Business and Employment Immigration

Mr. Levine helps his clients get permission to work either on a temporary basis for non-immigrants, or on a permanent basis for immigrants. A foreign national is required to have a specific non-immigrant or immigrant visa, depending on the kind of work to be performed.

Find more information about the various temporary and permanent employment programs below:

 

Temporary Employment Immigration

H-1B Specialty Occupations
The H-1B program allows an employer to employ temporarily a foreign worker in the U.S. on a nonimmigrant basis in a specialty occupation or as a fashion model of distinguished merit and ability. A specialty occupation requires the theoretical and practical application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty (e.g., sciences, medicine and health care, education, biotechnology, and business specialties, etc…).  Current laws limit the number of foreign workers who may be issued a visa, or otherwise be provided H-1B status, to 65,000, with an additional 20,000 under the H-1B advanced degree exemption.
TN-NAFTA (Canadians and Mexicans)
North American Free Trade Agreement (NAFTA) creates special economic and trade relationships for the United States (U.S.), Canada and Mexico. The nonimmigrant NAFTA Professional (TN) visa allows citizens of Canada and Mexico, as NAFTA professionals, to work in the U.S. in a prearranged business activity for a U.S. or foreign employer. Permanent residents, including Canadian permanent residents, are not able to apply to work as a NAFTA professional.

Professionals of Canada or Mexico may work in the U.S. under the following conditions:

  • Applicant is a citizen of Canada or Mexico;
  • Profession is on the NAFTA list;
  • Position in the U.S. requires a NAFTA professional;
  • Mexican or Canadian applicant is to work in a prearranged full-time or part-time job, for a U.S. employer. Self-employment is not permitted;
  • Professional Canadian or Mexican citizen has the qualifications of the profession.
E-1 & E-2 Treaty Traders and Investors
The Treaty Trader (E-1) or Treaty Investor (E-2) visa is for a national of a country with which the United States (U.S.) maintains a treaty of commerce and navigation of who is coming to the U.S. to carry on substantial trade, including trade in services or technology, principally between the U.S. and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital, under the provisions of the Immigration and Nationality Act. Certain employees of such a person or of a qualifying organization may also be eligible for this visa classification.
F-1 & M-1 Students
The F-1 visa (Academic Student) allows a student to enter the United States as a full-time student at an accredited college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program. The student must be enrolled in a program or course of study that culminates in a degree, diploma, or certificate and the school must be authorized by the U.S. government to accept international students.The M-1 visa (Vocational Student) category includes students in vocational or other nonacademic programs, other than language training.
L-1 Intracompany Transfers
Employees of an international company who are being temporarily transferred to a parent, branch, affiliate, or subsidiary of the same company in the United States require Intra-company Transfer (L-1) visas. An international company can use the L-1 visa to send an employee to the U.S. to establish a new parent, branch, affiliate, or subsidiary company. The international company may be either a U.S. or foreign organization.
J-1 Cultural Exchange Visitors & Trainees
The Exchange Visitor Program promotes mutual understanding between the people of the United States (U.S.) and the people of other countries by educational and cultural exchanges, under the provisions of U.S. law. Exchange Programs provide an extremely valuable opportunity to experience the U.S. and our way of life, thereby developing lasting and meaningful relationships. Exchange Visitor categories include:

  • Au pair and EduCare
  • Camp counselor
  • Government visitor
  • Intern
  • International visitor (Dept. of State use)
  • Physician
  • Professor and research scholar
  • Short-term scholar
  • Specialist
  • Student, college/university
  • Student, secondary
  • Summer work/travel
  • Teacher
  • Trainee and flight training
P-1, P-2 & P-3 Athletes and Entertainers
The P-1A (Internationally Recognized Athlete) classification applies to athletes coming to the U.S. temporarily to perform at a specific athletic competition as an athlete, individually or as part of a group or team, at an internationally recognized level of performance.
The P-1B (Member of an Internationally Recognized Entertainment Group) classification applies to entertainers coming to the United States temporarily to perform as a member of an entertainment group that has been recognized internationally as outstanding in the discipline for a sustained and substantial period of time.

