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Counseling individuals and companies of all international backgrounds with immigration matters to living and working in the United States
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OLSEN LAW FIRM: AN INTERNATIONAL LAW PRACTICE WITH A FOCUS ON IMMIGRATION LAW
Visa Waiver Program (VWP) Under the Visa Waiver Program (VWP), nationals of the following countries can enter the United States without a visa as business or tourist visitors for a period of up to 90 days:
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The Visa Waiver Program should not be used by individuals who may need to stay for more than 90 days because no extensions or changes to another visa category are permitted. After 90 days, Visa Waiver Program visitors must leave the United States before entering the country again either pursuant to the Visa Waiver Program or another visa status. All VWP travelers, regardless of age or type of passport used, must present a machine-readable passport. In addition, depending on when VWP travelers’ passports were issued, other passport requirements apply: • Nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, the Republic of Korea, and the Slovak Republic require passports with an integrated chip containing the information from the data page (e-Passport). • Nationals of other VWP countries: - Machine-readable passports issued or renewed/extended on or after 10/26/06: passports must have integrated chips with information from the data page (e-Passport). - Machine-readable passports issued or renewed/extended between 10/26/05 and 10/25/06: passports must have digital photographs printed on the data page or integrated chips with information from the data page. - Machine-readable passports issued or renewed/extended before 10/26/05: no further requirements. Notice: Effective July 1, 2009 all Visa Waiver Program (VWP) emergency or temporary passports must be electronic passports (e-Passports) to be eligible for travel to the United States without a visa under the VWP. This includes VWP applicants who present emergency or temporary passports to transit the United States. U.S. Customs and Border Protection may exercise discretion at the ports of entry for cases in which VWP applicants are traveling for medical or other emergency reasons. A VWP national arriving in the United States with a non-compliant passport, for other than emergency travel reasons, may be detained for further processing and/or denied admission.
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Business or Pleasure Visitors (B-1/B-2) Generally, individuals who wish to enter the United States quickly and for brief periods of time for business, pleasure or medical purposes must first obtain a visa, such as a nonimmigrant visa for temporary stay. The visitor visa is a nonimmigrant visa for persons desiring to enter the United States temporarily for business (B-1) or for pleasure or medical treatment (B-2). The presumption in the INA is that every visitor visa applicant is an intending immigrant. Therefore, applicants for visitor visas must overcome this presumption by demonstrating that: - The purpose of their trip is to enter the U.S. for business, pleasure, or medical treatment;
- They plan to remain for a specific, limited period; and
- They have a residence outside the U.S. as well as other binding ties which will insure their return abroad at the end of the visit.
B-1 and B-2 visitors cannot engage in active employment in the United States. Funding for the trip and stay of the B-1 and B-2 visitors cannot derive from employment inside the U.S. B-1 business and B-2 tourist visas can be issued by a United States embassy for a period of up to 10 years for multiple entries. Business or tourist entries pursuant to the visa can be for an initial period of up to six months with six month extensions thereafter.
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Treaty Traders and Treaty Investors (E-1/E-2) The United States has entered into reciprocal treaties with countries which permit foreign nationals to obtain E-1 and/or E-2 visas in order to develop and direct businesses in the United States. A foreign national may apply for an E-1 or E-2 visa directly at a U.S. consulate, or may apply for change of status in the United States to E-1 or E-2 status. An E-1 visa is for an E-1 Treaty Trader, and an En-2 visa is for an E-2 Treaty Investor. Some basic requirements for obtaining an E-1 Treaty Trader visa are the following: - There must be a qualifying treaty with the country of the beneficiary's nationality.
- The beneficiary and the company must possess the nationality of the treaty country.
- The activities of the business must constitute "trade".
- The trade must be "substantial".
- The trade must be principally (at least 50%) between the United States and the treaty country.
Some basic requirements for obtaining an E-2 Treaty Investor visa are the following: - There must be a qualifying treaty with the country of the beneficiary's nationality.
- The beneficiary and the company must possess the nationality of the treaty country.
- There must be an investment, or the active process of investing, in a business that must be a real and operating commercial enterprise.
- The investment must be "substantial" and more than a marginal one solely for earning a living.
