Miami Employment-Based Immigration Attorney
Proudly Representing Individuals & Companies
At the Law Offices of Santiago J. Padilla, P.A., we take great pride in using our 30+ years of practical legal experience to help clients determine the appropriate nonimmigrant visa for their specific purpose. We can help you prepare the correct forms and paperwork and will provide the reliable and compassionate support you need throughout the entire process.
Our immigration practice focuses on employment-based immigration matters for temporary workers and individuals seeking permanent residency in the United States, as well as investor visas for international investors. We possess decades of practical experience advising foreign nationals and individuals on their options to legally enter the country to pursue better employment opportunities.
We provide comprehensive counseling, planning, and strategy development services to clients across the greater Miami area, so please don’t hesitate to give us a call today at (305) 824-2400.
E-1 & E-2 Visas for Treaty Traders & Investors
Under the Immigration and Nationality Act, foreign nationals of a country with which the United States maintains a treaty of commerce and navigation can obtain a non-immigrant visa to enter the country to carry on substantial trade between the United States and the treaty country or to develop and direct the operations of an enterprise in which the foreign national has invested, or they are in the process of investing a substantial amount of capital.
Eligibility requirements for a treaty trader visa include the following:
- The applicant must be a national of a treaty country.
- The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country.
- The international trade must be "substantial" in the sense that there is a sizable and continuing volume of trade. Typically, ongoing trade of $500,000 per year is considered to be substantial.
- The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50% of the international trade involved must be between the U.S. and the country of the applicant's nationality.
- Trade means the international exchange of goods, services, and technology (title of and to the trade items must pass from one party to the other).
- The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm (ordinary skilled or unskilled workers do not qualify).
Eligibility requirements for a treaty investor visa include the following:
- The investor, either a real or corporate person, must be a national of a treaty country.
- The investment must be substantial and sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise. Generally, investments of between $150,000 and $200,000 will qualify for a startup business.
- The investment must be a real operating enterprise. Speculative, idle, or passive investments do not qualify. Uncommitted funds in a bank account or similar security are also not considered an investment.
- The investment cannot be marginal and must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the United States. This usually means that the investor must have other individuals employed in the enterprise.
- The investor must have control of the funds and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed unless the investor provides a personal guaranty with other assets.
- The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, they must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify.
FAQ: E-1 & E-2 Visas
Question #1: Can treaty investors purchase a business?
A: Treaty investors can purchase a business without having to immediately invest the entire amount indicated. For example, the purchase of a $300,000 business would qualify even if the investor initially only invested $50,000, but also has an obligation to pay the balance of the purchase price in the form of a promissory note that was personally guaranteed with other assets and/or income.
Question #2: Can employees of E-1 and E-2 visa holders receive a visa without investing?
A: Key employees of E-1 and E-2 visa holders can also receive an E-1 or E-2 non-immigrant visa without meeting the investment amounts. In fact, the principal investor need not be in E status and must only show that they would be potentially "classifiable" as a treaty trader or treaty investor. The company must show that the employee is a key employee that will occupy an executive or managerial position with the company and be part of the management team of the company.
Question #3: How long can E-1 and E-2 visa holders remain in the U.S?
A: Holders of E visas can reside in the United States as long as they continue to maintain their status with the enterprise. Normally, visas are given with five-year terms, which can be extended indefinitely, and two-year entry approvals. A change of status applicant is given a two-year period of stay.
H-1B: Specialty Occupation Visa
The Immigration and Nationality Act provides for a nonimmigrant visa for a person who wishes to work temporarily in the United States. The H-1B classification applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education.
This classification requires a labor attestation issued by the Secretary of Labor. Only 65,000 visas H-1B visas are allowed to be given out each year. However, there are an additional 20,000 visas available for candidates with a Master's Degree issued by a U.S. educational institution.
The applicant must have a baccalaureate degree from a regionally accredited university in the U.S. or its equivalent and must be coming to the U.S. to work in their specific field. The U.S. employer must also certify that it will pay the applicant the prevailing wage for the type of occupation.
H-1B visa holders can reside in the U.S. for a total of six years, at which time they are required to return to their country of origin or previous residence. Usually, H-1B visa holders are granted a three-year period of stay, at the expiration of which they need to apply for an additional three years. However, the period that an H-1B visa holder spends outside of the U.S. is not counted toward the total of six years and can be recaptured.
L1 Visas for Transferred Employees
Transferred employee visas are for foreign nationals coming to the United States as intracompany transferees and who within the three years prior to their entry were employed abroad continuously by an affiliate or subsidiary of the multinational employer for at least one year. In addition, they must have been employed in a managerial, executive, or specialized knowledge capacity.
If the U.S. employer is an affiliate, the foreign and U.S. employer must have the same or nearly the same shareholders or controlling block of owners. The U.S. employer must also have a commercial office or other commercial installations or facilities. The L1 visa is usually granted for three years, with a total of seven years.
FAQ: L1 Visas
Question #1: Are there additional requirements for new companies?
A: If the U.S. employer has been in business for less than one year, additional requirements will apply. First, the U.S. employer must show the development and expected growth of the U.S. employer through the presentation of a detailed Business Plan.
Second, the U.S. employer must demonstrate that a sufficient amount of capital has been invested in the enterprise to make it viable.
Third, the applicant will only be granted a visa for one year and must show at the end of that one-year period that the U.S. employer has significant U.S. operations; otherwise, the visa will be canceled.
Question #2: Can a foreign employer purchase a business?
A: The foreign employer can also purchase a business in order to establish an affiliate or subsidiary. For example, the purchase of a $300,000 business would qualify even if the foreign employer only initially invested $50,000 for the purchase of the business, with an obligation to pay the balance of the purchase price in the form of a promissory note.
