Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, we discuss whether you can file an application to extend your stay on a tourist visa if you have overstayed.
Disclaimer: We do not recommend overstaying your duration of stay on any visa classification, because serious immigration consequences could result. However, this post discusses the options you may have, if you find yourself in the precarious situation where you have already overstayed, and you have a good faith reason for having overstayed.
Typically a person is given up to a 6-month period to remain in the United States on a tourist visa. At the end of those 6 months, the foreign national must depart the United States. The question is: are there any special circumstances in which a person may be allowed to extend their stay, where they have overstayed their visa?
In this case, the person stayed past the 6-month period of time allowed in the United States, and did not depart the United States. However, the person had a good faith reason for remaining in the United States. Toward the end of their stay, the individual had just given birth in the United States, and unfortunately some medical complications occurred that kept the individual in the United States past the 6-months authorized by their tourist visa. Because of these complications, the individual could not fly outside of the United States.
In this video attorney Jacob Sapochnick discusses an important E-2 visa subject: how do you prove source of funds for your E-2 investment?
If your source of investment is a loan: you must prove that your loan is secured by some personal property.
If your source of funds is a gift: you must prove that you have control of that gift and show the source of funds of the person that gave you the gift, for example if the funds came from the sale of the house, the documents of the sale of that house must be provided. If the funds came from savings, then the person would need to provide their savings account statements. If the funds came from someone’s salary, then pay stubs must be provided.
In general, if a person has given you a gift of money, and that is the source of your E-2 investment, that person must prove how they got the money.
Proceeds from Real Estate
If the funds are coming from the proceeds of a real estate sale then you must provide the deed, proof of the bill of sale and the transaction, etc.
If the source of funds is coming from investments such as stock, life insurance, then at least three years of tax returns must be provided, and three years of statements from those institutions.
In this video attorney Jacob Sapochnick discusses how entrepreneurs come to America.
What are the available visa options for an entrepreneur to launch a startup company?
One of the most common ways to launch a company in the United States is through the O-1A visa. This is a great option for entrepreneurs who have already established their reputation in their home country, have run a successful business abroad, and who wish to bring their unique talents and skills to the United States.
To qualify for an O-1A visa, the entrepreneur must demonstrate that they are exceptionally distinguished in their field or industry. This can be demonstrated by way of sustained recognition in the industry on a national or international level, or awards, titles, honorary distinctions, etc. The entrepreneur must also demonstrate that they have achieved a high level of expertise in their industry
The O-1A visa enables the entrepreneur to come to the United States to work for their own company, or for another company.
Another great option is the L-1A visa. If you are a startup founder and you already have a company in your home country, and you want to launch in the United States, you can set up a subsidiary or an affiliate of your startup in your home country and come to the United States as an executive such as a CEO.
Alternatively, you may wish to apply for the E-2 visa as an investor of the startup company that you wish to launch in the United States. To qualify for this visa type, you must be a national of a foreign country that has a qualifying treaty of friendship, commerce, navigation, or similar agreement with the United States.
In addition, the investment must be made in a real, operating commercial enterprise or active entrepreneurial undertaking productive of some service or commodity. Paper organizations, speculative, or idle investments do not qualify as real operating enterprises or active entrepreneurial undertakings.
If you are a citizen of Mexico or Canada, you can apply for a TN visa and be part of the company that you launch in the United States as an advisor or a higher-level position. The position that the entrepreneur will engage in must be a profession that is approved by NAFTA, and the entrepreneur must meet the qualifications for that position.
The E-1 Treaty Trader visa is a good option for entrepreneurs who wish to work in the technology sector. If you have a patent in your home country or have an idea to invest in the technology sector, and you are starting a company in your home county, you can set up a company in the United States as a founder without investing anything, because of the exchange of trade and technology.
National Interest Waiver
Company founders can apply for a green card by applying for a national interest waiver if you are a highly successful entrepreneur, and you can show the government that your level of innovation is at a high level.
