H-3

H-3 nonimmigrant visa category allows foreign nationals coming temporarily to the United States as either a:

• Trainee to receive training in any field of endeavor, other than graduate medical education or training, that is not available in the foreign national’s home country.

• Special Education Exchange Visitor to participate in a special education exchange visitor training program that provides for practical training and experience in the education of children with physical, mental, or emotional disabilities.

Regulations specifically prohibit the training program from being “designed primarily to provide productive employment.” However, some employment will be permitted if it is incidental and necessary to the training.

An H-3 Trainee may be approved by the CIS to stay in the U.S for a period of up to two (2) years.

The H-3 trainee CANNOT engage in productive employment unless such employment is incidental and necessary to the training. “Productive employment” has been found to occur in cases where (a) a substantial salary has been offered to the trainee, AND (b) a training program is long and repetitious which consists primarily of on-the-job-training.

Special Considerations of the H-3 Visa

The company proposing the training is required to demonstrate that:

• The proposed training is unavailable in the alien’s own country;

• The trainee will not be placed in a position in the normal operation of the business in which US citizens and permanent resident workers are regularly employed;

• The trainee will not engage in productive employment unless such employment is incidental and necessary to the training; AND

• The training will benefit the trainee in pursuing a career outside the United States.

A training program CANNOT be approved if the program:

• deals in generalities with no fixed schedule, objectives, or means of evaluation;

• is incompatible with the nature of the company’s business or enterprise;

• is on behalf of a trainee who already possesses substantial training and expertise in the proposed field of training;

• is in a field in which it is unlikely that the knowledge or skill will be used outside the United States;

• will result in productive employment beyond that which is incidental and necessary to the training- “productive employment” has been found to occur in cases where (a) a substantial salary has been offered to the trainee, AND (b) a training program is long and repetitious consisting primarily of on-the-job-training;

• is designed to recruit and train aliens for the ultimate staffing of domestic operations in the U.S.;

• does not establish that the petitioner has a physical plant and sufficiently trained personnel to provide the specified training; OR

• is designed to extend the total allowable period of practical training previously authorized for a nonimmigrant student.

The “Six-Month Residence Outside the U.S” Rule

If an H-3 Trainee has spent two years in the United States as an H (including H-1B) or L nonimmigrant, he or she may NOT seek an extension, change status, or be readmitted to the U.S in an H or L status unless he or she has resided and been physically present outside the U.S. for the immediately prior six months.

Commercial Real Estate

Commercial Real Estate (CRE) is income-producing property used solely for business (rather than residential) purposes. Examples include rental buildings, retail malls, shopping centers, office buildings and complexes, and hotels. CRE is also including the acquisition, development and construction of the land and building project. During the commercial real estate transaction, the professional assistant from experienced and reliable attorneys is incredible important.

For example when you purchase a rental building in the New York City, while you are signing the purchase agreement, you shall make sure that you have the due diligence contingency clause in the purchase agreement so that you will have sufficient time and opportunity to conduct due diligence search in order to protect your investment.

The due diligence search briefly includes the following parts:

1. Environmental assessment. Since lots of the land in New York City was used as chemical factory, gas station, and industrial space in the 19^th -20^th century, there is a possibility that the demised land is contaminated by oil or other chemical material. Therefore, it is important for the purchaser to conduct the environmental site assessment and have the assessment report reviewed by both environmental engineer and attorneys during due diligence period. In case the demised land is contaminated, the purchaser’s attorney will provide reasonable solutions to the purchaser, further negotiate with seller and protect purchaser not to suffer from unnecessary loss or potential lawsuit.
2. Lease and rent roll review. In the event purchasing a rental building, reviewing lease and rental roll is critical to the purchaser. In New York City, most of the rental buildings are governed under tenant protection rules and regulations such as

rent control or rent stabilization. Therefore, reviewing the lease and related documents to see if the seller is complying with the said rules and regulations and investigating if the building is properly registered under the same are vital.  Without the professional legal help, the purchaser may ends up with high-amount unpaid fees and penalties or being assigned with illegal lease after the closing of transaction, which is not desirable for any investor.

