The in-house counsel frequently needs to deal with numerous visa issues. These issues can be about the I-9 audit, deciding to move in an employee from a foreign corporation, or forming strategies to handle the expiration of a work permit for graduates. The laws around immigration are complex and full of acronyms. For an average person, it is like trying to navigate a labyrinth.
However, as an in-house counsel, you must often make sense of the chaos and provide quality legal advice. You need to ensure that your company follows the law and complies with all regulations.
Purpose of Entry
One crucial question to understand the visa category is to identify the purpose for the entry. For instance, a person may enter to reunite with their family, work on temporary assignments, attend school, make an investmtent, or move in for a permanent job, just to name a few. Should the nature of the travel be temporary, the individual must be able to demonstrate this at both the consulate and at entry.
The non-immigrant visas are typically provided to those who wish to enter the United States for a temporary stay. They are typically for a finite period, and the entrant is not eligible remain in the U.S. permanently.
For in-house counsels, it is important to understand the requirements for each of these non-immigrant visas. Here are some essential categories:
Non-Immigrant Business Visitor
The business visitor visa is specially designed for those intending to enter the US for a short-term stay. The entrant should not be involved in any form of employment or remuneration, and their visit should be strictly limited to attending conferences, business meetings, and other similar activities.
Non-Immigrant Temporary Employment
This visa is designed for those who wish to enter the US for a temporary and specific purpose. There are two categories for this type of visa. The H1-B visa is for those deemed to possess ‘specialty occupations,’ while the L1-A visa is for those at higher designations, such as managers or executives that are being transferred to the U.S. from a foreign affiliate or branch office.
If an entrant wishes to move into the United States permanently, they must apply for an immigrant visa. This category is designed for those wishing to enter the US to work permanently. The most common types of immigrant visas are:
Immigrant Employment-Based Green Cards
The employment-based green cards are typically provided to those with exceptional skills or qualifications. Every year, 140,000 individuals have the chance to become green card holders if they fall into one of the following categories:
– EB-1-1: Individuals with Exceptional Talents in Business, Science, Education, Arts, or Athletics
– EB-1-2: Exceptional Researchers and Professors
– EB-1-3: Multinational Executives or Managers
– EB-2: Professionals Holding Advanced Degrees
– EB-3: Skilled and Unskilled Workers
– EB-4: Special Immigrants
– EB-5: Investors
Obtaining a green card primarily involves applying through the Labor Certification process, otherwise known as PERM. Before filing for the green card, the organization must:
– Make credible attempts to hire qualified American workers
– Obtain a Labor Department certification
– Show there are not enough workers in the US who have the skills, desire, qualifications and ability to start work immediately at the workplace
Capital Investment (EB-5)
The Green Card can be applied through capital investment. However, to become eligible, the investment must range between $800,000 and $1,800,000, depending on the investment location and type. Each EB-5 application for the Green Card must ensure ten American jobs have been created through the investments.
Understanding the different visa options is important for anyo