Please visit our website for more information about these different options.
In this video attorney Jacob Sapochnick discusses a frequently asked question regarding the E-2 Investor Visa: Are loans or gifts a legitimate source of funds for the E-2 visa?
In order to get an E-2 visa as an investor in the United States, you must demonstrate that you will make a substantial investment in a new business enterprise or an existing business. As part of the application process, you must show the origin of the source of funds for that investment, and the source of those funds must be legitimate. Not all sources of funds will qualify for the E-2 visa. Many of our clients ask whether a gift of funds or a foreign bank loan will qualify as a legitimate source of funding for the E-2 visa.
Are gifts a legitimate source of funds for the E-2 visa?
Yes, provided the investor has possession of the funds, and the funds are irrevocably committed to the investor by the giver of the gift. The person that has given the gift to the investor must provide documentation showing the source of those funds to prove that the funds came from a legitimate source.
In this video attorney Jacob Sapochnick talks visa options for entrepreneurs.
In this video we cover four visa options that allow foreign entrepreneurs to live and work in the United States. These visa options also allow the foreign entrepreneur to bring his or her dependents to live with them in the United States.
Option #1 L-1 Visa for Executives, Managers, and Essential Employees:
There are two types of visas available under the L-1 category: 1) L-1A Intracompany Transferee Executive or Manager and 2) L-1B Intracompany Transferee Specialized Knowledge.
The L-1A category is a non-immigrant visa classification for aliens seeking to work in the United States in an executive or managerial capacity on an assignment of a temporary nature for a U.S. subsidiary or parent company of their foreign employer.
The L-1A visa classification allows a foreign company to transfer an executive or manager to the U.S. subsidiary or parent company. If an affiliated U.S. subsidiary or parent company does not yet exist, the L-1A classification allows the foreign company to send the executive or manager to the United States for the purpose of establishing the affiliated subsidiary or parent company.
L-1B: If the alien is not employed in an executive or managerial capacity, the L-1B visa classification comes into play. To be eligible for the L-1B visa, the petitioner must demonstrate that although the alien is not employed in an executive or managerial capacity with the company, the alien possesses specialized knowledge and can represent the organization’s interests in the United States.
Both the L-1A and L-1B require the beneficiary to have worked abroad for the foreign employer for at least one year within the proceeding three years.
Pro: the L-1 visa leads to a green card
Option #2 E-2 Investor Visa:
The E-2 treaty investor visa is a non-immigrant visa that allows foreign entrepreneurs from treaty nations to enter the United States and carry out investment and trade activities. Investment activities include the creation of a new business in the United States or investment in an existing enterprise. The investment must be significantly proportional to the total investment, that is, usually more than half the total value of the enterprise or, if a new business, an amount normally considered necessary to establish the business.
In this video we discuss how you can get an E-1 treaty trader visa without trading actual goods.
To qualify for an E-1 Treaty Trader Visa you must be a citizen of a treaty trader country involved in international trade
You must be coming to the U.S. to carry on substantial trade or to develop and direct the operations of an enterprise that is a commercial trader with your country of nationality
The trade must be conducted principally between the U.S. and the treaty country
The U.S. enterprise must conduct more than 50% of its total trade volume with the treaty country
The trade may be of a good, commodity, services, or technology
If you are the owner of patented technology in your treaty trader country for example you may qualify for the E-1 treaty trader visa. To qualify for the E-1 visa, you do not need to have actual goods coming from the treaty country to the U.S., in this case the E-1 treaty trader visa can be obtained by showing that a form of technology along with the rights will be developed in the U.S.
