FAQs

What classes of visa are available to entrepreneurs seeking to establish new businesses in the US?

Employment creation though entrepreneurship is a key consideration in formulation of US immigration policy. The law establishes both immigrant (permanent) and non-immigrant (temporary) visa classifications which permit foreign persons to establish business in the US. Permanent residency is available to persons investing $1 million in a new or reorganized business and committing to create ten new full time jobs within two years, (or in maintaining employment levels at troubled companies. The investment floor is reduced to $500,000 where the new business will be located in rural or high unemployment areas.

Non-immigrant treaty trader/investor visas are available to persons from countries which have entered treaties of friendship, commerce and navigation with the United States. These classifications require significantly lower capital commitments and reserve the option of later adjusting to permanent resident status. There are also circumstances in which an individual employed by a company in which he is an investor may enter the US to establish or operate a US affiliate.

What if I only want to come to the US to test the waters and secure funding?

Foreign nationals may enter the US under a business visitor's visa (B-1) for the purpose of laying the foundation for a new business venture and securing funding. The B-1 visa does not permit the performance of labor for hire, so compensation must come from a foreign source. The stay must also be temporary and the visitor be prepared to demonstrate that he maintains a permanent residence abroad he has no intention of abandoning.

How do I bring employees into the United States to work at the new venture?

As a baseline, all US companies are subject to the same obligations with respect to the immigration laws regardless of the owner's nationality. The law makes allowance for the need of foreign-owned companies and investors to bring non-US talent into the US who provide institutional knowledge and culture and who are most familiar with the business. Foreign firms establishing US affiliates may employ their non-US executives, managers and employees with specialized knowledge as intracompany transferees, which permits a stay of up to seven years. If the post becomes permanent, the US employer may petition for permanent resident status for executives and managers on a streamlined basis.

If the US employer is a treaty trader/investor, it may employ persons of the same nationality in the sponsoring business, who may reside in the US for the same duration as the business principal.

Are there limitations on my ability to sell all or part of a company established in conjunction with a treaty trader/investor visa?

The treaty trader/investor status (E) requires ownership to be held by nationals of a country which has a treaty of Friendship, Commerce, and Navigation (FCN) with the United States. If the company is sold in its entirety to persons of nationality different than the E holder, the company would no longer qualify as an E sponsor for that individual. If a partial interest in the company is sold, it is possible to maintain E visa status provided that the E principal's investment interest continues to be "substantial." This varies considerably with the size of the principal's investment relative to the total value of the company.

Will Canadian citizens be affected by US law requiring machine readable passports?

Not directly. Beginning on September 30, 2004, US-bound travelers from many of the 27 Visa Waiver Program (VWP) countries will become subject to the US-VISIT biometric screening system, which requires many non-US persons to be photographed and to provide inkless fingerprints on admission. A separate US law, however, provides that Canadian citizens do not require visas to travel as business visitors, tourists, or students (among other classifications) so that Canada is not a VWP participating country. As such, Canadian citizens will not be subject to US VISIT processing. They may be affected by delays caused by the additional processing burden placed on other travelers, however.

Why was the H-1b cap reached in 2004 and 2005?

Amendments to the temporary worker statute permitted employers to hire up to 195,000 foreign professionals and skilled workers on a temporary basis through the federal fiscal years which ended in September 2003. Thereafter, the H-1b cap reverted to 65,000 annually, which is insufficient to meet demand. In FY 2004, visas were exhausted in five months. In FY 2005, USCIS cut off filings on October 1, the day the federal fiscal year began. With the addition of 20,000 cap exemptions per year graduates of US Masters degree programs per the "L-1 Visa and H-1b Visa Reform Act", this burden may have ease slightly in years to come.

Does the cap apply to all hiring involving an H-1b visa?

The cap does not apply to H-1b hiring by institutions of higher education and their affiliates or to nonprofit or government research organizations. It also does not apply to extensions of stay for existing H-1b visa holders or to persons who are eligible for a full six years in H-1b status (e.g., persons who have been issued an H-1B visa within the past six years and have spent less than one year outside of the US since then.) Additionally, up to 20,000 cap exempt visas per year will be issued starting in 2005 to foreign workers who hold a Master 's Degree or higher from a US university.

Is the "H-1b dependent" classification still in effect?

The H-1b dependent classification lapsed in 2003, but was reinstated by the "L-1 Visa and H-1b Visa Reform Act" effective in March 2005. Thereafter, employers with percentages of H-1b employees above certain thresholds are deemed H-1b dependent and required to demonstrate efforts to recruit and hire US workers.

Must an employer terminating an H-1b worker pay relocation costs?

The law requires that the employer provide return transportation abroad for the employee. It does not compel payment of transportation costs for the employee's spouse and dependents, although employers may choose to do so. Nor does it compel employers to pay cash in lieu of providing an airline ticket.

How does H-1b portability work?

A US employer may hire a worker already in the US in H-1b status petitioning the USCIS and securing Labor Condition Authorization. Upon obtaining proof of filing, the employee may commence working for the new employer. The ported visa does not count against the cap and is not subject to it, since the original visa had been issued earlier.

What professions qualify for the TN Visa?

Only professions that are specifically identified in an appendix to the NAFTA Treaty. The duties and functions of these professions are not described with specificity, however, so there is some ambiguity as to what job functions are associated with some of the titles. There has been much debate, for example, over what comprises the profession of "management consultant."

