Temporary Visas, Permanent Residence

The U.S. Immigration system divides immigration to the U.S. in two major segments: Temporary Visas and Permanent Residence petitions. Temporary visas are, well, temporary - they have a certain date in which they expire and the person has to return to his/her home country. Permanent Residence does not expire as long as the person continues living in the U.S., and can lead to U.S. citizenship in a few years.

Temporary Visas

The most common types of temporary visas to come to the U.S. are:

The Visa Waiver program - available to countries participating in the visa waiver program, allows its citizens to enter the U.S. without the need to apply for a visa at a U.S. consulate prior to traveling. Upon arrival, the visitor traveling without a U.S. visa will invariably receive a 90-day authorization to stay. Such stay authorization cannot be extended for any reasons. The foreign visitor will lose the right to visit the U.S. under this program if he/she overstays the 90 days or works while in this status.

The Visitors Visa - B1 for visitors on business, B2 for visitors on personal trips (vacation, visit family, etc.). Generally, visitors classified under the B1-business category will receive a 30-day stay unless they request a longer stay due to the length of the business they have to attend to in the U.S. The B-1 classification for visitors on business has many applications. It can be used for an employee of a foreign company to work in the U.S. (for the foreign company) for limited periods of time (widely used by multinational companies transferring employees to the U.S. for short projects or assignments). It can also be used by foreign athletes competing in the U.S., by domestic workers (nannies, maids) accompanying foreign families visiting or staying in the U.S. temporarily on business or for work-related reasons, or even by foreign domestic workers of U.S. citizen families living abroad, on vacation in the U.S.

Visitors classified under the B-2 classification will generally receive a 6-month authorized stay. Under both classifications, it is possible to request an extension of time or request change to a new type of stay, like an employment or student stay, before expiration of the time originally authorized.

Employment Visas - There are many types of employment visas.

The two major ones are:

The H-1B Visa for Foreign Professionals - Allows a U.S. employer to employ a foreign professional temporarily for up to 6 years. Requires the foreign professional to either hold a Bachelor degree or the equivalent to a degree in work experience. If the foreign professional does not have a college degree, but has been working in a specific field for a long time, it is possible to substitute the college education with work experience. For each year of college not completed, the person must have 3 years of progressively more responsible work experience in the field. Therefore, if the highest educational level the foreign professional reached was a Highschool degree, this person would need to have at least 12 years of progressive professional experience to qualify. If two years of college education were completed, another 6 years of work experience in the field is needed. And so on.

This visa is the most widely used by foreign professionals working in the U.S. - very common in the technology field (computer analysts, programmers, graphic designers) it can be used for a variety of positions. Sales and Administrative Managers, Marketing personnel, Medical administrators and researchers, Teachers, Pre-School Teachers, etc.

As now, with the opportunity to request expedited review with the "Premium Processing" option, such visas can be approved in less than 15 days, it is feasible for a foreign professional to present his/her resume to U.S. corporations, await visa approval, and start working without having the U.S. employer wait too long to have the employee authorized to work for the company.

The L-1 Visa for Intra-Company Transferees - this is also a very widely used visa. It is used to transfer executives and managers of foreign corporations to a subsidiary or branch office in the U.S. It is also very used for smaller foreign business owners to expand their businesses to the U.S. and enter the U.S. market more directly. The business owner can transfer himself, or one of his managers or executives to the U.S. to directly oversee the start-up of the new company here. It is often easier than trying to enter the U.S. market with only the foreign corporate entity, as with a U.S. corporation many advantages can be obtained: bank lines of credit, supplier lines of credit, elimination of middle-men and additional operational costs, risk management - with your own personnel overseeing your business deals in the U.S., there is less risk of miscalculations due to miscommunication or lack of knowledge of your foreign business, objectives and procedures. And, as the new company does not have to be in the same line of business as the foreign corporation, it is also a means to diversify the areas in which the foreign business or business owner is investing, for future expansion. This is also the only temporary visa with its own class of qualification for permanent residence ("multinational executive or manager") , after the U.S. company's 1st anniversary, and if the company achieved sufficient structure in the U.S.

The E-2 Visa for Investors - available to citizens of countries who have a commerce, friendship or trade agreement with the U.S., this visa allows a foreign investor to invest in a business venture in the U.S. and receive a visa to stay here and oversee this business. The investment must be at risk, (not passive like investing in the U.S. stock market) in a new or existing business venture, and the investment capital must come from the investor. Such capital cannot be obtained through a loan on the business "invested" in. This visa also requires the investor to have a separate source of income, apart from the new investment he or she is making in the U.S. If the investor has a foreign business, it is almost always more advisable to analyze the possibility of petitioning for the L-1 intra-company visa instead of the E-2 visa, due to the easier path to apply for permanent residence.

There are many other types of temporary visas, such as the F-1 International Student Visa, the O-1 Exceptional Ability Visa, the P-1 visa for performers and artists, the H-3 visa for trainees and others which we will not describe fully today.

Permanent Residence Petitions

There are two types of permanent residence petitions, each subdivided in different classifications:

1. The Permanent Residence Petition initiated by a family member - we published a full description of the four categories of petitions possible by family members in our last edition - please visit this paper's web page for a copy of the last issue at www.floridareview.com or www.elpopular.com.

2. The self-(started) Petition for Permanent Residence - for professionals with exceptional or extraordinary ability with international recognition - sometimes difficult to qualify for, it is mostly used by renowned scientists, professors, athletes, researchers and artists. It does not necessarily require a job offer in the U.S.

3. The employment-based Permanent Residence Petition - initiated by U.S. employers, it is subdivided in several categories:

a. Multinational executive or manager transferee - this category requires basically the same parameters as the temporary L-1 visa, but is permanent. Qualifications only vary from the L-1 visa in one point: permanent residence under this category is only available when the U.S. subsidiary or branch office is already operating for a full year. That means that, if the foreign professional is being transferred to start up the U.S. company, the transfer will have to be initially temporary under the L-1 visa.

b. Outstanding Professors, Researchers and Professionals with advanced degrees - similar to the self-petition under extraordinary ability, the parameters are lower, but require a U.S. employer be the petitioner, and a permanent job offer be made to the foreign professional.

c. Skilled Workers - not necessarily for college graduates, enables a U.S. company to petition for permanent residence on behalf of a foreign worker the company needs. The position being offered to the foreign worker must first be reviewed by the Labor Department. After issuance of Labor Certification, the permanent residence petition is filed with the Immigration Service. College, Technical level and trade professionals with no formal education such as carpenters, cooks, secretaries, bookkeepers, and other can qualify for permanent residence under this category.

d. Unskilled Workers - similar to the skilled worker petition for permanent residence, it is available to people with very little work experience in unskilled jobs such as nannies, babysitters, etc. As this category has a lower priority, it can sometimes become backed up by many years before permanent residence is granted under this classification.

The above is just a generic and brief snapshot of the U.S. immigration system. There are many considerations to be made before decisions regarding options are made. Always seek the advice of a competent attorney before making any decisions!

by Robert A. Kravitz, Esq.

Law Offices of Kravitz & Guerra, P.A.

(305) 372-0222

Letters to Attorney@Kravitzlaw.com