This was the exact situation of our client, an Israeli national who owned patented technology for physical exercise equipment, designed and licensed in Israel, but produced in China. To overcome the fact that the equipment was produced in China using Israeli technology, our office made sure to establish that the rights to build the products in China had to be approved and signed off by the company in Israel which owned the patent. In addition, our office strengthened the case by furnishing the agreements between the Israeli company and the manufacturing facility in China, to show that although the product was being manufactured in China, the Chinese facility was in fact controlled by an Israeli designer to ensure quality control and compliance with the Israeli technology owned by our client. Finally, we showed that the majority of the funds to finance the operation was coming from Israel, the treaty trader country, and documented how the product would be coming to the United States.
By now you know that the H-1B cap has been reached for Fiscal Year 2019. But what happens if you were not selected in the H-1B visa lottery?
In this post, we will discuss some alternatives to the H-1B visa that will allow you to stay and work in the United States.
The O-1 “Extraordinary Ability” Visa:
This visa type is for aliens of extraordinary ability in the sciences, education, business, athletics, motion picture, television, or arts industries who have received national and/or international acclaim in their field. An alien on an O-1 visa may live and work in the United States for a period of up to three years.
An O-1 visa is a great visa for people in the start-up world and technology sector. This visa is for people holding an advanced degree (at least a master’s degree) who have either started their own business, have patented inventions, are leading experts in their fields, and/or have gained notoriety in their fields as evidenced by awards and other national recognitions.
TN Visa for Mexican and Canadian Nationals
The TN visa allows nationals of Mexico and Canada to work in the United States, provided their profession is on the NAFTA list. The maximum period of initial admission to the US is three years, but visa holders may apply for extensions in amounts of one year.
E-3 Visa for Australian Nationals
Similar to the H-1B visa, the E-3 classification allows Australian nationals to travel to the United States to work in a specialty occupation. Applicants must have a bachelor’s degree or its equivalent to qualify and must work in a specialty occupation often associated with the STEM occupational fields. The E-3 visa is issued for an initial period of no more than 2 years, with extensions granted in 2-year increments.
In this video, attorney Jacob Sapochnick sits down with Real Talk San Diego to discuss our diverse immigration practice. Our office specializes in all aspects of immigration and nationality law. We assist entrepreneurs and investors who wish to come to the United States to set up and start their businesses in this country, foreign spouses and fiances of US Citizens who wish to immigrate to the United States, as well as students, engineers, athletes, musicians, hospitality workers, nurses, and other foreign workers who wish to live and work in the United States for a temporary period of time. We also specialize in assisting foreign workers obtain permanent residency through their employers. But that’s not all. To discover all that we have to offer please visit our website. If you are interested in exploring your options please contact our office to schedule a first time consultation. Our attorneys and staff members are fluent in Spanish, Mandarin, Arabic, Hebrew, French and Russian.
In this video, attorney Jacob Sapochnick speaks with personal injury attorney Mitch Jackson and gives viewers insights on how to secure a job in the United States as a foreign worker, how to penetrate the market, and stand out from the crowd.
Begin researching the different employment visa types to determine which visa is right for you depending on your level of education, skill, and the field that you want to work in. For example if you are a software engineer the H-1B visa will be a good option for you, if you want to start your own business an E-2 visa may be right for you. Once you have done some preliminary research, reach out to an immigration attorney to discuss the pros and cons of different visas that may be available to you
Understand the requirements for the visa you would like to obtain so that you can explain the process to a potential employer
Attend as many networking events as possible in your particular industry, if possible in the United States
Use social media to reach out to potential employers
Show employers how you can build value for their business
Carefully tailor your resume/build a website to show employers your credentials
For more tips please keep watching.
To purchase Jacob’s book My American Job please click here.
In this video, attorney Jacob J. Sapochnick sits down with international business students studying at INSEAD, a graduate business school in France. Jacob asks them a burning question: Despite all of the obstacles foreign workers face in immigrating to the United States, and the President’s hard-line stance on immigration, are foreign workers still interested in living and working in the United States? Click here to join the conversation.
Why do you want to live and work in the US?From INSEAD 🇫🇷 France