US VISA  Basics
William D. Fong

William D. Fong, is Board Certified in Immigration and Nationality Law by the State Bar of Texas, Board of Legal Specialization.  He has been named as a “Texas Super Lawyer” by Texas Monthly and “Houston’s Best Lawyers” by  Texas Magazine.   Mr. Fong is an adjunct professor at the Thurgood Marshall School of Law teaching employment-based and family-based immigration law.  Fong & Associates clients include Fortune 500 companies, utility companies, hospitals, international businesses, universities and colleges, non-profit organizations, small businesses and individuals.  The firm has offices are in Houston and the Woodlands, Texas. For more information, visit www.Fonglegal.com.

B-1 and B-2 Nonimmigrant Visa
Visitor for Business or Pleasure

General Requirements for Eligibility-Non-Immigrant Intent

    Stay in the U.S. for a limited duration.
    Intent to depart at the expiration of authorized stay.
    Maintain a foreign residence which the visitor has no intention of abandoning.
    Adequate finances to pay for travel to the U.S., stay in the U.S. and return trip from the U.S.
    Only engage in "legitimate activities" relating to business or pleasure. (No work or study)

B-1 Visitor for Business-Legitimate Activities: Generally; (1) will not engage in productive employment, (2) activity is associated with international trade or commerce, and (3) principal benefit of the activity is for the foreign entity.

    Solicit sales, negotiate contracts, or take orders for work to be performed outside the U.S.
    Procure goods, components, or raw materials for use outside the U.S.
    Support of service or sales contracts for equipment or machinery (installation, servicing, repair, training of U.S. workers)-construction and building trades excluded.
    Consultations with U.S. business associates.
    Litigation activities.
    Attend scientific, educational, professional or business conferences, or seminars.
    Independent research, i.e. market conditions, product research.
    Activities of a professional to arrange employment in the U.S. (i.e. job interview).
    Activities of a foreign investor to set up a U.S. investment.
    "B-1 in lieu of H-1B"-Rendering professional services in the U.S. who would normally be classified as H-1B specialty occupation workers, but are employed by a foreign company and paid a salary abroad. (some consulates do not recognize this as a valid activity)
    "B-1 in lieu of H-3" - Persons who will receive training who would normally be classified as H-3 trainees, but are employed by a foreign company and paid a salary abroad. (some consulates do not recognize this as a valid activity and do not issue B visas)
    Members of the Board of Directors of a U.S. corporation (even if paid a fee).
    Domestic servant of a U.S. citizen or non-immigrant on temporary assignment in the U.S.
    Professional athletes and artists/cultural entertainers competing only for prize money.
    Ministers on evangelical tour or temporarily exchanging pulpits.
    Members of a religious denomination performing missionary work.
    Foreign medical school student taking an "elective clerkship" at a U.S. hospital.
    Clerkship merely and exclusively to observe the U.S. business or professional activity.
    B-1 visitors can take short courses of study incidental to their trip.


B-2 Visitor for Pleasure - Legitimate activities include:

    Tourism
    Visiting family and friends.
    Seeking medical attention.
    Attending non-business conventions, conferences or meetings.


Applying for the B1/B2 Visitor Visa

Application is made to the U.S. consulate in home country (In come cities you may contact a visa services company to handle the application)

    Application form DS-156 and possibly DS-157
    Photograph (passport style)
    Passport valid for at least 6 months
    Visa Application fee and reciprocity fee (varies by country)

Supporting documents
Letter from employer, invitation letter from U.S. company, round trip airline ticket, proof of financial
support, proof of ties to home country, etc.

Validity of the Visa
Number of entries - can be multiple, single or a specific number of entries
Period of validity - varies widely and no longer issued for "Indefinite"

Admission to the U.S. as a Visitor

    Length of stay in the U.S. as a visitor varies and is determined by the USCIS officer at the port of entry as
         noted on the I-94 card.
    Extension of visa status
    Change of visa status

Visa Waiver Program (WT and WB)

    90-day limit strictly enforced.
    No extensions or change of status (only limited exceptions).

Visa Waiver Pilot Program Countries

Andorra       Finland         Japan                Norway
Australia      France          Liechtenstein    San Merino
Austria        Germany       Luxembourg     Spain
Belgium*     Iceland        Monaco             Switzerland
Brunei         Ireland          Netherlands       Sweden
Denmark     Italy              New Zealand     United Kingdom

Professional Visa

Professional or Specialty Occupation Visa
The H-1B visa authorizes employment of a worker in a professional or specialty occupation. The
visa can be extended for a total of 6 years.

