Margaret W. Wong & Associates - Immigration Lawyers
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Trading, Investing, and Working: Living the American Dream

Overview

The Immigration laws of the U.S. provide temporary and permanent ways of coming to the United States, based on things such as family relations, employment, and protection from harm. This article will focus on employment-related avenues. The focus will be on (1) the E1 and E2 visas, which provide for temporary stay; and (2) the process for obtaining permanent residency through employment.

Temporary Stay: the E1 and E2 visas

The E1 visa is for "treaty traders." There are six overarching requirements for classification under this visa category: (1) the individual is from a country with which the U.S. has an E1 treaty; (2) the non-citizen works for a business that is 50% owned by citizens of a single treaty country who are abroad and are themselves eligible for E1 visas or who are in the U.S. on E1 visas; (3) the applicant is a supervisor, manager, or key employee of the business; (4) the sponsoring business does more than 50% of its trade between the U.S. and the home country; (5) the company engages in "substantial trade;" and (6) the non-citizen intends to leave the United States once the E1 status expires.

It should be noted that the applicant can herself own the business used as the basis for the E-1 visa. In addition, although every Consulate has a different way of determining "substantiality," applicants should think about this requirement in terms of dollar amount, volume, and frequency of trade. The U.S. government seeks to give the E1 visa to individuals who work for companies that have a full-time business which generates visa-worthy amounts of income.

The E-2 visa is for "treaty investors," and has requirements similar to those of the E1. Requirements #1 - 3 noted above are essentially identical between the two categories, and like an E-1 grantee, a non-citizen coming to the U.S on an E-2 visa must have the intent to leave after the expiration of the status. In addition, in order to obtain an E-2 visa, an applicant must show that s/he (or her sponsoring entity) has made a substantial investment in the U.S. business; and that the U.S. business is a bona fide, active entity that is actively engaged in trade or the rendering of services.

The E-1 and E-2 visas are valid for five years, but the actual stay is only valid for up to two years. There are unlimited extensions available, and so it is conceivable that a grantee under either of these visa programs could stay in the United States for a considerable amount of time. Individuals who come on the E1 or E2 visa can bring their spouse and children with them, but only their spouse will be able to legally work.

The first step any E1 or E2 applicant should take is to check the State Department's Foreign Service Manual to make sure that their home country has a current treaty with the United States. South Korea has a treaty for both E1 and E2 visas currently in force. Some countries have only E1 or E2 treaties with the U.S., so it should not be assumed that if a treaty is in force for one visa, a treaty is in force for the other visa, as well.

Individuals who are already in the U.S. may apply for E-1 or E-2 status. However, individuals who are inadmissible, who came on the visa waiver program, who entered illegally, or who are out of lawful status may not apply while in the U.S. In addition, those who entered on C, D, K-1, K-2, J-1, or M-1 visas are not eligible to apply State-side, nor are individuals who are in "transit without a visa." Individuals who leave the United States to apply for an E-1 or E-2 visa abroad should always consult with an attorney, to make sure that their departure from the United States does not trigger entry bars that may have arisen due to accrual of unlawful presence.

Permanent Residence based on employment

Some foreign nationals can apply for permanent residence (also know as a "green card") through their professional activities. The process is a very complex one, and should be done with the assistance of a qualified Immigration attorney. This article is meant to give only a cursory overview of the process.

Every year, the U.S. government gives out 140,000 principal green cards based on employment. Applicants for this coveted privilege are divided into five preference categories, and the process for each category differs. This article will focus on the second and third preference categories.

The second preference category (EB-2) is for professionals holding advanced university degrees or for persons of exceptional ability in the sciences, arts, or business. For those wanting to qualify based on their education, a bachelors degree may suffice, if the applicant also has five years of relevant work experience. Each year, 40,000 green cards are awarded for the EB-2 category.

The third preference category (EB-3) is for professional workers, skilled workers, and unskilled workers. Like with EB-2, 40,000 green cards are awarded yearly for the EB-3 category. Applicants who are deemed "unskilled" will often have to wait longer for a green card to become available, so it is important that the proper classification be made.

Most EB-2 candidates, and all EB-3 applicants are required to have an actual job offer from a U.S. employer and to go through a process called "labor certification." Designed and administered by the Department of Labor (not Immigration), the labor certification process is in place to ensure that foreign workers are not taking jobs away from qualified U.S. workers and/or depressing wages. It should be noted, however, that some applicants may be able to waive out of certain parts of the formal labor certification process, based on their usefulness to the U.S. economy.

The labor certification process is actually done by the U.S. employer, and can be broken down into four basic steps: (1) wage determination; (2) Advertising and recruitment; (3) Handling applications; and (4) applying for labor certification. The first step is to get a determination from the state workforce agency as to what the prevailing wage would be for the job in question. The employer cannot pay less than this wage. Second, the employer must advertise the position, both with the state workforce agency, and with a local paper that would likely be read by applicants for the position being offered. Once applications and/or resumes are received, the U.S. employer is required to interview qualified applicants, and can only reject qualified U.S. candidates for good cause. Once this is completed, and if a qualified U.S. worker has not been found, the U.S. employer actually files for labor certification with the Department of Labor.

If the Department of Labor grants certification, the U.S. employer can then proceed to file a Petition for Alien Worker (I-140) before Citizenship and Immigration Services. It should be noted that neither labor certification, nor the I-140, grants the foreign national the right to reside or work in the United States. The final step for the green card, the I-485 application, must first be completed and approved.

Conclusion

The U.S. is the Land of Opportunity, and is enriched by the entrepreneurial spirit that foreign nationals bring to our shores. Those non-citizens who seek to come to this country for work purposes have several options available to them - both temporary and permanent. Individuals who feel that they may be eligible for these forms of relief should consult with an attorney, so that the strongest application possible can be presented.