Visa Waiver Program Bill

In a 407-19 vote on December 8th, the House tightened controls on travel to the United States and will require visas for anyone who has been in Iraq, Iran, Sudan or Syria in the last five years. Exceptions are made for official government visits and military service. The legislation was driven by the recent attacks in Paris, and was signed into law by the president on Friday.

This is a change to the ESTA visa waiver program which allows citizens from 38 countries to travel to the US for stays of up to 90 days without first obtaining a visa. Countries in the program would also be required to share counterterrorism information with the US or face expulsion from the program. 

Currently some 20 million visitors come to the US annually under the visa waiver program. It is unclear how the changes will be implemented, a process which is led by the US Department of Homeland Security.

Frequently Asked Questions on the E-1 Treaty Trader Visa

What is an E-1 visa?

An E-1 treaty trader visa is a nonimmigrant visa which allows foreign nationals from treaty nations to enter the US and carry out substantial trade.

Is the United Kingdom a treaty nation?

Yes, the United Kingdom is an eligible nation for Treaty Trader status under the Convention to Regulate Commerce (Art. 1) entered into force between the United States and the United Kingdom on July 3, 1815. To see whether other nations are eligible for the E-1 visa, please refer to the State Department's current list of E-1 and E-2 treaty nations. 

When you apply for an E-1 visa, what do you show on behalf of the treaty trader? 

You must provide evidence that the treaty trader is entering the United States solely to carry on substantial trade which is international in scope and principally between the US and the foreign state of which he or she is a national. If you are entering as a key employee from the treaty country, you must show you are an executive, supervisor or person whose services are essential to the efficient operation of the enterprise.

How is trade defined?

Under 8 C.F.R. section 214.2(e)(9), 22 C.F.R. section 41.51(a)(7) trade is defined as “the existing international exchange of items of trade for consideration between the US and the treaty country.”

How is “substantial” trade defined?

Substantial trade is an amount of trade sufficient to ensure a continuous flow of international trade between the US and the treaty country. Please note that substantial trade cannot be based on a single transaction, regardless of how protracted or monetarily valuable the transaction may be. The volume of the trade is given greater weight than the value of the exchange but there is no listed minimum requirement for either.

What does “principally between the US and the treaty country” mean?

More than 50% of the total volume of international trade must be between the US and the treaty company. The domestic trade of the business is not counted in the calculation of “more than 50%.”

To speak with one of our experienced attorneys more about an E-1 treaty trader visa or other visa options, please email info@baimmigrationlaw.com or call (0)203 102 7966

The E-2 Visa and Substantial Investment

Why Must the Investment be “Substantial”?

Under the regulations for a an E-2 Treaty Investor, the applicant's investment must be substantial. This is to ensure to a reasonable extent, that the business invested in is not speculative and that it either is, or soon will be a successful enterprise.

These regulations relating to the amount (and character) of invested funds are there to prevent risky undertakings and so that the investment is unquestionably committed to the success of the business.

What is a Substantial Investment?

There is no set dollar figure that constitutes a minimum amount of investment to be considered substantial for E-2 visa purposes. Many clients ask “how much is the minimum that I must invest?” but the answer is that there is no set monetary amount. An investor should contact an attorney that has knowledge in this area in order to determine whether they have a strong E-2 Treaty Investment visa case.

The regulations interpret “substantial” investment as follows:

1. Application of the Proportionality Test – i.e. whether it is substantial in relation to the total cost of either purchasing an established enterprise, or creating the type of enterprise under consideration;

2. The investment is sufficient to ensure the treaty investor's financial commitment to the successful operation of an enterprise; &

3. The investment is of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

What is Meant by the Proportionality Test?

The amount invested must be weighed against either:

• The cost of an established business (generally its purchase price); or

• The cost of a newly created business i.e. the actual cost needed to establish such a business to the point of being operational.

We do this by assessing the percentage of investment in relation to the cost of the business. For instance, if the two figures are the same (investment and cost/value), the E-2 Treaty Investor has invested 100% of the needed funds for the business. This is “substantial.”

In general, the lower the cost of the business, the higher a percentage of investment is required. We can compare this to a highly expensive business, which would require a lower percentage. Unfortunately there are no bright line percentages that exist in order for the investment to be considered substantial. If for example we are dealing with a small business, with a value of $100,000 or less, generally we are looking to see an investment of 100% or higher.

How do you Determine the Value of a Business?

The value (cost) of a business is dependant on the nature of an enterprise. For example, a manufacturing business will likely cost a lot more to purchase or operate compared to a consulting business or an ongoing commercial enterprise.

This suggests that the cost of a business per se are not independently relevant or determinative of qualifying for E-2 Treaty Investor status, so long as the other E-2 visa requirements are met, the investor should still qualify for the E-2 visa. However, please consider that a relatively low monetary investment, despite potentially meeting the “proportionality” test, may not meet the other "substantial" elements, as well as the other requirements of an E-2 Treaty Investor under the regulations.