Visa Requirements
The H-1B visa requires
   (1) a professional or specialty occupation position that requires a minimum of a bachelors degree;
   (2) the employee has that degree or its educational/employment equivalent;
   (3) a salary which meets the prevailing wage determination; and
   (4) a Labor Condition Application (LCA) annotated by the Department of Labor (DOL).

The employer must agree to pay return transportation expenses to the employee's home country if the employee is dismissed before the end of the authorized period of stay. The employer is not responsible for such expenses if the employee voluntarily ends employment or the authorized period of stay expires.

The H-1B Visa Petition
Prevailing Wage Determination: The Company must pay the beneficiary a salary at least equal to 100% of the wage of similarly situated employees. Our firm obtains a Prevailing Wage Determination from the Bureau of Labor Statistics OES wage site for the beneficiary's position for that geographic area.

Labor Condition Application: The INS requires the U.S. employer to file a Labor Condition Application (LCA) with the Department of Labor (DOL). Our firm prepares the LCA for review by the company. We file the LCA with the DOL, which processes the application immediately.

The LCA requires the company to agree to specific terms for the benefit of U.S. workers. First, the company will pay the beneficiary the same salary as other similar employees. Second, the company affirms that the employment of the beneficiary will not adversely affect the working conditions of other similar employees within the company, and that there is no strike, lockout, or work stoppage as part of a labor dispute within the company. Third, prior to filing the LCA, two notices were posted at conspicuous places at the company. The notices contain specific job information including the job title and salary of the position. If there is a bargaining representative for such employees, notice to that representative is required rather than the posted notices.

Within a day of filing the LCA, supporting documents must be available for review at the place of employment. The USCIS and the DOL may review such documents.

H-1B Petition and Supporting Documents. The H-IB petition includes several INS forms; a support letter on company letterhead with details of the company, the position and qualifications of the employee; company documentation; and evidence of the qualifications of the employee.

H-1B Employer Filing Fees: All H-1B employers (except those determined as "exempt") need to pay an additional $1,500 Education and Training Fee if employing 25 or more "full-time equivalent" employees or $750 if employing less than 25 "full-time equivalent" employee. Effective March 8, 2005 all H-1B employers will be required to pay a $500.00 Anti-Fraud Fee.

Approval of the H-1B Visa
The INS issues an approval notice as evidence of the employee's H-1B status. The H-1B visa allows the employee to work for the petitioning company only. The employee's dependents are issued approval notices as evidence of their H-4 status.

The employee must have an H-1B visa stamp in the employee's passport for travel out of and return to the U.S. This process of getting the visa is referred to as visa consular processing. Our firm assists clients and their families in applying for their visas at the U.S. Consulates as an additional legal service. Please contact our office for detailed information.

Professional Visa Document List

Employee (Beneficiary)
Photocopies only
* Current passport (identity pages and all pages with any U.S. visa, stamp or notation)
* I-94 Card (front and back)
* Previous INS approval notices (H-1B; F-1; I-20; IAP-66; Employment Authorization Card)
* Detailed resume
* Educational documents (Diplomas, certificates, transcripts, educational evaluations)
   If documents are not in English, exact English translations are required
* Passports and I-94 Cards of all accompanying family members


Employer (Petitioner)
* Proposed position - Job title, detailed job description, salary, and education and experience requirements
* Annual reports
* Company brochures
* Company checks (1) Education and Training fee and (2) Anti-Fraud fee (when applicable)

Specialized Knowledge Visa

Specialized Knowledge Intracompany Transferee Visa

The L-1B visa authorizes temporary employment with specialized knowledge transferred from a foreign company to a related U.S. company. The visa can be extended for a total of 5 years.

Visa Requirements
The L-1B visa requires
  (1) a foreign company and a U.S. company to be related as a parent branch, subsidiary or affiliate;
  (2) the companies must be currently doing business;
  (3) the employee must have at least one year of experience with the foreign company in a position requiring
       specialized knowledge; and
  (4) the employee must be employed in a similar position with the U.S. company.

Please note that L-1B visa employees are not allowed to be primarily stationed at the worksite of an unaffiliated employer. An additional CIS fee of $500 must be paid for all L-1 applications for Fraud Prevention and Detection.

Specialized Knowledge
Specialized knowledge means special knowledge possessed by an employee of his or her petitioning company's product, service, research, equipment, techniques or management. The employee may be an expert in the company's processes and procedures or possess knowledge of other interest particular to the company which gives the company an edge in the international market. For example, the employee may work with the procedures or have extensive knowledge of products by the company.

Approval of the Visa
The CIS issues an approval notice as evidence of the employee's L-1B status. The visa allows the employee to work for the petitioning company only. The employee's dependants are issued approval notices as evidence of their L-2 visa status.

The employee must have an L-1B visa stamped in the employee's passport for travel out of and return to the U.S. This application is done at the U.S. consulates outside the United States and is referred to as visa consular processing.

