TERMS & DEFINITIONS
VISA TERMS & DEFINITIONS
The Electronic System for Travel Authorization (ESTA) is an automated system that assists in determining eligibility to travel to the U.S. under the Visa Waiver Program (VWP). Upon completion of an ESTA application (https://esta.cbp.dhs.gov/), a traveler is notified of his or her eligibility to travel under the VWP. The Visa Waiver Program (VWP) is administered by DHS and enables eligible citizens of designated countries to travel to the U.S. for tourism or business purposes for stays of up to 90 days without first obtaining a visa. Please note that an approved ESTA is not a visa. Individuals traveling on valid visas (such as a B-1, H-1B, etc.) are not required to apply for ESTA.
Also called the Treaty Trader visa, the E-1 visa allows foreign nationals of a treaty country to enter the United States for the purpose of directing and developing import/export trade between the U.S. and the treaty country. This visa is available to companies that conduct “substantial and recurring” import or export trade between the U.S. and the trader’s home country. The foreign national’s presence must be necessary to direct and develop that import/export enterprise. The candidate must have the same nationality as the primary ownership of the foreign and U.S. companies.
Also called the Treaty Investor visa, the E-2 visa is based on an investment made in the U.S. by a citizen or company of a treaty country. An individual may establish his or her own U.S. based venture, or the company may be seeking to transfer a manager, executive or other employee having “essential skills.” There is no specific minimum investment level that must be shown. However, our rule of thumb is around $100,000 should have been invested from abroad and spent on the U.S. business at the time the visa petition is filed. The U.S. entity must be at least 50% owned by individuals who share treaty nationality with the visa applicant, either directly or through a foreign parent company.
The H-1B visa is intended for professionals in specialty occupations who hold a minimum of a Bachelor’s degree. This visa category has two basic requirements: a Bachelor’s degree in a specific related field must be mandatory for the position, and the position’s salary must be equal to or higher than the prevailing wage in the geographical area where the beneficiary will be working. The H-1B program limits the numbers of H-1B visas available annually to 85,000 (although certain institutions are exempt from this cap), which are secured via lottery.
The L-1A Intra-Company Transferee Visa is intended for managers or executives who have been employed outside the U.S. for a continuous period of at least one out of the past three years and who are intended to fill a similar managerial or executive position in the U.S for a company affiliated with the foreign employer.
The L-1B Intra-Company Transferee Visa is intended for specialized knowledge workers who have been employed outside the U.S. for a continuous period of at least one out of the past three years and who are intended to fill a specialized knowledge position in the U.S. for a company affiliated with the foreign employer. To be eligible for an L-1B, an individual should possess knowledge that is not commonly held, is complex, and cannot be easily imparted to other individuals.
Also called an extraordinary ability visa, the O-1 visa requires a U.S. employer or agent sponsor and proof of extraordinary ability in the field of endeavor, which may be arts, science, business or the performing arts.
Also called the NAFTA (North American Free Trade Agreement) visa, the TN visa requires:
- Canadian or Mexican citizenship;
- A bachelor’s degree in a specific discipline related to the field;
- U.S. employer sponsor; and
- Job offer in a qualified profession under the NAFTA regulations.
Permanent Labor Certification Process
Employers can sponsor certain individuals for permanent, full-time employment requiring specific skills and a guaranteed wage at a level determined by the Department of Labor (DOL). The process, also referred to as PERM, involves a recruitment period and certification by the DOL, followed by filing with the U.S. Citizenship and Immigration Service. Please note, the employee will need to maintain a valid non-immigrant status until the final stage of the process, which currently takes approximately eighteen to twenty-four months. At the conclusion of the process, the sponsored individual will receive legal permanent resident status (a “green card”).
National Interest Waiver
National Interest Waivers can be pursued by individuals with an advanced degree and demonstrated outstanding ability who are seeking to gain both permanent residence and an exemption from the labor certification process. To qualify, the individual’s work in the U.S. must substantially benefit the national economy, cultural interests, or the welfare of the U.S. Upon approval of a National Interest Waiver petition (I-140), the individual can file for permanent residence. No U.S. sponsor is required.
Extraordinary Ability Waiver
Extraordinary Ability Waivers are available to individuals who are distinguished in their fields. Applicants must demonstrate their level of excellence through extensive documentation and satisfy a variety of criteria set forth by USCIS. Similar to a National Interest Waiver, once the I-140 petition is approved, the individual can file for permanent residence and no U.S. sponsor is required.
Permanent Resident Status
To apply for permanent resident status (a “green card”), an individual must either be in the U.S. and apply for an Adjustment of Status or be outside the U.S. and apply for consular processing. Applying for permanent resident status is commonly done through a petition for the alien relative (Form I-130) or an immigrant petition for the alien worker (Form I-140). The application process for permanent residency involves submission of forms and other supporting documentation, biometrics appointment and medical examination, and an in-person interview with a U.S. Customs and Immigration Service officer or Consular Officer.
This process is also called naturalization. Individuals who have been legal permanent residents (LPR) for five years, or three if married to a U.S. citizen, may be eligible to apply for naturalization. In additional to being in valid LPR status, applicants must satisfy a physical presence test and prove continuity of residence for the past five years (or three if applying through marriage). Applicants also must demonstrate good moral character during the five-year period prior to application.
Filing for naturalization involves preparing and filing an application and supporting documents. Once filed, the application is first reviewed at a USCIS service center and then sent to your local USCIS office, where you must appear for an interview. At the time of the interview, you must be prepared for a U.S. civics and English language test. Once your case is approved, you will be scheduled for an Oath Ceremony, where you will be sworn in as a U.S. citizen by a judge.
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