The E-2 Treaty Investor's Commitment to Successful Operation

The E-2 visa unit at the US embassy will be assessing the extent of the investor's commitment to the successful operation in view of the amount invested. It makes sense that if an investor invests more funds, they are more committed and have taken a higher risk. The capital, however, cannot be merely sitting there in the US business bank account. The embassy wants to see that as much of the funds have already been committed.

This is just a brief look at one of the requirements for an E-2 Treaty Investor per the regulations, 9 FAM 41.51. It is advised that you always consult a licensed US attorney regarding your particular investment and case.

Please call our office for an initial complimentary evaluation of your case on +44 (0)203 102 7966 or send an enquiry via our website.

The L-1B Visa - Do I have Specialized Knowledge?

Our firm warns clients of the ambiguity that surrounds the L-1B visa. The way that US Citizenship and Immigration Services (USCIS) interprets “specialized knowledge” has been somewhat inconsistent, leading to burdensome Requests for Evidence and high denial rates.

Recent L-1B Policy Memorandum

USCIS recently released a policy memorandum on August 17, 2015, on L-1B Adjudications. It is intended as a guidance by USCIS in adjudicating L-1B petitions (filed on or after August 31, 2015), specifically clarifying how L-1B employers may demonstrate that an employee possesses specialized knowledge.

What is the Purpose of an L-1B Visa?

As stated in the memorandum:

“Congress created the L-1B classification so that multinational companies could more effectively transfer foreign employees with specialized knowledge to their U.S. operations, enhancing such companies’ ability to leverage their workforces. Employees who work in any industry and serve in any type of position may be classified as L-1B nonimmigrants, so long as the position described in the L-1B petition requires specialized knowledge and the beneficiary is found to possess such knowledge. Creation of the program reflected Congress’ concerns with meeting the workforce needs of multinational employers operating in an increasingly global marketplace...”

Statutory Law and Regulations

Under the Immigration and Nationality Act (INA), a beneficiary is deemed to have specialized knowledge if he or she has: (1) a “special” knowledge of the company product and its application in international markets; or (2) an “advanced” level of knowledge of the processes and procedures of the company. INA 214(c)(2)(B).

The corresponding Code of Federal Regulations (CFR) similarly defines specialized knowledge in terms of “special” or “advanced” knowledge: [S]pecial knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. 8 CFR 214.2(l)(1)(ii)(D). 

What does the new Memorandum say on Specialized Knowledge?

In the memorandum, USCIS notes that “special” and “advanced” are not defined under the statute or regulations. They apply the dictionary definition of these words to the statutory and regulatory text, so that an employee seeking L-1B classification should possess:

1. Special: knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets that is distinct or uncommon in comparison to that generally found in the particular industry.

2. Advanced: Advanced knowledge or expertise in the petitioning organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the employer.

An employee's knowledge need not be proprietary in nature or narrowly held within the petitioning organization to be considered specialized. It should be noted, however, that if the organization hires a number of employees with the alleged specialized knowledge, USCIS are going to question whether it is indeed “specialized.”

USCIS has further identified a non-exhaustive list of factors that adjudicating officers should consider in determining whether the employee has specialized knowledge:

• The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization’s U.S. Operations;

• The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position;

• The beneficiary’s claimed specialized knowledge normally can be gained only through prior experience with the petitioning organization;

• The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education);

• The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the petitioning organization;

• The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace.

Off-site Employment and L-1B Extensions

The memorandum refers to Off-site L-1B Employment. In cases where the employee will be based off-site, the employer must demonstrate that it retains the right to control the employee and that the employee will be using the specialized knowledge detailed in the petition.

In L-1B Extension cases, USCIS officers should re-examine a finding of L-1B eligibility only where it is determined that: (1) there was a material error with regard to the previous approval for L-1B classification; (2) there has been a substantial change in circumstances since that approval; or (3) there is new material information that adversely impacts the petitioner’s or beneficiary’s eligibility.

Conclusion

The memorandum is clearly a step in the right direction. The fact of the matter is, however, that it is futile how much emphasis the memorandum places on the importance of providing employers with the opportunity to transfer specialized knowledge employees, in order to create growth and competitiveness in the U.S. Market. Only time will tell. It will be a happy day when we are no longer faced with such convoluted Requests For Evidence and high denial rates.

If you have any questions regarding the L-1B visa, or alternatives, please contact our office on +44 (0)203 102 7966

Athletes, Artists and Entertainers - What U.S. Visa is Required?

Prior to Congress passing the Immigration and Nationality Act (INA) in 1990, athletes, artists and entertainers, were only admissible to the U.S. on H-1B Specialty Occupation Visas. Our firm has previously blogged in regards to the issues with this visa category, so it's a good job the INA introduced O & P Visas.

What are O & P Visas?

These visas are specifically applicable to the above industries. The O-1 visa may also be applicable to those in the science, business and education fields.