Work Authorization for Spouses
The spouses of L-1 visa holders are allowed work authorization in the U.S. Spouses of L-1 visa holders file for work authorization with the CIS Service Center which will be granted for the period of authorized stay granted the L-1 principal.

Specialized Knowledge Visa Document Checklist

Employee
* Resume (with detailed description of job duties and dates of employment)
* Beneficiary's experience letter (title, dates of employment and qualifications)
* Beneficiary's diplomas degrees, and certificates
* Evidence of Beneficiary's status (visa, I-94, approval notices)
* Dependant's information (date of birth, country of birth, relationship, current address)

U.S. Company
* Certificate of Incorporation and Articles of Incorporation
* Stock certificates (showing total ownership)
* Business registration, business license, business permits, DBA'S
* Organizational chart

* Company information (history, facilities, products, number of employees, clients)
* Commercial lease
* Brochures, catalogs, promotional and product literature, and advertisements
* Invoices, contracts, bill of lading, and other business documentation
* Company letterhead

* Corporate tax returns (IRS 1120, IRS 941, TWC C-3)
* Financial statements (balance sheet, income statement, asset & deficit, payroll)
* Bank account statements

Foreign Company
* Certificate of Incorporation and Articles of Incorporation
* Business registration, business license, business permits
* Organizational chart

* Company information (history, facilities, products, # of employees, clients)
* Commercial lease
* Brochures, catalogs, promotional and product literature, and advertisements
* Invoices, contracts, bills of lading and other business documentation

* Corporate tax returns
* Financial statements (balance sheet, income statement, asset & deficit, payroll)
* Bank account statements

Executive Visa

Executive or Manager Intracompany Transferee Visa
The L-1A visa authorizes temporary employment of an executive or upper level manager transferred from a foreign company to a related U.S. company. The visa can be extended for a total of 7 years.

Visa Requirements
The L-1A visa requires
  (1) a foreign company and a U.S. company to be related as a parent, branch, subsidiary or affiliate;
  (2) the companies must be currently doing business;
  (3) the employee must have at least one year of executive or upper level managerial experience with the
        foreign company; and
  (4) the employee must be employed as an executive or manager with the U.S. company.

New Office L-1A
Foreign companies are allowed to establish U.S. companies and petition for L-1A visas for executives and upper level managers to begin company operations. The company and Beneficiary must meet the same basic requirements as the L-1A visa.

The U.S. company must submit a commercial lease to show it has adequate office space for operations and bank account statements or wire transfers to show that is has adequate funds to begin operations. The company must submit evidence that within one year the U.S. operation will support an executive or managerial position. The petition must include information about the U.S. company including; the type of business, organizational structure, financial goals, and the size of the U.S. investment. The petition must include information about the foreign company including; the organizational structure and the financial ability of the company to support the U.S. company.

Premium Processing
The USCIS has a business service called Premium Processing where the USCIS responds within 15 working days from the date of the receipt of the application. There is $1,000 INS filing fee for the Service. This fee is an addition to other applicable filing fees that the applicant must pay.

Approval of the Visa
The USCIS issues an approval notice as evidence of the employee's L-1A status. The visa allows the employee to work for the petitioning company only. The employee's dependents are issued approval notices as evidence of their L-2 status.

The employee must have an L-1A visa stamped in the employee's passport for travel out of and return to the U.S. This application is done at U.S. consulates outside the United States. The employees and dependents must have L-1 visas in their passports for travel back to the U.S. This application is made at U.S. Consulates and is referred to as visa consular processing.

Work Authorization for Spouses
The spouses of L-1 visa holders are allowed work authorization in the U.S. Spouses of L-1 visa
holders file for work authorization with the USCIS Service Center which will be granted for the period of authorized stay granted the L-1 principal.

Executive Visa Document List

Employee
* Resume (with detailed description of job duties and dates of employment)
* Beneficiary's experience letter (title, dates of employment and qualifications)
* Beneficiary's diplomas, degrees, and certificates
* Evidence of Beneficiary's status (visa, I-94, approval notices)
* Dependent's information (date of birth, country of birth, relationship, current address)

U.S. Company
* Certificate of Incorporation and Articles of Incorporation
* Stock certificates (showing total ownership of the company)
* Business registration, business license, business permits, DBA's
* Organizational chart

* Company information (history, facilities, products, number of employees, clients)
* Commercial lease
* Brochures, catalogs, promotional and product literature, and advertisements
* Invoices, contracts, bills of lading, and other business documentation

* Corporate tax returns (IRS 1120, IRS 941, TWC C-3)
* Financial statements (balance sheet, income statement, asset & deficit, payroll)
* Bank account statements
* Wire transfers; certified checks or other evidence of capitalization in the U.S.

