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Featured Article

This month’s featured article comes from Matthew Myers of Foster, LLP, a world-class business-immigration law firm. Foster specializes in assisting businesses and entrepreneurs with business immigration needs.

Immigration Basics for Startups, by Matthew Myers, Foster LLP

When it comes to noncitizens, many people in the United States have heard generally of immigrants and undocumented aliens.  Under U.S. immigration law, there are actually immigrants and nonimmigrants, those with other legal status (i.e. DACA or asylum) or no legal status as a result of overstaying their visa or entering the country without being inspected by U.S. Customs and Border Protection.

Most employment-based immigration options require employer sponsorship, and many foreign nationals actually start in nonimmigrant status as an F-1 student, H-1B specialty occupation worker, Trade NAFTA professional, etc. before obtaining an immigrant visa.

1. Getting your Foot in the Door: Nonimmigrant Visas

Commonly referred by immigration lawyers as an “alphabet soup,” the U.S. immigration system provides for nonimmigrant visa options for almost every letter of the alphabet, with certain letters having multiple variations.  Nonimmigrant visas authorizing work may be issued for a specific duration generally between 1-5 years and at renewal require the petitioning company to prove that the foreign national still qualifies for the position in order to extend the nonimmigrant visa.

Certain nonimmigrant visas have a cap on the years that a foreign national may remain in such status, after such period the foreign national either needs to change to a different nonimmigrant visa, secure an immigrant visa, or return to their home country. For example, the cap on the number of years spent in H-1B status is seven years, and the cap on the U.S. intracompany transfer visa options of L-1A Managers and Executives and L-1B Specialized Knowledge employee is seven and five years, respectively.  Not having the same time restrictions, an alternate option available to companies may be hiring Canadian or Mexican professionals under the TN visa if the job and applicant’s credentials align with a set list of over 60 professional occupations set forth by NAFTA.

Other nonimmigrant visas, such as the H-1B Specialty Occupation visa, have a cap on the number of new visas that may be granted annually. The H-1B specialty occupation visa is the most frequently utilized by tech companies in the United States, but the annual cap on new visas is reached shortly after the beginning of the fiscal year on April 1. Companies who require specialized workers outside of the cap may choose to hire nationals of Chile, Singapore, and Australia. The U.S. signed treaties with these countries that provide for a separate visa category for U.S. companies to petition for nationals of these countries who are qualified to fill specialty occupations.

2. The Holy Grail of Immigration: the Immigrant Visa

The immigrant visa, commonly referred to as the “green card”, is the holy grail of U.S. immigration law, other than citizenship, because it allows the holder to renew permanent residency indefinitely so long as that person remains admissible and a permanent resident of the United States. The renewal process is similar to that of a passport or driver’s license and may be done routinely generally without the legal advice and substantial evidence of continued qualification necessary to extend nonimmigrant visas.

Generally speaking, there is a correspondingly higher level of scrutiny in the self-sponsored or employer-sponsored options to request an immigrant visa, relative to nonimmigrant visa options. These options include the EB-1 Aliens of Extraordinary Ability, EB-1B Outstanding Professor or Researcher, the EB-5 Immigrant Investor Visa who invest $500,000 or $1 million, or the National Interest Waiver for individuals whose research is in the national interest of the United States who have proven accomplishments in the field.

Matthew Myers, Attorney (mmyers@fosterglobal.com)