General Requirements for H1B Visas

· The foreign national must have a U.S. bachelor"s degree or its equivalent. Experience can be used to make up for two years worth of college, with three years of experience being equivalent to one year of college.

· The position for which the foreign national is being sponsored must be a "specialty occupation" (i.e., it must require at least a U.S. bachelor"s degree or its foreign equivalent for a person to be qualified for the position).

· The sponsoring employer must certify that it will pay the foreign national the prevailing wage for the position for which he is being sponsored, plus other attestations.

· The wages to be paid to the candidate will be in accordance with the SWA guideline and will not adversely affect the wages and working condition of U.S. workers similarly employed

· After the USCIS Approves the Petition
If the foreign national is overseas, the INS will notify the appropriate U.S. consulate. The foreign national can then take the INS" approval notice to a U.S. consulate to obtain a H1B visa in his/her passport. Only then can the foreign national enter the United States.

If the foreign national is already in the United States (e.g., on a F1 student visa), the foreign national may start working for his/her sponsoring employer as soon as the H1B petition is approved.

General Information Regarding L-1 Visas

· To obtain an L1A visa, a foreign company has to open a new U.S. branch, affiliate or subsidiary that is owned primarily by the same people who owns the foreign company; or buy an existing company that is in a similar business as the foreign company. The "affiliated companies" may be offices of the same company, companies in a parent/subsidiary relationship, or affiliate companies with common ownership by a third company or individual or a group of individuals. The key factor in determining whether there is a proper relationship between the foreign company and its U.S. subsidiary is whether the same owners have "effective control" over both companies. Effective control does not necessarily mean 50% stock ownership; some stock ownership, even a relatively small percentage in a large company, and a substantial degree of managerial control can establish effective control.

· Once a U.S. subsidiary is created, the foreign company can "transfer" any "executive" or "manager" of the foreign company to its U.S. subsidiary. An "executive" or "manager" is someone who is in charge of the whole company, or a significant part of its operations (for example, sales or marketing). People with "specialized knowledge" necessary to open or operate the U.S. subsidiary can also transfer to the U.S., but these visas are harder to obtain.

· One major benefit of the L1A Visa is that the L1A foreign national can obtain a permanent residency "green card" once the U.S. subsidiary has existed and been profitable for one year. If the foreign company buys an existing U.S. company, the one year time period includes the years the U.S. company has been in business.

Evidence That the U.S. Company Is, or Will Be, an Established Business

This can be shown by providing the following information:

• ·The Articles of Incorporation and Bylaws for the U.S. company.
• ·Copies of share certificates showing ownership of corporations.
• ·A copy of the U.S. company"s employer tax identification number.
• ·Evidence that the U.S. company has opened a bank account in the United States.
• ·Occupational licenses and other related permits.
• ·A copy of the lease/sublease for the U.S. company"s office and/or warehouse space, and photographs (inside and outside) of this space.
• ·A copy of the U.S. company"s business plan, if available.
• ·An organizational chart for the U.S. company that shows the management structure of the company (i.e., the job title, job description and expected salary of each current and anticipated employee).
• ·The company"s latest financial statements and/or tax returns.
• ·Company brochures, product photographs, price sheets, etc. of goods traded with the U.S.

Evidence That the Overseas Company is Engaged in "Substantial Trade" With the U.S.

This can be done by providing the following information:

• · Invoices to show trade with the U.S.
• · Canceled checks.
• · Contracts, Bills of Sale, Bills of Lading, etc. showing a substantial amount of importing and exporting between the U.S. and treaty country.
• · Evidence That the Foreign National"s Duties Will Be
• · Instrumental in Developing and Operating the U.S. Company
• · A foreign national is not always required to have an active role in the day-to-day operation of a U.S. investment. However, it is always helpful to be able to show this will be the case.

Checklist of information required for E-2 visa

Evidence That the U.S. Company Is, or Will Be, an Established Business

• ·This can be shown by providing the following information:
• ·The Articles of Incorporation and Bylaws for the U.S. company.
• ·Copies of share certificates showing ownership of corporations.
• ·A copy of the U.S. company"s employer tax identification number.
• ·Evidence that the U.S. company has opened a bank account in the United States.
• ·Occupational licenses and other related permits.
• ·A copy of the lease/sublease for the U.S. company"s office and/or warehouse space, and photographs (inside and outside) of this space.
• ·A copy of the U.S. company"s business plan, if available.
• ·An organizational chart for the U.S. company that shows the management structure of the company (i.e., the job title, job description and expected salary of each current and anticipated employee).
• ·Copies of I-9 forms, W-2 forms, copies of checks issued for wages and salaries for employees and/or State wage tax forms.

1. Evidence That the U.S. Company Will Be Sufficiently Funded

This can be done by either placing an initial investment in the U.S. company"s bank account; or by preparing a letter of credit or some other similar form of financial commitment from the foreign company to the U.S. company. This will also show that the foreign national can afford to invest in the U.S. company (i.e., pay the start-up costs associated with the U.S. company such as rent, salaries and other direct overhead expenses).

2. Evidence that the Foreign National"s Investment Is More Than "Marginal "

A "marginal" investment is one in which the foreign national expects to only earn enough to support him/herself (i.e., that the foreign national intends to live off the income from his or her investment). This is one of the most difficult items to show. In order to show that a U.S. investment is not marginal, the foreign national must show that (s)he does not need the monies earned from his or her U.S. investment to pay for his or her day-to-day living expenses. This can be shown that the foreign national has sufficient funds to live off of, such as other investments, other jobs, an inheritance, monies in the bank, etc.