The P-2 (Individual Performer or Part of a Group Entering to Perform Under a Reciprocal Exchange Program) classification applies to artists or entertainers coming temporarily to perform as an artist or entertainer, individually or as part of a group, who will perform under a reciprocal exchange program between an organization in the United States and an organization in another country. The visa applicant must be an artist entering the United States through a government-recognized reciprocal exchange program. In addition, the applicant must possess skills comparable to those of the United States artists and entertainers taking part in the program outside the United States.

The P-3 (Artist or Entertainer Coming to be Part of a Culturally Unique Program) classification applies to artists and entertainers coming temporarily to perform, teach or coach as artists or entertainers, individually or as part of a group, under a program that is culturally unique. For a P-3 visa, the artist or entertainer must be coming to the United States either individually or as a group for the purpose of developing, interpreting, representing, coaching, or teaching a unique or traditional ethnic, folk, cultural, musical, theatrical, or artistic performance or presentation. In addition, the artist or entertainer must be coming to the United States to participate in a cultural event or events which will further the understanding or development of the art form. The program may be of a commercial or noncommercial nature.

Permanent Employment Immigration

Employment-based Immigration – EB-1, EB-2 & EB-3
FIRST PREFERENCE EB-1 Workers with an employer sponsor may be eligible for an employment-based, first-preference visa if they have an outstanding professor or researcher, or are a multinational executive or manager. Each occupational category has certain requirements that must be met.

Outstanding Professor or Researcher:
The professor or researcher must demonstrate international recognition for their outstanding achievements in a particular academic field. They must have at least 3 years experience in teaching or research in that academic area. They must be entering the United States in order to pursue tenure or tenure-track teaching or a comparable research position at a university or other institution of higher education.

Multinational Executive or Manager:
The multinational executive or manager must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and the multinational executive or manager must be seeking to enter the United States to continue service to that firm or organization. Their employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.

EMPLOYMENT-BASED IMMIGRATION: SECOND PREFERENCE EB-2
Workers may be eligible for an employment-based, second preference visa (EB-2) if they are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability. EB-2 petitions must generally be accompanied by an approved, individual labor certification from the Department of Labor on Form ETA-9089.

Advanced Degree or its Equivalent:
The job the worker is applying for must require an advanced degree and the worker must possess such a degree or its equivalent (a baccalaureate degree plus 5 years progressive work experience in the field).

Exceptional Ability:
The worker must be able to show exceptional ability in the sciences, arts, or business. Exceptional ability “means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.”

EMPLOYMENT-BASED IMMIGRATION: THIRD PREFERENCE EB-3
Workers may be eligible for this immigrant visa preference category if they are a skilled worker, professional, or other worker. Third preference petitions must generally be accompanied by an approved, individual labor certification from the U.S. Department of Labor on Form ETA-9089. In some cases, the petition may be submitted to U.S. Citizenship and Immigration Service (USCIS) with an uncertified ETA-9089 for consideration as Schedule A, Group I.

Skilled Workers:
Skilled workers are persons whose job requires a minimum of 2 years training or work experience, not of a temporary or seasonal nature. The worker must be able to demonstrate at least 2 years of job experience or training. In addition, the worker must be performing work for which qualified workers are not available in the United States.

Professionals:
Professionals are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and are members of the professions. The worker must be able to demonstrate that they possess a U.S. baccalaureate degree or foreign degree equivalent, and that a baccalaureate degree is the normal requirement for entry into the occupation. The professional must be performing work for which qualified workers are not available in the United States. Education and experience may not be substituted for a baccalaureate degree.

Other Workers:
This subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature. The worker must be capable, at the time the petition is filed on their behalf, of performing unskilled labor (requiring less than 2 years training or experience) that is not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

Self-Sponsored Permanent Petitions - EB-1 & EB-2
EMPLOYMENT-BASED IMMIGRATION: FIRST PREFERENCE EB-1
Workers with an extraordinary ability may sponsor themselves (i.e., do not need an employer sponsor) and be eligible for an employment-based, first-preference visa if they meet certain requirements.

Extraordinary Ability:
The worker must be able to demonstrate extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim. The workers achievements must be recognized in their field through extensive documentation. No offer of employment is required.