Does the TN visa permit self-employed professionals to engage in private practice in the United States?

No. NAFTA professionals may only engage in their profession through prearranged business activities for a United States company or person. Nor may they establish an independent business in which they are the sole shareholder. The individual may, under a TN visa, hold a controlling interest in a Canadian company which contracts to perform work for a US company and also perform that work.

Does TN status effectively permit a Canadian or Mexican citizen to reside in the US permanently?

TN status must be renewed annually, but there is no predetermined limit on the number of renewals. If an employer believes that an individual will be required to reside in the US for an extended period of time they should strongly consider permanent resident sponsorship.

Is there a limit on the number of TN visas issued annually?

No. There had been an annual cap on the number of Mexican TN visas which expired in January 2004.

What are some of the advantages of citizenship over permanent residency?

-Permits extended travel out of the US without the possibility of loss of right to return;

-Many countries waive visas for US passport holders, making travel easier for some;

-Permits sponsoring foreign relatives to US citizenship;

-May transmits citizenship to children.

What are the requirements for naturalization?

-Applicants must be 18 years of age;

-Lawfully admitted as a permanent resident;

-Physically present in the US as a permanent resident for at least 2 ½ of the five years preceding application, or 1 ½ of the preceding three years if married to a US citizen ( absences of six months to a year may be permissible without breaking continuity with an explanation supporting intent to maintain US residency; absences of more than a year break continuity);

-Residence in the USCIS district of application for at least three months;

-Demonstration of good moral character for five years (three years if married to a US citizen). The law describes a lengthy list of crimes and frequency of conviction which demonstrate absence of good moral character;

-Willingness to adopt the principles of the US Constitution;

-The ability to read, write, speak and understand conversational English, with exceptions for , with exceptions for persons with physical or mental impairments and those with lengthy stays and who are over the age of 50;

-Ability to demonstrate knowledge of American history by taking and passing a test, also subject to exemption for impairment and age;

-Willingness to take an oath of allegiance to the Untied States.

What happens if I am naturalizing on the basis of marriage to a US citizen and we separate before the interview?

Federal statute requires that Permanent Residents married to US citizen spouses must have been "living in marital union" with their spouse (i.e., actually residing together) for the three years preceding application. CIS rules, however, impose the "living in marital union" requirement for the three years preceding the naturalization interview as well. As such, separation, divorce, or death of the US citizen spouse after filing of a naturalization application but before the interview will terminate eligibility of the Permanent Resident spouse to naturalize on the three year schedule.

With naturalization processing times of well over a year in some District Offices, CIS' rule can impose substantial hardship where a marriage entered into in good faith is no longer sustainable. At least one US court has ruled the CIS rule to be inconsistent with the statute.

What kind of US history am I supposed to know?

USCIS makes available sample questions, a copy of which is located here. It also provides a naturalization self test to help naturalizing individuals to prepare.

What is the Oath of Allegiance?

"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God."

Does the US acknowledge dual citizenship?

The US recognizes dual citizenship in certain cases. It is permitted, for example, where a person is naturalized in the US and their country of birth does not require renunciation (Germany does, for one) or where a child is born abroad to US parents. US law bars dual citizenship where a US citizen naturalizes to another nationality with the intention of giving up their US citizenship as shown by the person's statements and conduct. The US State Department's official position is posted on their web site.

Can I leave the US while waiting for adjudication of my naturalization application?

You must maintain residence in the US while awaiting adjudication of a naturalization application and through the Oath ceremony. "Residence" does not mean "physical presence," however, so that a visit abroad of under six months would not by itself create a break in residency. Nevertheless, buying a house, getting a job, and getting married while on that trip may demonstrate an intent to abandon residence, regardless of its duration.) Absences of six months to a year create a rebuttable presumption of a break in residency, and a twelve month or greater absence is deemed a disruption.

Are permanent residents free to travel to and from the US at will without regard to time abroad?

Only US citizens may depart the US for extended periods and return to recommence an open ended residence. While permanent residents may travel internationally, they must retain their intention to maintain their primary residence in the US. Demonstration of this intention may be undermined by extended absences abroad, purchase of residence property in another country, or taking foreign employment, for example. It is not sufficient to simply return to the US once a year. Permanent residents anticipating an extended absence from the US of up to two years may secure a reentry permit which preserves status while away and may be used to reenter on return.

I am in the midst of adjusting status from an H-1b visa to employer
sponsored permanent residence and I need to travel outside the country. Can I do so?

Yes, but you must obtain advance parole from USCIS before leaving the country, which is liberally granted. Leaving the US during an adjustment of status is deemed a withdrawal of the petition requiring the process to start over again.

How do I request TSA to confirm that I am not the same person they have listed on the "no fly" list?

The Transportation Security Administration has established procedures for travelers to request corrections to the "no fly" list if they believe there is an error, such as would occur where one's name is the same as a listed individual. TSA maintains a website providing instructions for seeking name verification, and has posted a verification form for submission to the TSA ombudsman.

Maintaining Permanent Residency

Naturalization

Transportation Security

Home :: About Us :: Site Map :: Contact Us :: Legal Notice

Corporate Services :: Individual Services :: Immigration Policy

FAQs :: Resources

Law Office of Charles A. Tievsky, PLC

1875 Campus Commons Dr., Suite 201 , Reston, Virginia 20191 USA

Ph.+1 703 716 0022 , Fax: +1 703 935 6088

ct@tievskylaw.com