Besides the said rent control and rent stabilization rules and regulations, there are other landlord-tenants issues which shall be studied by the purchaser’s attorney and disclose to purchaser during the due diligence period in order to protect the purchaser and his/her investment.

3. Title search. Title search is equally crucial to the purchaser. Since the land title chain transfer and its documents are numerous and complicated in New York City, purchaser attorney’s study of title report is essential in order to disclose all defects of the land title and provide the feasible solution to purchaser to complete the transaction. The title defects are including but not limited to, defected ownership of seller, easements limits the rights of the land owner, covenants impact the use of the land, unpaid mortgage and judgment of seller/interested parties, claims from the creditors, etc. Also, the title report will disclose relevant violations in the government records, so that the purchaser may avoid unnecessary monetary losses by correcting the same before the closing of transaction.

The above is a short summary of the due diligence search in the rental building purchase in New York City. The content of the due diligence search in commercial real estate is far more than stated above and maybe varied from case to case. For example, if you are going to purchase a hotel, its due diligence search is very different from stated above. In every instant, the professional assistant from an experienced attorney is very necessary and important to protect the investment. We urge you to seek professional help when you decide to make a valuable investment.

Another area, which you can gain huge help from an experienced attorney, is when you seek for financing in the commercial real estate transaction. Just as with home mortgages, banks and independent lenders are actively involved in making loans on commercial real estate. Also, insurance companies, pension funds, private investors and other sources, including the U.S. Small Business Administration’s 504 Loan program, provide capital for commercial real estate.

An experienced attorney will help you to choose the correct formality to obtain the loan, negotiate with the lender for better offer, comply with the lender’s requirement, and corporate with the lender at closing while you are financing for your investment. Not only you will have a smooth transaction, but also you will save a lot of time and money by retaining an experienced and reliable attorney.

There are lots of other legal aspects of CRE transactions are not covered in this short article. However, as far as you can tell, CRE transactions are complicated and sophisticated so the professional legal help is defiantly a must.

Internal Revenue Code section 1031 exchange

Section 1031 of the Internal Revenue Code and the deferred exchange regulations allow a seller of real estate to defer the federal gain on the sale of real property held for business use or for an investment if:

1. The property is used in a trade or business or held for investment,
2. The property is exchanged for like-kind property, and
3. Certain time frames for identification and acquisition of the replacement property are met.

In most cases, a 1031 exchange proceeds as relinquished property is first sold, then the replacement property is purchased. The IRS has also determined that the reverse sequence also will avoid capital gains taxes, provided certain requirements are met. This is called a "reverse 1031". In a reverse 1031 exchange, the taxpayer first buys the replacement property then sells the relinquished property.

To take maximum advantage of this opportunity, you will need the help from many professionals, such as a CPA, a Qualified Intermediary, aka escrow agent, and definitely an experienced attorney.   All kinds of 1031 exchange shall be well planned far away from beginning of the transaction.  Since there are limitations on the timeline of the transaction, the value of the replacement property, the person/entity shall handle the sales proceeds and hold the property title, etc, you will need an experienced attorney to carefully explain and instructed you with the laws and rules of 1031 exchange. Also, there definitely shall be specified language in the purchase agreement in order to protect the interest of the taxpayer. Therefore, retaining an experience attorney is very important.

1031 exchange is not only simply involving the deferral of the capital gain tax payment to make your next investment bigger, it also can be combined with estate planning to save more tax. One of the major benefits of participating in a 1031 exchange is that you can take that tax deferment with you to the grave. If your heirs inherit property received through a 1031 exchange, its value is “stepped up” to fair market, which wipes out the tax deferment debt. This means that if you die without having sold the property obtained through a 1031 exchange, the heirs receive it at the stepped up market rate value, and all deferred taxes are erased. An experienced attorney should be consulted in order to make your estate planning and 1031 exchange combined successfully.

Jun Wang and Associates, P.C. has extended experience on all kinds of 1031.