For both O & P Visas, the applicant requires a U.S. company, organization or agent to petition for the visa. We must also ensure that a written advisory opinion from the appropriate union or management group e.g. Screen Actors Guild (SAG), is submitted with the application.

O-1 “Extraordinary” ability or achievement

There are two types of O-1 visa:

O-1A: Sciences, Education, Business or Athletics;

O-1B: Arts, Motion Picture and Television.

The applicant must demonstrate extraordinary ability/achievement by sustained national or international acclaim and must be coming temporarily to the U.S. to continue work in the area of extraordinary ability/achievement.

What is meant by “Extraordinary” Ability or Achievement?

Athletes: This means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.

Artists: This means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

Entertainers: in the motion picture or television industry, the applicant must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.

The threshold is very high and it is important that you discuss your eligibility for the O-1 visa with an experienced immigration attorney. Certain criteria must be met in order to demonstrate “extraordinary” ability and achievements.

O-2 Visas may be available for Individuals accompanying an athlete or member of the entertainment industry to assist in a specific event or performance.

P-1 Visa for Athletes, Entertainers and artists and their essential support personnel

The threshold for athletes under the P-1 visa is lower than the O-1A. Individual athletes may also be initially admitted to the U.S. For up to 5 years (compared to 3 years on the O-1). Sports teams, however, are only admissible for the period necessary to complete the competition or performance, generally 6 months. Athletes still need to show that they are at an “internationally recognized” level.

Individual entertainers are not admissible under the P-1 visa and entertainment groups (like sports teams) are only admissible for the duration of a specific event only.

The area is not clear-cut and it is essential that the athlete, artist or entertainer consults with a professional prior to applying for any of these types of visas. It could be that an O or P visa is not necessary nor appropriate. Some professional and amateur athletes and entertainers are admissible on B-1/B-2 visas, or even under the visa-waiver program (ESTA).

Our firm has experience with both O & P Visas. Please complete our contact form to schedule a detailed consultation in this matter or call us on +44(0)203 102 7966

Will the H-1B Cap be Met this Week?

The H-1B Specialty Occupation visa has a high demand and a very low supply. If you receive a job offer from a new US employer, this is generally the only visa you will be eligible for in order to work in the US. Currently there are only 65,000 of these visas available each year, with the exception of an additional 20,000 that are set aside for those who have obtained an advanced degree in the US.

What does this mean?

It means that if these visas run out, then there are no more of them available until the following April (2017), for work to commence in October 2017. This is unless Obama issues an Executive Order on this issue, increasing the cap, or immigration reform is finally passed. Both scenarios seem unlikely at this moment.

Immigration Reform Proposal by the Senate

Almost 2 years ago the Senate passed proposed immigration reform, but this is unfortunately not agreed by the House, nor has anything been passed or discussed in a while. The Bill specifically refers to the H-1B cap, and proposes an increase from 65,000 to 110,000. The visas available for US-based advanced degree holders will increase from 20,000 to 25,000; however, there is an additional requirement that these 25,000 advanced degree graduates must be in a science, technology, engineering, or mathematics field.  In total, there would be a proposed 135,000 H-1B visas available the first year that the law is enacted compared to the current 85,000.

What happened in April 2014?

Last year it was announced that the US Citizenship and Immigration Services (USCIS) had received sufficient H-1B petitions by April 7th, i.e. by this date last year. This included the 20,000 visas set aside for holders of a US advanced degree.

172,500 petitions were received. A computer-generated process randomly selected the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS rejected and returned filing fees for all cap-subject petitions that were not selected. Over 50% of the petitions were rejected.

What is likely to happen this time around?

Following 2014 and 2015  fiscal years, it is predicted that the H-1B cap will be met this week and go to a lottery. Not an ideal situation for a many US companies and potential employees.

Are there alternative visas to the H-1B?

It depends. If you currently work for an organization, which is affiliated to the US company that wants to hire you, you may be eligible for an L1 Intra-company transfer visa. You would need to work for the foreign company for at least 12 months, but even if they hired you now, you would be eligible for a transfer before an H-1B next year! You may also want to avoid the risk of the H-1B lottery.

If the company that wants to hire you in the US has at least 50% shareholders that hold the same nationality as you, you may be eligible as an E-2 employee, assuming the organization has invested a substantial amount of capital. For example, if you are a UK national, and the US employer’s company has shareholders with 50%+ UK nationals, you may qualify as an E-2 Employee. The 12 month requirement does not apply to E-2 Employees, so you could be newly hired.

If you missed the H-1B boat, but the US Company really wants you to work for them, you could always work remotely, and travel on ESTA/Visa-Waiver for eligible business travel. If you are required in the US for a specific project, you may also qualify for a B-1 in lieu of H-1B visa, which is a special annotated business visa.

For further advice on H-1B, L-1, E-2, ESTA/Visa-waiver eligible business travel, and B-1 in lieu of H-1B, please contact our office to schedule a free consultation.