Question #2: How long can L-1A visa holders remain in the U.S.?
A: L-1A visa holders can reside in the U.S. for a total of seven years, at which time they are required to return to their country of origin or previous residence. For newly formed U.S. companies, the L-1A visa will be granted for one year, at which time the company will need to apply for an extension of the visa and show that the company has developed, employs 5 to 10 employees, and is operational.
O-1 Visa: Extraordinary Ability
The O-1 classification applies to people with extraordinary ability in the sciences, arts, education, business or athletics, or extraordinary achievements in the motion picture and television field. O-1 visas are reserved for the small percentage who have risen to the top of their field.
The applicant must demonstrate the achievement of the following regulatory criteria:
- They have received nationally or internationally recognized prizes or awards for excellence.
- They performed a critical role for an organization with a distinguished reputation.
- They made original contributions of major significance.
- They commanded a high salary or other remuneration in relation to others in their field.
There is no set maximum period for O-1 status. Theoretically, it can be indefinite. However, the length of the status is determined by the length of time needed for the alien to perform their duties or activities with the petitioner employer. An initial stay is limited to no more than three years, provided the petition can establish that the O-1 alien will need this much time for the proposed employment. This period can be extended at one-year increments thereafter, upon evidence showing that the alien's continued presence would be required.
P1 Visa for Professional Athletes & Entertainers
This classification applies to professional athletes playing an individual sport or a team sport that is internationally recognized. It requires a no-objection letter from a union or management group. P-1 visa applicants must show through extensive documentation that they are an athlete or member of an entertainment group that is internationally recognized.
There is no set maximum period for P-1 status. Theoretically, it can be indefinite. However, the length of the status is determined by the length of time needed for the alien to perform their duties or activities with the petitioner employer. An initial stay is limited to no more than three years, provided the petition can establish that the P-1 alien will need this much time for the proposed employment. This period may be extended at one-year increments thereafter, upon evidence showing that the alien's continued presence would be required.
Green Cards for Permanent Residency
Generally, under the employment-based immigration categories, the prospective employer of a foreign national begins the permanent residency application process by filing a petition with the U.S. Citizenship and Immigration Services (USCIS). However, in most employment-based immigration categories, the employer must first file an application with the U.S. Department of Labor's Employment and Training Administration requesting certification to hire a foreign national.
Our firm can assist you with any of the following green cards for permanent residency:
- EB-1 Visa: This classification is for priority workers with extraordinary ability, outstanding professors and researchers, and multinational executives and managers.
- EB-2 Visa: This classification is for people with advanced degrees or the equivalent due to work experience and those with exceptional ability in the sciences, arts, or business whose exceptional ability will substantially benefit the United States.
- EB-3 Visa: This classification is for professionals with baccalaureate degrees and persons with at least two years of experience as skilled workers. Unskilled workers are also included in this classification if they can perform work for which there are no qualified workers in the United States.
- EB-4 Visa: This classification is for members of nonprofit religious organizations coming to the country to work for that organization. To qualify, the person must have been a member of the organization for at least two years before applying for admission.
- EB-5 Visa: This classification is for persons who have invested between $500,000 and $1,000,000 in a U.S. commercial enterprise. The amount of investment depends upon the unemployment rate in the geographical area of investment. To qualify, the foreign national must invest between $500,000 and $1,000,000 in a commercial enterprise in the U.S. which creates at least 10 new full-time (at least 35 hours per week) jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor’s family.
Labor Certification Process Services
The Law Offices of Santiago J. Padilla, P.A. proudly offers comprehensive legal services for clients who need reliable guidance to successfully navigate the Labor Certification Process.
Before a U.S. company can offer permanent employment to an alien worker, generally the company must first obtain certification from the U.S. Department of Labor that says there are no U.S. workers (either U.S. residents or citizens) that qualify for the job in question. To show this, the company must go through a recruitment process that requires advertising in various media around the geographic area of intended employment.
After placing the advertisements, the company will begin receiving resumes from potential job applicants. Unless the resume shows that the applicant is not qualified, each person who provides a resume should be interviewed, either telephonically or in-person to determine whether or not the applicant is qualified for the position.
The recruitment period needs to be held open for 30 calendar days after the last recruitment step occurs in order to allow people to apply for the position. After the recruitment period, plus the 30-day period mentioned above, an Application for Alien Labor Certification can be submitted electronically with the U.S. Department of Labor.
The company must monitor layoffs in the specific occupational category in the area of intended employment during the advertising and recruitment period. The company must certify that there has been no change in the answer to the question: "Has the employer had a layoff in the area of intended employment in the occupation involved in this application or a related occupation within the six months immediately preceding the filing of this application?"
Once the Labor Certification Application is certified, which usually takes between 60 to 120 days, the company can file a Petition for Alien Worker with USCIS.
If the petition is approved by USCIS, the beneficiary must wait for an immigrant visa number from the Department of State, unless the category has immediately available visa numbers. Visa numbers are limited based on the immigrant classification.
If the beneficiary is already in the country, then the beneficiary must apply to adjust status to permanent resident status when a number becomes available. If the beneficiary is outside the country, when a visa number becomes available, the beneficiary will be notified to go to the local U.S. consulate to complete processing.
Set Up Your Free Consultation with Our Employment Based-Based Immigration Team Today
The Law Offices of Santiago J. Padilla, P.A. in Miami proudly serve clients of all backgrounds from around the world and across the U.S. Attorney Santiago J. Padilla, is a member of the American Immigration Lawyers Association (AILA) and has a stellar track record of success in a wide range of employment immigration matters.
When you choose our firm to represent you, we make it our top priority to be personally involved with your case. You can count on us to leverage the weight of our extensive experience and cutting-edge resources to advocate for your best interests each step of the way.