Bank Closing

We work closely with institutional banks and private mortgage lenders for closing financing as well as refinance transactions. The firm has been recently selected by one of the major international banks as its preferred attorney firm, for the expanding foreign national mortgage program.  Additionally, the firm has been approved to represent the following on mortgage and loan closings:

Purchase Money Mortgage/Private Financing Agreements

Due to bad credit history, long-time and high-costs and bank financing or complicated application procedure, some homeowners are unable or unwilling to secure a conventional mortgage from a bank, instead, they choose to finance the home from a third party private lender or seller.

When a buyer uses a purchase-money mortgage, the seller extends financing to the buyer. The buyer then repays the seller according to the agreed upon terms.  Likewise, if the lender is a third party, we call it private financing.  The buyer can combine this private mortgage with a bank mortgage and cash down payment.  Interest rates associated with private mortgages tend to be higher than those associated with traditional mortgage loans. However, it’s upon both parties’ flexible mutual agreements.  Regardless of how the financing is secured, we always suggest lenders with UCC filings and request debtor pay for recording tax and title insurance, just like a conventional mortgage. This is to ensure the public notice and easy enforcement, to lower default risk.

Condominium and Cooperative Board and Management Representation

New York Building and their management offices, as well as other parties in real estate industry, are required to be represented by lawyer for closings and daily documents work. Our services include board’s general counsel, by-law, house rule and other types of document review, third-party contracts, voting regulations and board meeting presentation, and regulatory issues. The firm currently acts as general counsel to numerous cooperative and condominium boards, and investment owners of large number of shares or units.

AIA and Construction Contracts

It is a popular misconception, especially true among the professionals, that standard form, contracts may not need to be reviewed by an attorney. This is common among real estate companies, institutional landlords, architectural or construction firms. For reasons set forth below, we highly recommend architectural and construction firms (or the clients who retain such), utilizing standard form such as an American Institute of Architects (AIA) contract to consider a contract review with an experienced attorney. This is because sometimes the forms may appear to be standard, but the drafter may have modified, deleted or added clauses that are not originally in the standard form.

Only a careful review by an attorney experienced in this field will be able to spot these subtleties and makes suggestions favorable to the client. Incidentally, construction projects have the propensity to develop issues such as schedule delays, cost issues and payment disputes. Although usage of AIA contracts is popular, it is crucial that you receive legal advice on how to tailor the contract to fit your unique project needs.

By pooling the knowledge of our attorneys from various practice areas, such as real estate, general corporate and general counsel teams, we can collectively ensure your contract covers provisions that will protect you and minimize your exposure to liabilities. Some of the most important provisions to be mindful include indemnity, consequential damages, limitation of liability, and costs reimbursement, owner financing, and something trending points : applied industrial art copy right, also called deign copyright.

Auction and Real Estate owned by Bank (R.E.O.) Closings

The nature of Auction and R.E.O, closings leave attorneys with very little space for negotiation. However, at the same time, calls for intensive  due  diligence before the contract is fully executed. In some cases, the due diligence is required even before signing a binder, with immediate payment of the deposit, which is also common in practice.  We are capable of providing clients a due diligent report within 24 hours, rendering legal advice on potential title defects, and go through a sample short sale contact which can provide first time buyers a basic understanding of the potential risk and key term alerts when they sign the paper on Auction day.

Short Sale Negotiation and Closings

Short sales are intended to prevent a home from going into foreclosure. With more than a decade of  representing both sellers and purchasers, thus gaining an unique perspective, as well as experience from both end, especially thru the 2008-2009 financial crisis, we understand more than ever, a strong, collaborative working relationship must be built among all professionals to make this type of deals close. A short sale negotiated by an attorney can save seller and lender time and money. Bank will only allow a short sale if they believe it will result in a financial loss smaller than foreclosing. Our firm is especially well versed in this type of deal, since we have closed hundreds of deals in subprime crisis, thus achieving faster and less expensive results for banks, and saved home owners’ credit by avoiding the undesirable foreclosures.

