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Business Immigration Utah

We have successfully helped a variety of clients  ith employment and business-based immigration cases, ranging from H-1Bs, EB-1, EB-2, EB-3,  ERM, L-1 visas, and E-2 visas. H-1B VISA

The H-1B nonimmigrant visa allows United States  employers to hire qualified nonimmigrant aliens to work temporarily in a specialty occupation. 

How to Qualify

  • To qualify for a H-1B visa, a foreign worker has to meet the criteria laid out below: Specialty Occupation: The position must qualify as a “specialty occupation,” which is one that demonstrates knowledge in a specific specialty attained through a U.S. bachelor’s degree (or equivalent to a U.S. bachelor’s degree) or higher.

    Examples of a specialty occupations include but are not limited to scientists, engineers, and teachers. Degree: The minimum degree requirement is a bachelor’s degree. The degree must be equivalent to the minimum requirements for the position, it must be common to similar  occupations in the same field of work or industry, and the employer usually requires a such a degree or higher degree for the position. One will have to show proof of a United States  Bachelor’s degree, a foreign degree deemed equivalent to a United States bachelor’s or higher.

  • Must Be Sponsored by an Employer: A foreign worker must be sponsored, or petitioned, by a specific company in order to qualify because the employers are required by USCIS to file the petition for the visa on behalf of the foreign worker. Because H-1B’s are job specific and employer specific, any change in employment requires a new H-1B petition.
  • Length of an H-1B
    The length of an H-1B is three years but can be extended to six years, which would require another filing of an H-1B petition. If an H-1B holder would like to continue to work in the United States after six years, they must leave and remain outside the United States for a year before they are eligible to apply for another H-1B visa. However, in some scenarios, the H-1B holder may be able to extend his/her status beyond the six years, while remaining in the U.S., if he/she has an approved I-140 petition.

There is a limit of 65,000 H-1B visas issued per year. For those who have a U.S. master’s degree or higher, there are 20,000 additional visas. When USCIS receives more petitions than the allotted amount, they hold a lottery to determine which petitions they will process. This is a completely random process. First, a lottery is held for the 20,000 cap for those with advanced degrees. Then, a second lottery is held for the additional 65,000 petitions. If an advanced degree petition was not selected through the lottery, it will be entered into the general lottery for a second chance to be chosen among the 65,000. Petitions not chosen or approved the application materials and fees are sent back to the employer.

EB-2 AND EB-3 CATEGORIES: EMPLOYMENT-BASED IMMIGRATION
The EB-2 and EB-3 categories are ways for employers to petition for employees to get lawful permanent residency (green cards) to fill positions in their companies that they cannot find qualified U.S. workers. This process does require employers to go through a specific recruiting process to prove to the Department of Labor and the USCIS (U.S. Citizenship and Immigration Services) that they attempted to recruit but were unsuccessful. This recruiting process is known as the Program Electronic Review Management process, better known as the PERM process. There are a variety of steps involved with the PERM process, such as getting a prevailing wage determination and going through very specific recruiting requirements to prove that the employer was unable to find qualified U.S. workers to fill the position. There must be a good faith effort made by the employer to attract any available U.S. workers. There are mandatory advertisements the employer is required to publish regardless of the type of position. In some cases, the recruiting requirement may be waived.

EB-2
To qualify for an EB-2 visa, one must be a member of qualified professions holding an advanced degree or the equivalent. Individuals who have an exceptional ability in science, art, or business that benefits the American economy, cultural or economic interests may also eligible. If applicants are applying for a National Interest Waiver, there may be an exception to these requirements.

This category generally requires that the applicant have an advanced degree, and that the job itself requires and advanced degree, such as a master’s degree or higher. If a person only has a bachelor’s degree but has five years of progressive work experience in the field, that could fulfill the advanced degree eligibility requirement. The degree must be related to the profession the employee is seeking to gain the EB-2 visa for. If the applicant has an exceptional ability without an advanced degree, they also may be eligible. Exceptional ability means the applicant has a degree of expertise significantly above the normal experience expected in the science, business, or art fields.

An individual may qualify to have the Labor Certification waived due to U.S. interest. The waiver is usually for those who have exceptional ability and whose employment would benefit the US. One may self-petition without an employer. This is the same as exceptional ability category, but they request the labor certification is waived because it is in the interest of the United States. These individuals may also self-petition and do not need to have an employer sponsor them. An example is a physician who agrees to work in an area where there is a shortage of healthcare professionals. Other examples include a biomedical engineer who is a leader in his field for research on cardiac arrests that lead to death and a computer, or an IT specialist who was sought after due to his Air Force and military experience.

EB-3
The EB-3 category is intended for “skilled workers,” “professionals,” and “other workers.” An example of a “professional” in the EB-3 category would be a profession that normally requires at least a U.S. bachelor’s degree or its equivalent. An example of a “skilled worker” would be a position that requires at least 2 years of training. For example, if a restaurant is looking for a specialty chef who has at least 2 years of chef experience, the employer could petition for this type of worker for a green card.