Foreign Company
* Certificate of Incorporation and Articles of Incorporation
* Business registration, business license, business permits
* Organizational chart

* Company information (history, facilities, products, # of employees, clients)
* Commercial lease
* Brochures, catalogs, promotional and product literature, and advertisements
* Invoices, contracts, bills of lading and other business documentation

* Corporate tax returns
* Financial statements (balance sheet, income Statement, asset & deficit, payroll)
* Bank account statements

Investor Visa

Treaty Investment Visa
The E-2 nonimmigrant visa authorizes a citizen of a treaty country to oversee their investment in the U.S. or work with a U.S. business which is at least 50% owned by citizens of the treaty country. The visa can be extended every two (2) years without limitation on the total period of stay. The spouse and minor children may accompany or follow to join the E-2 principal. Employees from the treaty country, including executives, managers and essential employees are eligible for the E-2 visa.

E-2 Treaty Investor Visa Requirements
The E-2 visa requires
  (1) a treaty allowing investment in the U.S between the U.S. and the country of which the person is a national;
  (2) the investor is a treaty national or a qualifying organization (50% or more owned by treaty nationals);
  (3) the applicant is actively in the process of investing a substantial amount of capital;
  (4) entering the U.S. to develop and direct the investment, or entering the U.S. to work in an executive,
       managerial or "essential employee" capacity; and
  (5) the U.S. investment is fifty percent (50%) owned by a treaty national or qualifying organization.

Sample Treaty Countries
The following countries have investment treaties with the United States which qualify for the E-2 visa. Many other countries qualify for the treaty investment visa.

Argentina; Australia; Austria; Bangladesh; Canada; Colombia, Ecuador; Finland; France; Germany; Greece; Ireland; Italy; Jamaica; Japan; Jordan; Korea; Mexico; the Netherlands; Norway; Pakistan; the Philippines; Romania; Taiwan; Sweden; Switzerland; Thailand; Turkey and the United Kingdom

Premium Processing
The CIS has a business service called Premium Processing where the CIS responds within 15 working days from the date of the receipt of the application. There is $1,000 INS filing fee for this service. This fee is an addition to other filing fees that the applicant must pay.

Approval of the Visa
U.S. Citizenship and Immigration Services has jurisdiction to approve change of status to E-2 visa classification and the U.S. Department of State, through U.S. Consulates, have jurisdiction to approve E-2 visa issuance.

The CIS issues an approval notice as evidence of the principal investor or key employee's E-2 status. The approval notice allows the employee to work for the petitioning company only. Dependents are issued approval notices as evidence of their E-2 status. The U.S. Consulate issues the E-2 visa in the passport as evidence of the principal investor or key employee's E-2 status. The visa in the passport is annotated with the name of the petitioning company.


Work Authorization for Spouse
The spouses of E visa holders are allowed work authorization in the U.S. Spouses of E visa holders file for work authorization with the CIS Service Center and pay the applicable filing fees. The investor, employees and dependents must have E-2 visas in their passports for travel back to the U.S. This application is made at U.S. Consulates and is referred to as visa consular processing.


Investor Visa Document List

E-2 Applicant
* Resume (with detailed description of job duties and dates of employment)
* Diplomas, degrees, and certificates
* Evidence of nonimmigrant status if present in the U.S. (visa, I-94, approval notices)
* Passports of E-2 Applicant and all dependents (passports valid for at least 6 months)

U.S. Company or Business Enterprise
* Certificate of Incorporation and Articles of Incorporation
* Stock certificates (showing total ownership of the company)
* Business sale agreement or stock purchase agreement

* Business information (history, facilities, products, number of employees, clients)
* Business appraisal, business valuation or prospectus
* Business registration, business license, business permits, DBA's
* Commercial lease
* Brochures, catalogs, promotional and product literature, and advertisements
* Invoices, contracts, bills of lading, and other business documentation
* Photographs of the business (if applicable)

* Corporate tax returns (IRS 1120, IRS 941, TWC C-3)
* Financial statements (balance sheet, income statement, asset & deficit, payroll)
* Bank account statements
* Bank wire transfers; certified checks or other documentation of investment in the U.S.

Foreign Company (if applicable)
* Certificate of Incorporation and Articles of Incorporation
* Business information (history, facilities, products, number of employees, clients)
* Business registration, business license, business permits
* Commercial lease
* Brochures, catalogs, promotional and product literature, and advertisements
* Invoices, contracts, bills of lading and other business documentation
* Photographs of the business (if applicable)

* Corporate tax returns
* Financial statements (balance sheet, income Statement, asset & deficit, payroll)
* Bank account statements

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