By Albert Lu
With the right knowledge, business investment vehicle, and strategic planning, most Latin American investors, business owners, executives/managers, and in some cases essential-skill employees with specialized knowledge/training, can come to work and live in the United States based on valid nonimmigrant visas while accompanied by their dependent family members. In some instances, if the long-term business/investment need is present and ongoing, the same persons may in time also pursue employment-/investment- based immigrant options and qualify for lawful U.S. permanent residency status – more commonly known as "green card." This article is a brief introduction of these visa options and how to pursue them.
First Phase: Visitor Visa Required for Coming to the United States
Today, nationals from Latin American countries need valid passports in order to come to the United States. The passports should be machine-readable and valid for at least six months past the date of entry in order to ensure admission at the ports of entry, and ideally the validity should cover their intended duration of stay in the United States.
In addition to valid passports, all Latin American nationals must also possess valid U.S. visitor visas issued by U.S. consulate overseas in order to be admitted into the United States as temporary visitors for business (B-1) and/or pleasure (B-2). Some Mexican nationals with frequent needs to enter/exit the United States may be issued Border Crossing Cards that take the place of standard B-1/B-2 visas stamped into one’s passport. Visitors admitted into the United States are all issued Forms I-94 upon entry that state their status and duration of allowed stay – generally between two weeks to six months depending on: their stated purpose/need for visiting, their visa validity/expiry date, and their pattern of prior visits.
Due to overall overwhelming demand and statistics of prior immigration violators (visitor who choose to overstay/remain in the United States illegally), as well as issues with insufficient and/or fraudulent documentation, nationals from certain Latin American countries may find it difficult to apply for and receive valid U.S. visitor visas from their governing U.S. consulate. This tends to be a problem especially for younger (under 21) and older (retirement-age) persons, as well as adult persons without strong established ties to their home country that demonstrate an intent to return home upon completion of visit. Most established business owners/professionals and successful entrepreneurs seeking to invest in the United States should already possess or be able to receive U.S. visitor visas without much difficulty.
Visitor visa and entry in B status allows investors to come to the United States and seek/research potential investment opportunities, survey potential sites/companies, consult/meet business partners, and negotiate business leases and contracts. It also lets business professionals attend conferences, meetings, trade shows and other related functions and events. In some cases, B-1 visitors are allowed to come and receive training from U.S. companies – but such training must not result in gainful employment services rendered for the benefit of any U.S. company. In short, B-1/B-2 visitors are not allowed to work for U.S. entities nor receive payment for employment services rendered while visiting the United States – other than expense allowance/reimbursement for related travels. And because unauthorized employment in the United States can bar a person from making future entries, pursuing U.S. visas, or later qualifying for immigration benefits such as green card status, one must be careful not to abuse their visitor visa/status, which includes not overstaying their issued I-94 duration of stay.
Second Phase: Employment-Eligible Temporary Nonimmigrant Visa/Status
In order for Latin America nationals to work/live in the United States as business investors, executive/managers, or professional employees, they most likely need to pursue either an H-1B, L-1 or E-1/E-2 visa. Certain Mexican nationals working in specific NAFTA-designated professions can also qualify for a TN visa. Other nonimmigrant work-eligible visa options may exist based on specialized circumstances.
1. H-1B Visa for Specialty Occupation Employees:
H-1B visa is commonly used by U.S. companies to sponsor/hire professional employees, who are university graduates, to perform in specialty occupation positions (such as engineering, computer science, accounting, … etc.) that require specific college-degreed background. While H-1B is a popular option for employing foreign nationals already present in the United States as a student or intern, due to its annual numerical cap and related timing restrictions, with the exception of Chilean who enjoy a specialty treaty/status and are accorded special H-1B cap privileges, H-1B visa is not an option favored by overseas-based persons/companies seeking to bring its local employees into the United States.
2. L-1 Visa for Intracompany Transferee:
The most commonly used visa for business owners/professionals with established business operations overseas who seek to come to the United States to start up and/or work for a related U.S. company is the L-1 visa. Basically, If the incoming individual has either served in an executive or managerial role (L-1A) or as a specialized-knowledge employee (L-1B) overseas for at least one year at an eligible foreign company whose scope, size, business operation data are documented and meet the basic L-1 immigration criteria, and the foreign company desires to transfer the individual to work in the United States for a related U.S. business entity (ownership commonality between the two transferring entities must be at least 50%), the person can qualify to apply for an L-1 visa in order to come and work in the United States.
As with the H-1B option above, an L-1 petition by a sponsoring U.S. entity must first be filed with and approved by USCIS (formerly INS), then upon approval, the individual would consular process for an L-1 visa. At that point the dependent spouse and minor children (under 21 years of age) could join and apply for matching L-2 dependent visas. Through subsequent status renewal filings, L-1 status can easily be maintained for five to seven years, and for L-1 persons who are only present in USA intermittently, the status can even be prolonged indefinitely. Keep in mind the two business entities involved in the L-1 intracompany transfer (overseas and USA) simply need to be related in ownership interest (by at least 50%), not necessarily in line-of-business. Lastly, the sponsoring business entities must be viable and possess certain scope – if one is to qualify as a transferring executive/manager, there must be worthwhile business activities and subordinate personnel to oversee/manage.