The job being offered by the employer must be a full-time, permanent job offer and a labor certification submitted by the employer.

Special Classes
There are a few additional categories of workers where the process is different. Most of the time these classes are for occupations where there is a shortage of professionals or workers in a certain industry or profession. All the classes need to have a full-time permanent job offer.

Schedule A Waivers

Schedule A Waivers are for occupations, both skilled and unskilled, where there is a shortage. In these cases, the application is exempt from a normal labor certification process. There must be evidence aligning with the Department of Labor regulations which require the job be posted for a minimum of ten consecutive days.

Schedule B Waivers
Schedule B Waivers are for occupations, both skilled and semi-skilled, where there is not a shortage of workers, but the applicant is a more qualified worker due to language skills, business affiliations or unique qualifications. The labor certification for these type of applications is very difficult.

Physical Therapists and Registered Nurses
Physical Therapists and Registered Nurses are exempt from having to go through the labor certification process if they meet the requirements. Physical Therapists do not need to be licensed but must meet the requirements and qualifications for a license in the state where they will be employed. Registered Nurses are those who are licensed to practice in the state they reside or where they plan to reside and are graduates from an accredited school in The United States or Canada.

Family Members of EB-2 and EB-3 Applicants
The employee’s spouse and unmarried children under 21 years old will also be able to get their green cards.

If you have questions about any of these processes, call our offices today to schedule a consultation to speak to one our experienced immigration attorneys.

L-1 Visa
There are two types of L-1 visas. They are the L-1A and L-1B. The L-1A Intracompany Transferee nonimmigrant visa classification that allows a U.S. employer to transfer an employee in a managerial or executive position from a foreign office to the United States. This can also include a foreign company that doesn’t have a U.S. based company yet, but wants to set up an office in the U.S. The foreign company can send an executive to the U.S. under the L-1A visa with the purpose of establishing a U.S. based company.

The L-1B nonimmigrant classification allows a U.S. employer to transfer an employee who has specialized knowledge of the company from its foreign office to its office in the U.S. This classification also allows the foreign company to send a specialized knowledge employee from its foreign office to help establish the U.S. based affiliated company.

L-1 visas are only for transfers within the same company but are good options for foreign companies wanting to expand into the U.S. Often, after the seven-year limit, many L-1A employees apply for permanent residency through the EB1-C program (multinational executives employed by the same company who want to continue their services in the U.S. may apply and do not have to file a Labor Certification), making it one of the fastest ways to gain a green card. However, those with the L-1B classification must go through the labor certification before getting a green card. There are no annual limitations of the number of L-1 visas available each year and there are no minimum or maximum wage requirements.

E-2 Investor Visa
For those who have the entrepreneurial spirit, or who have ever thought about opening a business in the U.S., which would allow the person to stay for an indefinite amount of time, the E-2 investor visa may be a good fit. As long as the business continues to run, the investor can continue to renew her E-2 visa and remain in the U.S. However, the investor must have an intent to return to her home country when the E status ends. The E-2 visa allows a person from a foreign country to come to the U.S. and engage in entrepreneur activities due to a treaty between their home country and the U.S. The treaties were originally intended to facilitate friendship and commerce between the U.S. and the treaty country. There must be a treaty in place between the U.S. and the foreign worker’s country to qualify for an E visa. Specifically, the E-2 Investor visa allows a foreign worker of a treaty country to make investments and who will be controlling those investments within a U.S. company. It also allows a company owned by nationals of the treaty country to invest in a U.S.company.

Qualifications of a Treaty Investor

  • Be a national of a country that has a treaty of commerce and navigation with the U.S. Seek to enter the U.S. to develop and manage the business/investment by establishing at least a 50 percent or more ownership or control through a managerial position or related position.
  • The investor has invested or is actively in the process of investing (i.e. has signed a lease, money for the business has been placed in an escrow account) a substantial amount of capital in a bona fide enterprise in the U.S. A bona fide enterprise is a real, active, and operating commercial or entrepreneurial undertaking that produces services or goods for profit.
  • The investor is in a position to develop and direct the business. The investor must be in a managerial type position and cannot simply be an employee of the business.
    Treaty Countries
  • There must be a treaty between the U.S. and one of the following countries to qualify for the E-2 visa: Albania, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahrain, Bangladesh,

Belgium, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Chile, China (Taiwan), Colombia, Congo (Brazzaville), Congo (Kinshasa), Costa Rica, Croatia, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Ethiopia, Finland, France, Georgia, Germany, Grenada, Honduras, Iran, Iceland, Italy, Jamaica, Japan, Jordan, Kazakhstan, Korea (South), Kyrgyzstan, Latvia, Liberia, Lithuania, Luxembourg, Macedonia, Mexico, Moldova, Mongolia, Morocco, Netherlands, Norway, Oman, Pakistan, Panama, Paraguay, Philippines, Poland, Romania, Senegal, Singapore, Slovak Republic, Slovenia, Spain, Sri Lanka, Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, and Yugoslavia. You can also find the list here: https://travel.state.gov/content/travel/en/us-
visas/visa-information-resources/fees/treaty.html