The primary go-to work visa for many foreigners seeking to move to the United States is the H1-B visa. In this article, we explain what is the H1-B visa and the requirements to secure one. We then discuss a valid alternative to the H1-B, the E2 Visa.
How Does the H1-B Visa Work and What is Required to Secure It?
The H1-B is a non-immigrant (does not lead to a green card) visa that allows a US employer to employ a foreign worker in a specialty occupation. The H1-B visa process is managed by the United States Citizenship and Immigration Service (USCIS). The requirements to secure the H1-B are as follows:
There must be an employment offer from a US employer;
The offer of employment must qualify as a “specialty occupation”;
The job offer must directly relate to the foreign worker’s field of work or study;
The wage for the job must meet the prevailing industry standard (or higher);
At the time of filing the petition, there must be an available visa number (unless the petition is exempt from numerical limits).
There is a cap of 85,000 visas per year. 20,000 of these visas are reserved for graduates of U.S. master’s programs. The USCIS generally receives over 200,000 applications for the H1-B.
What is the E-2 Visa and What is Required to Secure It?
The E-2 Visa is for individuals from a treaty country that want to invest money in an existing business or starting a business in the United States. Specifically, in order to qualify for the E-2 visa, investors must demonstrate the following:
Treaty – The investor must be from a country that has a valid treaty with the United States. This includes individuals who have dual citizenship with one of these countries
Investor – The applicant must be a current investor or a perspective investor. If they applicant has not yet invested in a business, she must show that she is in the process and very close to consummating the investment. To show this, the investor will need to have already organized the US business entity and moving to start operations. This could include renting space, purchasing an entity, hiring employees, etc. Before granting the visa, the USCIS will want proof that the investment has been completed.
Functioning Business – The business must be able to support the investor (and his/her family) and grow beyond that point. As such, the business must demonstrate that it has potential to operate and produce a profit. The investor must generally present a 5-year detailed business plan demonstrating how the business operations and financial projections. The purpose of this is to gauge whether the business will contribute to the US economy.
Substantial Investment – The E-2 visa, technically, does not have a minimum investment. The regulation simply states that the investment must be “substantial”. This generally means that it must constitute a major portion of the business ownership. It is generally understood that the investment should be more than $100,000. If the business is a startup, the investor must generally contribute 100% of the startup capital.
“Develop and Direct” the Enterprise – The investor must have the ability and be in a position to actively manage (“develop or direct”) the business. For a corporation, this could mean serving as the CEO or board chairman. Regardless of the position held, the investor must demonstrate that she plays a major role in the daily operations of the business.
What Makes the E-2 Visa Advantageous Over the H1-B
To start with, the H1-B visa is for employees of an existing company. The regulations are generally targeted to larger companies as well. The employer must play a major part in the application process. The E-2 is primarily oriented toward entrepreneurs or individuals who wish to work in a startup type of business. Of course, the big hold-up is that the individual must be from a treaty country, and she must have substantial capital to invest in the business. One benefit is that the E-2 is not subject to a lottery or number limits.
The E-2 has one major advantage over the H1-B. It allows the E-1 visa holder to bring her spouse and family members with her. The non-investing spouse then has the opportunity to apply for a work visa while she is present in the United States.
Lastly, the processing time for the E-2 visa is generally shorter than the H1-B.
LawTrades Knows Immigration Law
As you likely know, immigration law is an extremely complicated subject matter. If you are considering applying for a visa, you should work with talented legal professionals. The legal attorneys at LawTrades are experts in all matters of immigration law. They can provide you with all of the guidance and services you need to navigate this system.