Lease Review

Leasing has become increasingly complex in Greater New York City area. Though with the advancement in technology, more and more people tend to just visit a “sample lease” website and pay a small fee to generate and download the form to use.  Most of the time no one (either side of the signor) will even bother to read the entire lease before signing. Simple and cheap, right? This is true until a dispute arises (i.e., one party wants to terminate the lease sooner or rent has not been paid for an extended period).  Because the lease was a “standard” or “sample” lease, many key terms could be missing or even worse, it is not even for the right State, thus making it very difficult to enforce if there is a breach of contract. A lease is a business contract, there are a lot of crucial terms that are usually obscured in dense legalese. Considering the hefty costs associated with most real estate investments, no matter it’s a rental apartment or a commercial office space, from a legal perspective, prospective lessees and lessors benefit greatly from proper legal counsel. Our attorneys are trained to spot these terms and can isolate and has them out so they either favor your or do not favor the opposite party too much. More importantly, an experienced attorney can anticipate potential issues that will need to be provided for in the lease. For instance, it may be necessary to work a dispute resolution structure into the leas so that you can avoid a lot of stress and wasted energy when disputes arise. 

This is especially true for commercial lease. The business tenant tries to get by with a minimum of legal assistance, bringing in a lawyer after the lease has been pretty well negotiated and the landlord has prepared a lease to be signed. At this point, many commitments have been made already – some perhaps unwisely. While a lawyer can help by trying to reopen the important issues, it is an inefficient way to proceed. Bringing in your lawyer before you wrestle with the Landlord over concessions and expenses gives you the benefits of professional expertise from the start, especially if you are new at this game. Considering a long-term lease, paying top dollar for the space, facing complicated issues, or up against a stubborn or sophisticated landlord, you should consider having your lawyer do more for you.

For each lease review representation, we will provide clients with a customized memorandum of major terms and concerns, negotiate for early termination terms or option of lease assignment, and assist the lease execution preparation, such as financial statement, business qualification documents, good-guy or personal guarantee review and the payment delivery. The legal service should include, not only the review of standard lease, but also ensure the clients understand the risk of lease default and the key terms which are normally not aware by out of town, or oversea clients.

Residential Real Estate Transactions

We represent residential transactions involve condominiums, cooperatives, single and multi-family houses throughout the Greater New York City area .  With offices located in prime areas such as midtown Manhattan and Queens, our attorneys is able to promptly handle deals in both New York and New Jersey.

New York is one of the states that has the most complex real estate laws and local regulations in the country” .  As such, a licensed attorney is a must for each party in a real estate transaction. Moreover, the licensed attorney may have to work with other professionals such as Loan Officer, Building Mangers, Pay-off Attorney, Title underwriter, etc. and be responsible for negotiating with the client’s best interest in mind. Last but not least, to also be mindful to keep each deal move forward ensuring a smooth closing. The due diligence document review takes time, especially working with luxury Manhattan buildings and the Board application itself may request attorney’s participation in an efficient and diligently method.  

 

Transaction Related IP Services

Yuanhe provides legal services and advices on IP related issues occurring in transactions of stock or assets and in the process of public listing.

• IP Audit;
• IP Due Diligence;
• IP Stability Assessment;
• IP Protective Measures Assessment;
• IP Clauses Review in Transactions;
• IP Operational Regulation to Prevent Potential Disputes;
• IP Financing

Intellectual Property Related Dispute Resolution

The firm has been providing long-term legal services to well-known companies and talented actors on solving disputes in relation to intellectual property. Our clients come from industries of technology, entertainment, media and sports. We specializes in dealing with complicated intellectual property related issues and has handled a number of high-profile cases in relation to patent, trademark, copyright, anti-competition, antitrust and trade secrets, etc.

With excellent expertise, reliable working manner and close team cooperation, in some cases the firm has helped the clients successful removing IP obstacles in the process of public listing, stopping unlawful disturbances and competitors' unfair competitions, and safeguarding client's due IP rights. We have made a few records for representing clients to obtain the highest damage awards in China in certain type of cases.

China Trademark Services

Our trademark practice group offers many years of legal experience in areas of consultation, prosecution, enforcement protection, and management of trademarks. The group has crafted unique legal solutions for clients and has earned their trust especially in the cases of token-use registration, enforcement, litigation and alternative dispute resolution matters.

