stay.
Applying for Immigration Rights
After figuring out what type of visa or green card you’re eligible for, you'll need to figure out how to get it. Most people (with the occasional exception of Mexicans and Canadians) must obtain a visa at a U.S. consulate before departing for the United States. If you’re already in the United States legally, you may be able to apply to “adjust" your status to permanent resident, or "change” your status to another type of visa.
For more on the appropriate application process, see either Applying for a Nonimmigrant (Temporary) Visa or Applying for a Green Card.
Where to Find the U.S. Immigration Laws
Your possibilities for a visa or green card are set out under U.S. federal law. Being "federal," the law is the same across the United States, unlike state laws, which can vary by state. If you want to read the U.S. immigration laws -- which very few people actually want to do -- they’re found in Title 8 of the U.S. Code, or in the Immigration and Nationality Act (I.N.A.) In addition, information on how USCIS intends to carry out these laws is found at Title 8 of the Code of Federal Regulations (C.F.R.). The DOS regulations are at Title 22 of the C.F.R. The CFR can be searched at the Government Printing Office website.
The trouble is that even lawyers have trouble researching the U.S. immigration laws -- they're considered to be the most convoluted and easily misunderstood portions of all U.S. law. But if you have a specific reference to a section that you'd like to read for yourself, by all means look it up, then seek professional help if you need it.
Your best bet for getting any professional help with your immigration situation is to hire an experienced immigration lawyer. Ask friends or local nonprofits for referrals or go to the website of the American Immigration Lawyers Association (AILA).
Whatever you do, don't go straight to USCIS for advice. The people who staff their front desk are not all well trained, and if they give you wrong information, they take no responsibility, even if it causes your deportation or destroys your chances of immigrating. This happens!
Please consult with one of our immigration attorneys on how to obtain many different visas, including the K-1 visa for fiancés, the B-1 and B-2 business and tourist visas, the H-1B, H-2B, and H-3 visas for temporary specialty or agricultural workers, the L-1 visa for intracompany transferees, the E-1 and E-2 visas for treaty traders and investors, the F-1 and M-1 visas for students, the J-1 visa for exchange visitors, or the O, P, or R visas for temporary workers, and how to get a green card through a family member, through the Diversity Visa Lottery, or as an asylee or refugee.
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The Risks of Lying to the U.S. Government
Will my wife's past visa overstays hurt her chances of getting a green card?
One of the worst things you can do to your chances of getting a visa or green card is to lie, either on paper or during an interview with a U.S. border or other immigration inspector. Lies can have both immediate consequences, such as not being able to enter the U.S., and long-term consequences, such as not being able to get a green card -- ever.
- Example One:
Francois, a French citizen, applies at the U.S. embassy in Paris for a tourist visa. He fears he will not be allowed to enter the U.S. as a tourist if he reveals that he has a girlfriend in New York. He states in his application that he will be visiting various friends. When he arrives at JFK Airport in New York, an immigration inspector finds a letter in his luggage from his girlfriend, in which she says she is looking forward to his long visit. Francois is put on the next flight home, and not allowed to return for five years.
- Example Two:
Assume that Francois's immigration inspector does not find the letter from his girlfriend and allows him to enter the country. After he arrives, Francois and his girlfriend decide to marry. He files an application for permanent residence with USCIS. It forwards his application to the U.S. consulate in Paris for review. This reveals that he lied about his plans. To obtain permanent residence, Francois will have to argue that USCIS should overlook his previous lie and allow him to stay. If he loses, he can be denied permanent residence and forced to leave the country.
Who Can Be Kept Out
No matter what eligibility category you fall into -- whether you’ve married a U.S. citizen, received a job offer, or been accepted to a school -- the U.S. has the right to say no. And not just because there’s something wrong with your application. The immigration law contains a list of things, like crimes and certain diseases, that makes someone "inadmissible.”
Treaty Traders and Investors (E’s)
The E categories are designated for aliens engaged in international trade or investment between the United States (U.S.) and the aliens’ countries of nationality, provided the U.S. has an appropriate treaty relationship with the foreign country.
What is a “Treaty Country”
A treaty country is a foreign state with which a qualifying Treaty of Friendship, Commerce, or Navigation or its equivalent exists with the U.S. A Treaty Country includes a foreign state that is accorded treaty visa privileges under section 101(a)(15)(E) of the INA by specific legislation. A listing of countries with whom the U.S. currently has treaties can be downloaded from the State Department’s Foreign Affairs Manual (select 9 FAM 41.51 Exhibit 1 to obtain the correct list).
Note: There is no petitioning process for the E categories. E-nonimmigrant classification is granted through an application process. If outside of the U.S., the alien may apply for an E-1 visa on his or her own behalf directly to a U.S. consular office abroad. If the alien is inside the U.S., the Form I-129 and E supplement is used to apply for a change of status, extension of stay, or change of employment. Applications for E-1 or E-2 status may be filed only at the Texas or California Service Centers. However, if an alien currently in E-1 or E-2 status is requesting a change of status to another nonimmigrant classification, the application for change of status must be mailed to one of the USCIS Service Center with jurisdiction over the new requested classification.
