When Immigration Matters

The E-2 or Investment visa is available for investors in a new or existing U.S. business. The investor must play an active role in the development and direction of the business. As with the E-1 visa, the E-2 investor must show that a "substantial" investment or funds are available and committed to the investment. Again, the "substantial" requirement is determined on a case by case basis. Investment in a manufacturing plant would require a higher dollar investment than investment in a consulting business, which may simply require a computer, facsimile and a telephone.

An E-1 or Treaty-Trader visa is for individuals involved in the exchange, purchase or sale of goods, services or merchandise. Services include but are not limited to technology architecture, engineering consulting or accounting services. The trade must principally be between the United States and the treaty country. That is, more than 50 percent of the total volume of international trade must be between the U.S. and the treaty country. Also, the amount of trade must be sufficient to ensure a continuous flow
of international trade between the U.S. and the treaty country.

For most foreign nationals wanting to permanently live and work in the United States, the ultimate goal is to obtain a "green card" or permanent residency status. The most common method of obtaining permanent residency is through sponsorship by an employer or family member.

As of August 7, 2009, approximately 44,900 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption have been filed.

The following cases are exempt from the H-1B cap:

The "J-1" or "exchange visitor" visa is availableto foreign nationals to enter the United States as exchange visitors to participate in government approved exchange programs. First, the prospective employer must establish an approved exchange program. Such program may be sponsored by government agencies, private businesses or educational agencies. The foreign national may then enter the United States for the purpose of doing research, gaining training or studying. Depending on the foreign national's qualifications and the type of exchange program, the J-1 visa is available anywhere from 18 months for most trainees to 42 months for professors and research scholars. Certain foreign nationals may be subject to a two-year home residency requirement at the end
of their stay.

"E" or "treaty" visas are available to persons or entities engaging in trade between the United States and their home country or persons and entities coming to the United States to develop and direct enterprises in the United States in which they are investing substantial amounts of capital. The E-2 category includes individual investors as well as managers, executives, and "essential skills" employees of business entities that make the investment. As a threshold issue, in order for a foreign national to qualify for this visa there must be a trader or investor treaty between the United States and the applicant's home country. For treaty traders, the company set up in the United States must be at least 50% owned by a treaty country national, but the applicant does not have to be an owner of the business. There must be a "substantial" flow of trade (either goods or services) between the U.S. business and the treaty national's home country. The USCIS determines whether the trade is substantial on a case-by-case basis. Factors that may be considered include the nature of the business, the number of transactions, the quantity of trade and the outlay of capital.