3. E-1/E-2 Visa for Treaty Trader & Treaty Investor
For nationals of certain qualified countries with existing treaty of commerce and navigation (or a treaty of bilateral investment) with the United States, the E-1 visa allows them to come to the United States for the purpose of carrying on substantial trade, while the E-2 visa allows them to come to develop and direct a business enterprise in which they have invested, or are actively in the process of investing, a substantial amount of capital. Over recent years, while E-1 has restricted its qualifying criteria (trade conducted must be principally between the two countries), E-2 Treaty Investor visa remains a popular and useful option for qualified investors and business entrepreneurs interested in living and doing business in USA – especially so if the person does not operate an existing business overseas that could serve as basis for the L-1A option described above.
For Latin American persons not already in the United States, initial E-2 visa application must go through their governing U.S. consulate. The consulate will closely scrutinize all details related to the E-2 investment, as well as the visa applicant, including: tracing the origin and tracking the transfer of invested capital; judging if the visa applicant serves in a qualifying E-2 function (investor, executive/manager, or essential-skill employees – must possess same nationality as the investor), and ensuring the E-2 investment is bona fide, substantial, non-marginal, committed & at-risk. If approved, E-2 visa validity can vary from one to five years depending on reciprocity rules, and following entry, individual E-2 status duration is typically granted for two-years each time while allowing for indefinite renewals – a distinct advantage over most other employment-eligible nonimmigrant visa options. Whether an investment vehicle and business enterprise qualifies for E-2 visa would require individual assessment, and its long-term renewal viability also requires sound legal strategy and ongoing business planning.
Currently, Latin American countries/nationals that are eligible for E-2 visa include: Argentina, Bolivia, Chile, Colombia, Costa Rica, Ecuador, Grenada, Honduras, Jamaica, Mexico, Panama, Paraguay, Suriname, and Trinidad & Tobago.
Third Phase: Permanent Residency ("Green Card") in the United States
Lawful U.S. Permanent Resident status, commonly known as "green card," allows foreign persons to reside permanently in the United States. Some investors, entrepreneurs and business professionals seek green card status in the United States not necessarily/primarily for themselves, but for the benefit of their accompanying dependent family members.
There are various employment-/investment-based immigrant options through which one can achieve green card status. For instance, an eligible L-1A intracompany executive/managerial transferee can apply as an EB1-3 (Employment-Based First Preference – Third Category) Multinational Executive/Manager, and be able to achieve green card status very quickly (within 1-2 years of first arriving in the United States). Other special employment-based first preference categories exist for: Extraordinary Ability Persons (EB1-1), and Outstanding Researchers/Professors (EB1-2). These EB1 categories tend to yield fastest green card results, but they also carry high standards of qualifications.
Other slower employment-based green card sponsorship options (EB2 & EB3) also exist, they generally involve an extra step called PERM Alien Labor Certification – an application filed by the U.S. sponsoring employer to demonstrate that no minimally qualified U.S. worker exist within the local job market for the wanted position following careful and prescribed advertisement and recruitment steps. This extra step takes time and effort to complete, especially when local unemployment rate is high, but they may be the best option available for those foreign national employees who do not qualify under heightened EB1 criteria.
Lastly, many savvy investors may have heard of the EB5 "Million Dollar Investment Green Card", where a person who invests $1,000,000 in a new business enterprise within the United States will, in time, be able to achieve green card status for self and family members. In fact, eligible EB5 business enterprises that lead to local job creation in government-designated Targeted Employment Area or Rural Areas may only require $500,000 of initial capital investment. Moreover, EB5 can also take the form of individuals investing in various government-approved "Regional Centers" created locally to pool together multiple EB5 individual/investment funding and apply them into a larger business enterprise with ongoing job-creation capability – sometimes involving real estate purchases and subsequent home constructions, etc. As with any business investment vehicle, the risks inherent in such options can vary greatly, especially if dependent on particular Regional Center’s executive direction and/or management team.
While EB5 does exist and continues to serve as a viable option for investment-based green cards, ever since its inception, EB5 adjudication processing time have varied greatly and even drag on interminably based on individual case merit – often fraught with fraud. In addition, new regulations governing EB5 continue to evolve – the key of which is stricter documentation proving the full-time employment of 8 to 10 U.S. employees created by the individual EB5 investment, as well as the duration required for maintaining the investment vehicle / business enterprise due to the fact that initial issuance of EB5 conditional (two-year validity) green cards require timely and fully-documented filing and approval in order to achieve condition removal and yield permanent green card status. Therefore, based on current circumstances, for an investor with the means to consider the EB5 option – especially if the investor already has established business interests overseas, one should closely examine the viability of combining the L-1A visa & EB1-3 green card option described above. If all underlying eligibilities can be met, this combined approach could allow the investor much more control over the investment capital and business (both in terms of initial amount and subsequent expenditure), while also yield the permanent green card status more quickly.
Immigrating to the United States requires successful navigation of U.S. immigration options and strategies, along with long-term business planning. Individual investors and business executives should consult legal professionals before making this important pursuit.
For more information please contact Albert Lu. Mr. Lu is an attorney in the Labor and Employment Practice Group in Sheppard Mullin’s San Diego Office.