Below is a list of E Visa Treaty Countries |
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Albania (E-2) Argentina (E-1/E-2) Armenia (E-2) Australia (E-1/E-2) Austria (E-1/E-2) Azerbaijan (E-2) Bahrain (E-2) Bangladesh (E-2) Belgium (E-1/E-2) Bolivia (E-1/E-2) Bosnia and Herzegovina (E-1/E-2) Brunei (E-1) Bulgaria (E-2) Cameroon (E-2) Canada (E-1/E-2) Chile (E-1/E-2) China (Taiwan) (E-1/E-2) Colombia (E-1/E-2) Congo (Brazzaville) (E-2) Congo (Kinshasa) (E-2) Costa Rica (E-1/E-2) Croatia (E-1/E-2) Czech Republic (E-2) Denmark (E-1) Ecuador (E-2) Egypt (E-2) Estonia (E-1/E-2) |
Ethiopia (E-1/E-2) Finland (E-1/E-2) France (E-1/E-2) Georgia (E-2) Germany (E-1/E-2) Greece (E-1) Grenada (E-2) Honduras (E-1/E-2) Iran (E-1/E-2) Ireland (E-1/E-2) Israel (E-1) Italy (E-1/E-2) Jamaica (E-2) Japan (E-1/E-2) Jordan (E-1/E-2) Kazakhstan (E-2) Korea (South) (E-1/E-2) Kyrgyzstan (E-2) Latvia (E-1/E-2) Liberia (E-1/E-2) Lithuania (E-2) Luxembourg (E-1/E-2) Macedonia, the Former Yugoslav Republic of (FRY) (E-1/E-2) Mexico (E-1/E-2) Moldova (E-2) Mongolia (E-2) |
Morocco (E-2) Netherlands (E-1/E-2) Norway (E-1/E-2) Oman (E-1/E-2) Pakistan (E-1/E-2) Panama (E-2) Paraguay (E-1/E-2) Philippines (E-1/E-2) Poland (E-1/E-2) Romania (E-2) Senegal (E-2) Singapore (E-1/E-2) Slovak Republic (E-2) Slovenia (E-1/E-2) Spain (E-1/E-2) Sri Lanka (E-2) Suriname (E-1/E-2) Sweden (E-1/E-2) Switzerland (E-1/E-2) Thailand (E-1/E-2) Togo (E-1/E-2) Trinidad & Tobago (E-2) Tunisia (E-2) Turkey (E-1/E-2) Ukraine (E-2) United Kingdom (E-1/E-2) Yugoslavia (E-1/E-2) |
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Specialty Occupation Professionals (H-1B) The H-1B visa is available to college-educated professionals. A few of the basic requirements for H-1B status are: - A job offer in a "specialty occupation," which generally means that the position requires a college degree or equivalent.
- The employee meets the requirements of the "specialty occupation," which generally means that the employee possesses a college degree, a foreign equivalent, or a combination of education and experience equivalent to a college degree.
- A Labor Condition Application (LCA) approved by the Department of Labor.
An H-1B petition may be valid initially for up to three years, and may be extended for another three years. Extension beyond six years is permitted in certain circumstances for foreign nationals applying for permanent resident status. A foreign national already in the United States in another valid status may simultaneously apply to change status to H-1B on the I-129 petition. For example, a foreign student in F-1 status working pursuant to a grant of optional practical training may apply to change status to H-1B.
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Temporary Non-Agricultural Workers (H-2B) H-2B visas are available for workers performing certain nonagricultural short-term, peakload, and seasonal employment. The H-2B visa is granted in one-year increments, and can be extended up to a maximum of three years. Below are some of the requirements which must be must to obtain H-2B approval: - The prospective employee has an offer of "temporary employment" from a United States employer.
- The prospective employee intends to return home after the expiration of the visa.
- There are no qualified Americans for the job.
- The Employer must demonstrate that the need for the employee falls under one of the following categories: One-Time Occurrence; Recurring Seasonal Position; Peakload Demand; and Intermittent/Occasional Position.
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Intracompany Transferees (L-1A/L-1B) Executives, managers, and specialized knowledge employees of multinational organizations are eligible for L-1 visas. There are no numerical limits on L-1 visas. Executives and managers may be admitted for up to seven years with L-1A status and specialized knowledge workers for five years with L-1B status. The regulations permit only a one-year L-1 visa for a foreign national employed by a new company doing business less than one year in the United States, but the new company apply for a three year extension at the end of the one-year L-1 status. Few Basic requirements for an L-1 visa are as follows: - The employee must have one year of continuous employment experience abroad within the three years preceding the application;
- The employment abroad must have been with a parent, branch, affiliate, or subsidiary of an existing or new U.S. entity;
- The employment abroad and in the U.S. must be in a managerial, executive, or specialized knowledge capacity.
Specialized Knowledge (L-1B) capacity is defined as "special 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."
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Extraordinary Ability Petitions (O-1) O-1 nonimmigrant status is available to individuals who have "extraordinary ability" in the sciences, arts, education, business, or athletics. Extraordinary ability can be established through evidence of receipt of a major, internationally recognized award or by submission of at least three of the following forms of documentation: - Documentation of receipt of nationally or internationally recognized prizes or awards for excellence.
- Documentation of membership in associations that require outstanding achievements of their members.
- Published material in professional or major trade publications or major media about the applicant and his or her work in the field.
- Evidence of participation on a panel, or individually, as a judge of the work of others in the field.
- Evidence of original scientific, scholarly, or business-related contributions of major significance.
- Evidence of authorship of scholarly articles in the field, in professional journals, or other major media.
- Evidence of employment in a critical or essential capacity for organizations that have a distinguished reputation.
- Evidence of a high salary or other remuneration for service.
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Temporary Religious Workers (R-1) The religious worker visa category is for foreign nationals coming to the United States to work in a religious capacity. The initial period of admission for a religious worker is three years, and an extension may be authorized for up to two additional years. A few of the requirements for the R-1 Visa are the following: - Applicant must be a member of a religious denomination having a bona fide nonprofit religious organization in the United States.
- The religious denomination and its affiliate, if applicable, are exempt from taxation, or the religious denomination qualifies for tax-exempt status.
- The applicant has been a member of the denomination for two years immediately preceding the filing of the application.
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