TAMPA IMMIGRATION BUSINESS LAWYER

For foreign entrepreneurs, domestic businesses, and individuals seeking employment in the United States, maneuvering the complexities of the U.S. immigration regulatory system can be a daunting task.

Below is a sample of some of the most commonly used visas and programs with regard to business.

Program Electronic Review Management (PERM) is the system used for obtaining labor certification, and is the first step for certain foreign nationals in obtaining an employment-based immigrant visa (Legal Permanent Residency).

Through the system, an application for labor certification is submitted to the Department of Labor.  The Department of Labor must then certify that:

1. there are no U.S. workers able, willing, qualified, and available to accept the job offered to the foreign applicant at the prevailing wage for that occupation in the area of intended employment, and
2. that the employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Should the Department of Labor certify the above conditions, an employer would then move to request an immigrant visa for the intended foreign employee.

E-1 and E-2 visas are available to citizens of foreign countries that have a treaty of commerce and navigation with the United States.

E-1

The E-1 nonimmigrant classification allows a national of a treaty country to be admitted to the United States solely to engage in international trade on his or her own behalf.  Moreover, certain employees of such a person or of a qualifying organization may also be eligible for this classification.

For a list of treaty countries, please click on the following link: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html 

To qualify for an E-1 visa, the treaty trader must:

• be a national of a country with which the United States maintains a treaty of commerce and navigation;
• carry on substantial trade; and
• carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification.

Trade is the existing international exchange of items of trade for consideration between the United States and the treaty country.  Items of trade may include:

• Goods
• Services
• International banking
• Insurance
• Transportation
• Tourism
• Technology and its transfer
• Some news-gathering activities.

Substantial trade generally refers to the continuous flow of sizable international trade items, involving numerous transactions over time.  There is no minimum requirement regarding the monetary value or volume of each transaction. Principal trade between the United States and the treaty country exists when over 50% of the total volume of international trade is between the U.S. and the trader’s treaty country.

Treaty traders and employees will be allowed a maximum initial stay of two years.  Requests for extension of stay may be granted in increments of up to two years each, however, there is no maximum limit to the number of extensions an E-1 nonimmigrant may be granted.

Spouses and unmarried children who are under 21 years of age may accompany treaty traders and employees.  A family member’s nationality does not need to be the same as the treaty trader or employee. Spouses of E-1 workers are authorized to work without restriction.

E-2

The E-2 nonimmigrant classification allows a national of a treaty country to be admitted to the United States when investing a substantial amount of capital in a U.S. business.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification.

For a list of treaty countries, please click on the following link: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/fees/treaty.html 

To qualify for E-2 classification, the treaty investor must:

• be a national of a country with which the United States maintains a treaty of commerce and navigation;
• have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States; and
• be seeking to enter the United States solely to develop and direct the investment enterprise, i.e., by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

An investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit.  The capital must be subject to partial or total loss if the investment fails.

A substantial amount of capital is:

• substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one;
• sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
• of such a degree to support the likelihood that the treaty investor will successfully develop and direct the enterprise.

A bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit.

Qualified treaty investors and employees will be allowed a maximum initial stay of two years.  Requests for extension of stay may be granted in increments of up to two years each. There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted.

Spouses and unmarried children who are under 21 years of age may accompany treaty investors and employees.  A family member’s nationality does not need to be the same as the treaty investor or employee. Spouses of E-2 workers are authorized to work without restriction.

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require a highly specialized knowledge and a bachelor’s degree or higher, or its equivalent, in the specific specialty.

H-1B visa holders are admitted for a period of up to three years. The visa may be extended, but generally cannot go beyond a total of six years, with some exceptions.

Sponsoring employers are responsible for costs of an employee’s return to their country should they terminate the H-1B holder prior to their period of authorized stay. However, this does not hold true if the employee resigns from the position.

Because H-1B visas have an allotment cap, it is imperative that an applicant have all documentation submitted on the first day the visa petition may be filed (April 1st of each year). A delay in filing will likely result in having the petition rejected.

H-1B visa holders may be accompanied by their spouse and unmarried children under 21 years of age (H-4 nonimmigrant classification). However, only in limited circumstances may an H-4 dependent spouse be authorized to work.

Employers in the United States are required to verify the identity and employment eligibility of their employees, or they may be sanctioned.  Employers must use Form I-9 (the Employment Eligibility Verification form) to document this verification.

All U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Both employees and employers must complete the form.

On the form, an employee must attest to his or her employment authorization. The employee must also present his or her employer with acceptable documents verifying  identity and employment authorization. It is the employer’s duty to examine the employment eligibility and identity documents for authenticity and applicability, recording the information on the I-9 form.

The form is not filed with the U.S. Citizenship and Immigration Services, but rather, the employer must:

• have a completed Form I-9 on file for each person on their payroll who is required to complete the form;
• retain and store Forms I-9 for three years after the date of hire, or for one year after employment is terminated, whichever is later; and
• make the forms available for inspection if requested by authorized U.S. government officials from the Department of Homeland Security, Department of Labor, or Department of Justice.

Penalties for failing to produce a Form I-9 ranges from $230 to $2,292, per violation.  In determining penalty amounts, Immigration and Customs Enforcement considers the size of the business, good faith effort to comply, seriousness of the violation, whether the violation involved unauthorized workers, and history of previous violations.

At Diaz Shafer, P.A., we are familiar with the nuances and complexities of completing and maintaining Form I-9.  We offer employers expert assistance with employee verification compliance.