A foreign national can also show that a business is not "marginal" by showing that it historically has or will likely have a positive impact on the U.S. economy (e.g., create jobs for U.S. workers).

3. Evidence That the Foreign National"s Duties Will Be Instrumental in Developing and Operating the U.S. Company

A foreign national is not always required to have an active role in the day-to-day operation of a U.S. investment. However, it is always helpful to be able to show this will be the case.

TN Visa

· The "TN", or "Trade NAFTA", nonimmigrant visa category was created by the North American Free-Trade Agreement ("NAFTA") in 1994. NAFTA provides for the temporary entry of Canadian and Mexican citizens to the United States, for United States and Mexican citizens to Canada, and for United States and Canadian citizens into Mexico. NAFTA covers only citizens, not landed immigrants or permanent residents, of Canada, Mexico, and the United States.

The TN has some significant benefits over the H1B visa. For example:

• -The admission procedure for a TN status is faster because the INS does not have to approve a petition prior to entry into the United States.
• -TN status is only available in one-year increments; however, TN visas do not have a six-year limit on stays in the United States like under the H1B status.
• -There is no annual cap on the number of Canadian TN professionals that may enter the United States.
• -The prevailing wage rules of the H1B program are not applicable to TN status holders.

. However, as will be seen, not all of these benefits are available to Mexican nationals under the law.

GENERAL REQUIREMENTS

The TN visa process is an objective process, unlike the H1B visa process, which is a subjective process. Under the TN visa process, so long as a U.S., Canadian or Mexican national has the requisite credentials, then (s)he may obtain a TN visa. For example, a "Systems Analyst" must have one of the following: (1) a baccalaureate degree, (2) a licenciatura degree, or (3) post secondary diploma/certificate and three years of experience. If they do not have these credentials, then they will not be issued a TN visa. There is very little, if any, discretion available to the immigration officer reviewing the paperwork. This oftentimes leads to problems when a traveler thinks they have the proper credentials, but in reality do not.

WARNING: Many Canadian and Mexican citizens fail to receive a TN visa because the letter of support form the sponsoring employer is not properly drafted. While it appears to be an easy process to obtain a TN visa, this is only true if the Canadian or Mexican citizen has the proper credentials, and those credentials are properly presented. That is why it is still important to hire an immigration attorney before attempting to obtain a TN visa.

TN VISAS FOR CANADIAN NATIONALS

A Canadian national may obtain a TN visa from US Immigration and Naturalization Service ("INS") Free Trade Officers at any Class A port of entry, as well as at a number of international airports. At the port of entry or at the departing airport, the Canadian professional must present the following:

• -Proof of citizenship such as a birth certificate or a passport.
• -Evidence in the form of a job letter that the intended United States activity is one listed under NAFTA.
• -Evidence that the Canadian citizen has the necessary educational qualifications, such as a certified copy of a university degree or an affidavit of work experience.
• -Documentation of the arrangement for remuneration for the United States activity such as a letter from the company specifying the Canadian citizen"s salary.
• -A statement that the purpose of the entry is temporary.
• -A $50.00 USD filing fee (plus $6.00 USD for an I-94 card if entering at a land port of entry).

·Canadian professionals already in the United States on a B1, H1B or L1A visa can apply for a TN visa by filing an application for a change of nonimmigrant status (INS Form I-129) with the Immigration and Naturalization Service"s Nebraska Service Center.

TN VISAS FOR MEXICAN NATIONALS

As previously discussed, a TN visa has many significant benefits over an H1B visa. However, two important TN benefits are not available to Mexican nationals. Unlike a Canadian national, a Mexican national must obtain approval from the INS prior to entering the United States. Also, Mexican nationals are not exempt from the prevailing wage requirements as are Canadian nationals. This means that the sponsoring company must certify to the US Department of Labor ("DOL") that it will pay the prevailing wage for the position in question for the geographical region where the Mexican national will work. These two limitations make a TN visa for a Mexican national equivalent to an H1B visa in terms of difficulty and processing times. For this reason, most sponsoring employers apply for an H1B visa instead of a TN visa for Mexican nationals.

The TN visa process for Mexican nationals consists of two steps. First, a "Labor Condition Application" (or "LCA") must be filed with the DOL. Then a TN nonimmigrant visa petition is filed with the INS. The LCA certifies to the DOL that the sponsoring employer is paying the Mexican national wages that are at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific job site where the Mexican national will be assigned, or the prevailing wage level for the occupational classification in the area of employment, whichever is greater, based on the best information available at the time the application is filed. In addition, the sponsoring employer is making the following attestations:

-That employing the Mexican national will not adversely affect the working conditions of US workers similarly employed;
-That there is not a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment; and
-That the employer, at the time of filing the application, has provided notice of the filing to the bargaining representative, if any, of the persons employed by the employer in the occupational classification and the area for which the Mexican nationals are sought; or, if there is no such bargaining representative, has posted notice of the filing in conspicuous locations at the place of employment.

As part of the LCA process, employers are required to document that they have complied with the attestations listed on the LCA. Although none of this documentation needs to be submitted to the DOL, some of it must be available for public inspection. The rest must be maintained for review in the event of a DOL investigation.

Mexican professionals already in the United States on some other nonimmigrant status may apply for a TN visa by filing an application for a change of nonimmigrant status (INS Form I-129) with the Immigration and Naturalization Service"s Nebraska Service Center under the same process outlined above.