Qualifications for Treaty or Trade Investor Visa
For the alien to visit the U.S. temporarily for trading or investing purposes, the requirements outlined at 8CFR 214.2(e) must be met. Potential applicants are also encouraged to consult Department of State regulations at 22CFR 41.51. A brief summary of the requirements for E-1’s and E-2’s follows:
Dependents (spouses and unmarried children under 21 years of age) of an E-1 or E-2 nonimmigrant will be admitted under same classification as the principal. The dependent spouse and child(ren) are not required to have the same nationality as the principal alien.
Effective January 16, 2002, spouses of E-1 treaty traders or E-2 treaty investors who have been admitted to the United States under sections 101(a)(15)(E) of the Act are authorized employment without restrictions. Further, an unmarried dependent son or daughter of an E nonimmigrant employee of the Taiwan Economic Cultural Representative Office (TECRO) is authorized employment without restriction. In order to obtain work authorization, the E nonimmigrant spouse must submit:
- Form I-765, Application for Employment Authorization, to the Service Center with jurisdiction over the dependent spouse’s place of residence (concurrently filed applications with Form I-129 petitions for the principals may only be filed at the appropriate service center);
- a filing fee of $340;
- evidence of the E nonimmigrant principal’s current status;
- the dependent spouse’s and the principal’s Form I-94 Arrival-Departure Records as evidence of admission or change of status; and
- a copy of the Form I-797 approval notice for the E nonimmigrant principal’s petition, if available.
E-1 Treaty Trader
The E-1 classification is authorized for a national of a country with which the United States has a commercial treaty, who is coming to the U.S. solely to engage in trade of a substantial nature principally between the United States and the alien’s country of nationality. The trade involved must be international exchange (successfully negotiated contracts binding on all parties) of items of trade between the U.S. and a treaty country. Title to the trade item must pass from one treaty party to the other.
If the alien is inside the U.S., the I-129 is used to apply for a change of status, extension of stay, or change of employment. This classification does not require a petition for employment if the alien is outside of the U.S. If outside of the U.S., the alien applies for an E-1 visa on his or her own behalf directly to a U.S. consular office abroad.
Application Document Requirements
The application must be filed with the appropriate fee payment, and evidence that:
- The applicant is a national of a country with which the U.S. has the requisite treaty or agreement;
- The activity constitutes trade as defined at 8 CFR 214.2(e)(9);
- The trade is of a substantial nature (i.e. an amount of trade sufficient to ensure a continuous flow of international trade items between the U.S. and the treaty country);
The trade conducted by the alien is principally trade between the United States and the treaty country of which the alien is a national. Trade is deemed to be principally between the U.S. and treaty country when over 50% of the volume of international trade conducted by the treaty trader is between the U.S. and treaty country of the treaty trader’s nationality;
If the applicant is not the principal trader, he or she must be employed in an executive or supervisory capacity, or possess special qualifications that make the applicant’s services essential to the successful and efficient operation of the enterprise.
Ordinary skilled or unskilled workers do not qualify. The applicant intends to depart the U.S. upon the expiration of E-1 status. (However, an application for initial admission, change of status, or extension of stay in E classification may not be denied solely on the basis of an approved request for permanent labor certification or a filed or approved immigrant visa preference petition.)
The employee has the same nationality as the principal alien employer.
The alien principal employer is an enterprise or organization at least 50% owned by persons having the nationality of the treaty country.
E-2 Treaty Investor
The E-2 classification is authorized for a national of a country with which the United States has a commercial treaty, who is coming to the United States solely to direct and develop the operations of an enterprise in which he or she has invested, or is actively involved in the process of investing, a substantial amount of capital.
If the alien is inside the U.S., the I-129 should be used to apply for a change of status, extension of stay, or change of employment. This category does not require a petition for employment if the alien is outside of the U.S. In that case, the alien applies for this category on his or her own behalf directly to a U.S. consular office abroad.
The investment involved must place lawfully acquired, owned, and controlled capital at commercial risk with a profit objective, and be subject to loss if the investment fails.
Application Document Requirements
The application must be filed with the appropriate fee payment, and evidence that:
- The investor is a national of a country with whom the U.S. has the requisite treaty or agreement;
- The alien (or in the case of an employee of a treaty investor who seeks classification as an E-2, the owner of the treaty enterprise) will direct or develop the enterprise.
- The alien must demonstrate that he controls the enterprise by showing ownership of at least 50% of the enterprise, by possessing operational control through a managerial position or other corporate device or by other means;
- The investor has invested in or is actively in the process of investing in the enterprise;
- The investment is substantial, i.e. sufficient to ensure the investor’s financial commitment to the successful operation of the enterprise and big enough to support the likelihood that the investor will successfully direct and develop the enterprise;
- The investment enterprise is not a marginal enterprise;
- If the applicant is not the principal investor, he or she must be employed in an executive or supervisory capacity, or possess skills that are highly specialized and essential to the operations of the commercial enterprise. Ordinary skilled or unskilled workers do not qualify.
- That the applicant intends to depart the U.S. upon the expiration of E-2 status.
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