How to Bring Foreign Talent to the United States

The majority of people in the United States can trace at least part of their roots to places like Ellis Island – a port of entry for many immigrants to the New World. As President John F. Kennedy once said, “The contribution of immigrants can be seen in every aspect of our national life. We see it in religion, in politics, in business, in the arts, in education, even in athletics and in entertainment. There is no part of our nation that has not been touched by our immigrant background.”

As the world becomes more integrated, open and arguably more dangerous, the United States’ immigration policy tries to play catch-up with the new reality and complexity posed by our increasingly globalized existence. As a result, today’s immigration policy is a web of complex and sometimes vague regulations that must be followed in order to navigate in the uneasy waters of immigration law.

Individuals with Extraordinary Ability

Our law firm often faces questions from U.S. companies as well as individuals outside of the country concerning how to bring foreign talent to the United States. These inquiries usually involve prominent scientists, educators, athletes, artists or businesspeople.

The first step is to secure competent immigration counsel. There are many socalled consultants, immigration centers and general practice lawyers offering to help individuals and companies with their immigration needs. Handling an immigration matter is in a way similar to performing a surgery – you only get one chance to do it right. Any mistake can result in status denial for many years or even a ban from visiting the U.S. in the future.

Qualifying a person as having extraordinary ability is not an easy task and requires deep knowledge of the law as well as creativity. A person with extraordinary ability can apply to remain in the U.S. permanently (through a green card based on extraordinary ability) or temporarily (via an O or a P visa). Whether the intention is a permanent or temporary stay, the burden of proof is similar – the person must have sustained national or international acclaim in the field of science, art, education, business or athletics, which must be supported by extensive documentation. We guide our clients through the complexities of federal regulations to achieve the desired result in the most efficient and expeditious manner/

Other Visa Options

Obviously, not everyone can meet the high burden of proving extraordinary ability. Professionals with at least a baccalaureate degree may still come and work in the U.S. in H-1B status. Many U.S. employers recruit worldwide for foreign talent in fields such as information technology, engineering and academics. The H-1B visa is the most common nonimmigrant visa in the United States and is preferred by many U.S. companies. The major benefit for professionals on the H-1B visa is that it may lead to permanent residence in the U.S. if so desired.

The L-1 visa was created to allow companies operating both in the U.S. and abroad to transfer certain managers, executives or specialized knowledge staff to the U.S. operations for up to seven years. The L-1 visa can also be used by non-U.S. companies to expand their business by creating a branch, subsidiary or affiliate in the United States. A non-U.S. company would have to transfer one of its existing executives with direct knowledge of operations to the newly created office. As with a H-1B visa, the L-1 visa may lead to permanent residence in the U.S.

Another option that interests some of our clients is the investment EB-5 visa, through which an investor and his or her family can obtain permanent residence in the U.S. The amount of investment must be at least $1 million in an existing or a newly created business and should create full-time employment for at least 10 U.S. workers. The investment need only be $500,000 if it is to be made in a targeted employment area. A targeted employment area is a rural area or an area that has experienced high unemployment of at least 150 percent of the national average.

The United States also welcomes less significant investments, which would allow foreign investors to live and work in the U.S. temporarily. E-1 and E-2 visas (also known as treaty visas) were introduced into law to promote trade and investment between the United States and other treaty countries. The international trade must be “substantial,” meaning there is a sizable and continuing volume of trade.

Even though there is no set minimum level of investment, our experience indicates that any investment below $100,000 would need very strong proof to support it. Once the treaty investor or trader obtains the E visa, he or she can petition to obtain E visas for qualifying employees, such as executives, managers or essential skilled workers, in order to further develop and direct the trade or investment.

There are multitudes of other visas available to foreign nationals interested in coming to the U.S. Whatever the immigration need may be, we work individually with each potential client to develop a unique approach to his or her case.

Remaining in Compliance

Once in the United States, foreign nationals and their employers need assistance to make certain they continue to be in compliance with immigration laws. Often we get urgent calls from foreign nationals who find themselves in removal (deportation) proceedings due to overstaying the term of an approved nonimmigrant visa or otherwise violating immigration laws.

The article is taken from www.primerus.com