EMPLOYMENT-BASED IMMIGRATION: SECOND PREFERENCE EB-2
Workers may also sponsor themselves and be eligible for an employment-based second-preference visa if they meet certain requirements:

National Interest Waiver:
Workers seeking a national interest waiver are requesting that the labor certification from the U.S. Department of Labor be waived because it is in the interest of the United States. Though the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers are usually granted to those who have exceptional ability (see above) and whose employment in the United States would greatly benefit the national interest. Those seeking a national interest waiver may self-petition (they do not need an employer to sponsor them) and may file their labor certification directly with USCIS along with their Form I-140, Petition for Alien Worker.

Special Immigrants – EB-4
Persons may be eligible for an employment-based, fourth preference visa if they are a special immigrant. The following special immigrants are eligible for the fourth preference visa:

  • Religious Ministers and Workers
  • Broadcasters
  • Iraqi/Afghan Translators
  • Iraqis Who Have Assisted the United States
  • International Organization Employees
  • Physicians
  • Armed Forces Members
  • Panama Canal Zone Employees
  • Retired NATO-6 employees
  • Spouses and Children of Deceased NATO-6 employees
Employment Creation (Investor) Petitions – EB-5
The fifth employment based visa preference category, created by Congress in 1990, is available to immigrants seeking to enter the United States in order to invest in a new commercial enterprise that will benefit the U.S. economy and create at least 10 full-time jobs. There are two ways to invest that the applicant may use within the EB-5 category and they are: creating a new commercial enterprise or investing in a troubled business.

Creating a New Business Enterprise

To qualify, the applicant must:

  • Invest or be in the process of investing at least $1,000,000. If your investment is in a designated targeted employment area (discussed further below) then the minimum investment requirement is $500,000.
  • Benefit the U.S. economy by providing goods or services to U.S. markets.
  • Create full-time employment for at least 10 U.S. workers. This includes U.S. citizens, Green Card holders (lawful permanent residents) and other individuals lawfully authorized to work in the U.S. (however, it does not include the applicant, or their spouse, sons or daughters).
  • Be involved in the day-to-day management of the new business or directly manage it through formulating business policy – for example as a corporate officer or board member.

Targeted Employment Area is defined by law as “a rural area or an area that has experienced high unemployment equal to, at least, 150 percent of the national average.”

Troubled Business

To qualify, the applicant must:

  1. Invest in a business that has existed for at least two years.
  2. Invest in a business that has incurred a net loss, based on generally accepted accounting principles, for the 12- to 24-month period before you filed the Form I-526, Immigrant Petition by an Alien Entrepreneur.
  3. The loss for the 12- to 24-month period must be at least equal to 20 percent of the business’s net worth before the loss.
  4. Maintain the number of jobs at no less than the pre-investment level for a period of at least two years.
  5. Be involved in the day-to-day management of the troubled business or directly manage it through formulating business policy as, for example, a corporate officer or board member.
  6. The same investment requirements of the new commercial enterprise investment apply to a troubled business investment ($1,000,000 or $500,000 in a targeted employment area).

Regional Center Pilot Program
EB-5 requirements for an investor under the Pilot Program are essentially the same as in the basic EB-5 investor program, except the Pilot Program provides for investments that are affiliated with an economic unit known as a “Regional Center.” These investments allow for a less restrictive job creation requirement based upon the creation of “indirect” and “direct” jobs.

To qualify, the applicant must:

  1. Invest at least $1,000,000 or $500,000 in a regional center-affiliated new commercial enterprise or a troubled business located within the area of the USCIS designated Regional Center. Regional Centers are defined and discussed further below.
  2. Create at least 10 new full-time jobs either directly or indirectly through the capital investment.

A Regional Center is defined as any economic unit, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. The organizers of a regional center seeking the regional center designation from USCIS must submit a proposal showing:

  • How the regional center plans to focus on a geographical region within the U.S., and must explain how the regional center will achieve the required economic growth within this regional area
  • That the regional center’s business plan can be relied upon as a viable business model grounded in reasonable and credible estimates and assumptions for market conditions, project costs, and activity timelines
  • How in verifiable detail (using economic models in some instances) jobs will be created directly or indirectly through capital investments made in accordance with the regional center’s business plan
  • The amount and source of capital committed to the project and the promotional efforts made and planned for the business project