Articles Posted in AskMyLawyer TV

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Overview: 

What is an E-2 visa?

The E-2 treaty investor visa is a non-immigrant visa that allows foreign entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities, for a specified period of two years subject to renewal. Investment activities include the creation of a new business. Foreign nationals must invest a substantial amount of capital in a new or existing business. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.

Who can get it?

Only foreign nationals from treaty nations may apply for the E-2 visa. To find out if your country qualifies, click here.

Level of Investment

Therefore, the level of investment must be such that it is sufficient to justify presence of the treaty national in the United States. The investment must be in an operating business e.g. a speculative investment in undeveloped land would not qualify, whereas an investment in a real estate development project probably would. Also, a substantial part of the investment must have been made prior to applying for E-2 status.

Key Points

  • The investment must be substantial, a standard which depends on the nature of the enterprise. Generally, investment funds or assets must be committed and irrevocable. The funds or assets must be deemed sufficient to ensure the success of operations.
  • The investment must be real and active and not passive; this means that a bank account, undeveloped land or stocks, or a not-for-profit organization will not be sufficient to be considered.
  • The enterprise must be a real, operating commercial enterprise or active entrepreneurial undertaking productive of some service or commodity. Paper organizations, speculative, or idle investments do not qualify as real operating enterprises or active entrepreneurial undertakings. Funds in a bank account are not considered at risk since they have not been committed.

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In this post, we answer one of your most frequently asked questions: how can you find the right immigration lawyer for you?

You need an immigration lawyer, but how do you find the right one? Watch this video to learn all about what you need to know before hiring an immigration lawyer.

In this video we offer several guidelines that can help you decide on the right immigration lawyer for you.

Referrals

First of all, you may want to begin by asking for a referral from your close network of friends or family members who may have already worked closely with an immigration lawyer. Social media is a great resource to ask for recommendations from your network and look up reviews of immigration attorneys in your area. You should make a list of the attorneys you would like to work with and contact their offices to set up a consultation. Most attorneys offer first-time consultations. Consultations are a great opportunity for the client to meet one-on-one with the attorney and see if you have a connection with the attorney and would ultimately like to retain the attorney to work on your particular case.

Flat Fee Considerations

Secondly, it is important for you to find out during your consultation whether the attorney charges a flat rate for his services or whether the immigration attorney bills the client an hourly rate. Most immigration attorneys charge flat rates for their services, but this may not always be the case depending on the type of immigration service you are seeking (for example asylum and removal defense cases may require additional costs). Flat rates are more desirable for clients because you will know up front how much it will cost you to pay for the legal fees associated with your case. This may be a good way to determine whether an attorney is the right one for you.

Come Prepared

Come to the consultation with the attorney prepared. Research the immigration service you are seeking and become informed about the process beforehand so that you can ask the attorney your burning questions and any concerns you may have before starting the filing process. You will want to discuss with your attorney the steps involved in the process, the general plan to achieving success on your application, the hurdles that you may run into during the process, and fallback options if your application is unsuccessful. An attorney who can provide you with the full picture of the legal process will allow you to have greater confidence and peace of mind.

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In this video we discuss the five most common mistakes that employers make when filing a labor certification application also known as PERM.

#1: Mistakes on the ETA 9089 Form

When you prepare an ETA 9089 also known as the PERM application it is very important to check every line on that form before submitting it for certification. Employers and attorneys who are inexperienced in filing for labor certification typically make mistakes on the ETA form including typographical errors, misspellings, or other technicalities resulting in the denial of the labor certification.

Tip: double and triple check this form to make sure it is filed properly

#2: Mistakes in Placement of Advertisements

Employers and their representatives often make mistakes in the placement of ads such as placing those ads during the wrong time frame and with the wrong information, thus resulting in the denial of the labor certification.

Tip: Outline the recruitment schedule before you place any advertisement and ensure that the advertisements are placed on the correct dates and match the information provided on the forms

#3: Related Experience

Employers and representatives who prepare the forms often fail to match the employee’s past experience with the experience required for the PERM job on Section K.  If the employee’s past experience does not seem related to or almost identical to the experience required for the PERM position, the labor department will deny those applications.

Tip: Past experience must match what the person is going to be doing in the future

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In this video we breakdown the labor certification process also known as “PERM.”

Overview:

What is labor certification? Labor certification is required because the government wants to make sure that U.S. workers are not adversely affected by the employment of the foreign national, in this case the beneficiary of the application.

Step one: Filing the labor certification application

The first step in filing a labor certification application is to file a prevailing wage request with the state workforce agency. This request will inform the employer about the wage that must be paid to the foreign national for the work to be performed. Knowledge of the prevailing wage is important because it will affect advertising for the position, the prevailing wage information to be included on the immigration forms, etc. Any mistakes that occur in this step of the process can affect the likelihood of success. It takes several months to receive the certified prevailing wage determination from the labor department. Once the certification is received, the recruitment process can begin.

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In this post, we discuss how you can get a green card through your employer.

Overview:

What does it take to get a green card through a job offer?

