IMMIGRATION LAW

There are differences between employment-based immigrant visas. Each visa type has separate evidentiary requirements. The following information describes what each of these visas are and how they can be obtained.

  • EB-1(A) – This visa is for individuals who have exhibited extraordinary ability in the fields of science, education, business, art, or athletics. To qualify, an individual must prove that he or she has won a major award (such as a Pulitzer, Oscar, or Olympic Medal). If the individual has not won a major award, at least three out of ten criteria must be met. These criteria are listed on the  Citizen and Immigration Services
  • EB-1(B) – The Outstanding Professors and Researchers visa category is reserved for individuals who are being offered tenure or tenure track teaching or comparable research position at a university or other institution of higher education. In addition to the job offer requirement, the individual must demonstrate that he or she satisfies at least 3 of the 6 criteria listed in regulation.
  • EB-1(C) – This visa is for multinational managers or executives who have been employed in managerial or executive positions with a qualifying organization abroad and are seeking to continue service to an organization in a managerial or executive capacity.
  • EB-2 – This visa category is for those who hold advanced degrees or high ability in the field of science, business, or the arts. To qualify for this visa an individual must have a job offer as well as a labor certification that has been issued by the Department of Labor. This labor certification is waived for individuals who can demonstrate that their work is in the National Interest.
  • EB-3 – This visa is for different types of workers, including professional or skilled workers. To qualify for this particular visa United States immigration laws require that an individual perform a skilled or professional job in which qualified workers are not available in the United States. This is demonstrated through the acquisition of a Labor Certification and a permanent, full-time job offer from the sponsoring organization.
  • EB-5 – This visa is for those whose qualifying invest in a U.S. business creates at least 10 full-time positions for U.S. workers.

Business immigration issues typically occur when employers attempt to reduce foreign national employees’  wages and/or hours. This is because most Visa categories require employers to pay foreign nationals at least the prevailing wage set for the job category based on figures established by the U.S. Department of Labor. Although most employers have no trouble paying the correct wages when profits are high and the business is succeeding, problems typically arise during periods of economic decline where the payment of that wage becomes difficult or impossible.  You should be aware that any reduction in pay to foreign nationals, even if it is a part of general companywide wage reduction, may put you in violation of applicable immigration laws.  Another area of a potential immigration violation related to foreign workers includes a reduction of their hours, transferring the employee to an off-site workplace, and both voluntary and involuntary leaves of absence.  All of these circumstances contain pitfalls to the unwary company and may subject you to legal repercussions.

One other important area is related to the termination of a foreign national employee.  In an effort to curtail migrant workers from being stranded in the U.S., some visa categories require employers to notify USCIS and the Department of Labor after a foreign national has been terminated.  Critically, under some circumstances, employers are responsible for providing reasonable costs for return transportation to the former employer since USCIS has adopted a policy that some visa petitions are valid until revoked, which may leave the employer liable for wages to the foreign national even after termination.

Other legal issues may arise if an employer terminates a U.S. worker while they have a pending application for a foreign national employee in a similar position in the company. In order to address this concern, both USCIS as well as the Department of Labor require internal recruitment for positions being offered to foreign nationals.

Finally, state and federal immigration laws also impose regulations on employers to verify a prospective employee’s eligibility for lawful employment in the United States. There are potentially significant consequences for employers who fail to comply with I-9 regulations which include: fines, worksite raids, damage to the company’s reputation, as well as potentially criminal charges.  These concerns are quite significant but must be balanced by concerns with attempting to verify the employment eligibility of a prospective employee by asking detailed questions about race, citizenship, national origin, or other topics that could create a risk for the employer of a discrimination lawsuit.  The best practice to avoid these dueling pitfalls is to design a single verification policy that everyone in your company understands, and to apply it equally across all of your employees. Attorneys at Barshay Sanders will work with you to design a policy to avoid these potential pitfalls.

EB-5 INVESTMENT IMMIGRATION

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Obtaining an EB-5 Visa requires an investor to make a capital investment of either $500,000 or 1 million, depending upon the location of the project. The following are the specific types of new business enterprises that EB-5 investors can take part in that can qualify for a visa.

  • Buying an existing business– EB-5 investors must do more than simply buy an existing business and/or make cosmetic changes to an existing business in order to qualify for an EB-5 visa for restructuring or reorganization of a business. For example, if an investor purchases an existing business, he/she must create at least 10 new jobs in addition to the existing headcount at the time of the capital investment.  An exception to this rule exists if an investor places his capital into an enterprise that has been open for at least 2 years and has incurred a net loss of at least 20% of its net worth over a 12- or 24- month period; under these circumstances the investor may bypass this job growth requirement as the enterprise would be considered a “troubled business.”
  • Creating a new business – If starting a new business, the investor does not need to participate in the creation of the enterprise. The investor is required, however, to prove that they invested the requisite amount and is engaged in the management of the new business.
  • Working with multiple investors – This is called pooling. In order to meet this criterion, each investor must put in the required amount and create at least 10 jobs per investor.

Qualified investments to EB-5 investors are described below.

  • The investment must be made in cash, equipment, or inventory to qualify and meet the definition of capital investment.
  • The full investment must be in escrow or already directly invested before an investor can qualify for an EB-5 Visa.