EMPLOYMENT BASED VISAS
The United States immigration system provides a means for foreign individuals and businesses from qualifying countries that maintain a treaty with the U.S. to be admitted to conduct trade with or invest in a U.S. business. This is done through the E-1 Treaty Trader Visa or the E-2 Treaty Investor Visa.
An E-1 Treaty Trader Visa allows someone to enter the U.S. to carry on “substantial” trade. This trade must principally occur between the U.S. and the E-1 visa holder’s home country. The E-1 visa holder, their spouse, and minor children may only remain in the U.S. for so long as the trade enterprise is active. Once an E-1 visa holder’s business is done in the U.S., they must leave the country.
In addition to being from a treaty country, an applicant for an E-2 investor visa must meet additional requirements. The E-2 visa applicant must invest a substantial amount of capital into an operating enterprise in the U.S. sufficient to ensure the applicant is financially committed to the success of the business. The investment must also not be “marginal,” meaning the investment must produce income that will support more than just the applicant and their family in the U.S. The E-2 applicant must play a key role in the success of the business by having at least a 50% ownership interest in the business or as an essential employee in a supervisory, executive, or highly specialized skill capacity. The E-2 Visa has a limited permissible stay of two years and like the E-1 visa, the E-2 investor may also bring their spouse and minor children with them. Once an investor concludes their business in the U.S., they must depart the country.
The North American Free Trade Agreement (NAFTA) provides for the creation of the TN non-immigrant classification which permits qualified Canadian and Mexican citizens to seek temporary entry into the United States to engage in business activities at a professional level. The U.S. Code of Federal Regulations contains a list with specific professions that qualify for a TN visa. If your profession is on this list, you may be eligible for TN non-immigrant status, if in addition you are:
- A citizen of Canada or Mexico;
- The position in the United States requires a NAFTA professional;
- You have a prearranged full-time or part-time job with a U.S. employer; and
- You have the qualifications to practice in the profession in question.
TN Visa recipients may work and stay in the U.S. for a period of up to 3 years and may also bring their spouses and minor children to the U.S. as derivative beneficiaries of their visa.
The employment visa process can be confusing and consulates are very strict about the content of the applications and how they are submitted. The right attorney can make the process more manageable than attempting the process on your own.