There are many ways a foreign national can obtain a green card for example by starting a company in the United States, as an entrepreneur, or demonstrating that they are a person of exceptional ability. However, the most common way to obtain a green card is to obtain a green card through a job offer. Essentially being sponsored by the employer that they are currently working for in the United States or their future employer. This process involves several steps:

  1. The Employer Must Commit to Green Card Sponsorship

The employer must commit to giving you a permanent job offer and be willing to support you in the green card process from start to finish. This is because the employer must not only sign the forms required to petition for the worker’s green card but must also foot the bill including the immigration fees and attorney’s fees. If an employer does not understand his responsibilities in filing for the worker’s green card, delays can result, and in some cases an employer may abandon the green card process altogether. It is very important for an employer to be aware of their obligations at the outset of the application process.

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In this video, we touch on a very common question: what are the possibilities of changing your status after a visa overstay?

If a person comes to the United States on a visa, whether it is a tourist visa or a student visa, there is a duration of stay that is attached to the visa. To determine the amount of time you are allowed to remain in the United States you must obtain your I-94 arrival/departure record from the CBP website.

If you entered the United States on a tourist visa you can typically stay for up to six months, and you can extend your stay for another six months. During your initial authorized stay, you may change your status to another category such as a student or investor visa. Once you have overstayed and essentially lost your legal status, it is very difficult to change to another legal status.

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In this video we discuss how you can get an E-1 treaty trader visa without trading actual goods.

Overview:

  • To qualify for an E-1 Treaty Trader Visa you must be a citizen of a treaty trader country involved in international trade
  • You must be coming to the U.S. to carry on substantial trade or to develop and direct the operations of an enterprise that is a commercial trader with your country of nationality
  • The trade must be conducted principally between the U.S. and the treaty country
  • The U.S. enterprise must conduct more than 50% of its total trade volume with the treaty country
  • The trade may be of a good, commodity, services, or technology

If you are the owner of patented technology in your treaty trader country for example you may qualify for the E-1 treaty trader visa. To qualify for the E-1 visa, you do not need to have actual goods coming from the treaty country to the U.S., in this case the E-1 treaty trader visa can be obtained by showing that a form of technology along with the rights will be developed in the U.S.

This was the exact situation of our client, an Israeli national who owned patented technology for physical exercise equipment, designed and licensed in Israel, but produced in China. To overcome the fact that the equipment was produced in China using Israeli technology, our office made sure to establish that the rights to build the products in China had to be approved and signed off by the company in Israel which owned the patent. In addition, our office strengthened the case by furnishing the agreements between the Israeli company and the manufacturing facility in China, to show that although the product was being manufactured in China, the Chinese facility was in fact controlled by an Israeli designer to ensure quality control and compliance with the Israeli technology owned by our client. Finally, we showed that the majority of the funds to finance the operation was coming from Israel, the treaty trader country, and documented how the product would be coming to the United States.

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The J-1 is a very popular visa that is administered by the State Department, not USCIS.

How does it work and who qualifies for the J-1 Cultural Exchange Visa?

The J-1 visa allows individuals such as students and trainees to come to the United States to receive practical training or participate in an internship program, to gain experience in a particular field of study, and take that experience and skill set back to the country of origin. The practical training or internship program should be one that is not available in the individual’s country of origin. The J-1 cultural exchange visa program allows the foreign national to obtain experience that they would not have otherwise obtained in their home country.

The J-1 visa requires a third-party sponsor that controls and supervises the J-1 program that the foreign national will participate in, while the State Department administers the filing process of the J-1 visa. The third-party sponsor also ensures that the foreign national will return to their country of origin at the conclusion of the cultural exchange program.

What types of training programs can foreign nationals participate in with this visa type?

Foreign nationals may participate in the J-1 cultural exchange visa program as au pairs, scholars, researchers, trainees, and professionals.

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What’s happening with DACA today?

In this post, attorney Jacob Sapochnick talks all about the state of DACA (Deferred Action for Childhood Arrivals) and what you should know as a recipient of DACA.

In September of 2017 the Trump administration announced that it would be ending the DACA program, which allows undocumented immigrants who came to the U.S. as children to live and work in the United States without fear of deportation.

Attorney General Jeff Sessions spoke on behalf of the administration and said that USCIS would not accept new requests for DACA but would allow DACA recipients with work permits expiring between September 2017 and March 5, 2018 to apply for a final 2-year renewal of their status including employment authorization.

This announcement put considerable pressure on Congress to pass legislation before March 5, 2018 to protect Dreamers from deportation.

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Overview: 

What is an E-2 visa?

The E-2 treaty investor visa is a non-immigrant visa that allows foreign entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities, for a specified period of two years subject to renewal. Investment activities include the creation of a new business. Foreign nationals must invest a substantial amount of capital in a new or existing business. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.

Who can get it?

Only foreign nationals from treaty nations may apply for the E-2 visa. To find out if your country qualifies, click here.

Level of Investment

Therefore, the level of investment must be such that it is sufficient to justify presence of the treaty national in the United States. The investment must be in an operating business e.g. a speculative investment in undeveloped land would not qualify, whereas an investment in a real estate development project probably would. Also, a substantial part of the investment must have been made prior to applying for E-2 status.

Continue reading