• Advise on trademark identification, classification, registration and protection strategies in China;
• Conduct trademark search, tracking, and investigation;
• File applications for trademark registration and renewals, recording of transfer, licensing contracts and registration amendments;
• File oppositions, review of refusals, invalidation and cancellations;
• Obtain recognition and protection of well-known marks;
• Management of family marks;
• Provide legal services in trademark franchising and licensing;
• Advise and handle trademark issues in processes of mergers and acquisitions

China Patent Services

We provide our clients a full range of patent, utility model and design related services with a strong and experienced team of patent lawyers and patent attorneys, in the fields of telecommunications, electronics, computer science, semiconductors, mechanics, medical science, biology and materials science.

• Patent disputes, including:

• Patent search, monitoring and due diligence;
• Patent prosecution;
• Patent mining and mapping;
• Patent licensing and transactions;
• Patent portfolio management;
• Patent related opinions and counseling

EB-1A

This category is employment-based first preference immigration. To qualify for this category, the individual alien should have extraordinary ability in the sciences, arts, education, business, or athletics, and his/her achievements must have been publicly recognized and resulted in a period of sustained national or international acclaim.

Requirements for EB-1A

The general requirement is that the alien should have risen to the “top of his/her field of endeavor” (1) as demonstrated by national or international acclaim (2) which should be recognized through extensive documentation, and (3) the alien should continue the work in the same field and (4) would substantially benefit the U.S. prospectively.

According to related regulations, a one-time major achievement, such as a Nobel Prize, might satisfy this requirement, provided it is probative of the fact that the alien has reached the summit of his/her occupation. In the absence of such a major, international recognized award, however, the petitioner may not rely solely on the alien beneficiary’s past achievements to establish the alien’s eligibility for this classification. Additionally, the regulations also allow the petitioner to provide evidence that the alien beneficiary has the requisite sustained acclaim and recognition by submitting evidence of at least three of the following ten criteria:

1. Alien’s receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor.
2. Alien’s membership in associations that require outstanding achievements of their members.
3. Published material about the alien in professional or major trade publications or other major media, relating to the alien’s work in the field for which classification is sought.
4. Evidence of the alien’s participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specification for which classification is sought.
5. Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field.
6. Evidence of the alien’s authorship of scholarly articles in the field, in professional or major trade publications or other major media.
7. Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases.
8. Evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation.
9. Evidence that the alien has commanded a significantly high salary or other significantly high remuneration for services, in relation to others in the field.
10. Evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

TN

The visa category “Professionals Under the North American Free Trade Agreement” (also known as a TN Visa) is available only to citizens of Canada and Mexico, under the terms of the North American Free Trade Agreement (NAFTA).

Qualifications for a “TN” visa

Among the types of professionals who are eligible to seek admission as TN nonimmigrants are accountants, engineers, lawyers, pharmacists, scientists, and teachers. You may be eligible for TN nonimmigrant status, if:

•   You are a citizen of Canada or Mexico;

•   Your profession qualifies under the regulations;

•   The position in the United States requires a NAFTA professional;

•   You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment – see documentation required below); and

•   You have the qualifications to practice in the profession in question.

Canadian Citizens

If you are a Canadian citizen, then you are not required to apply for a TN visa at a U.S. consulate.

You may establish eligibility for TN classification at the time you seek admission to the United States by presenting required documentation to a U.S. Customs and Border Protection (CBP) officer at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station. You must provide the following documentation to the CBP officer:

•   Proof of Canadian citizenship;

•   Letter from your prospective employer detailing items such as the professional capacity in which you will work in the United States, the purpose of your employment, your length of stay, and your educational qualifications; and

•   Credentials evaluation (if applicable), together with any applicable fees.

Mexican Citizens

If you are a Mexican citizen, then you are required to obtain a visa to enter the United States as a TN nonimmigrant. You should apply for a TN visa directly at a U.S. embassy or consulate in Mexico.  See the U.S. Department of State webpage, “Mexican and Canadian NAFTA Professional Worker.”

Once you are approved for a TN visa, you may apply for admission at certain CBP-designated U.S. ports of entry or at a designated pre-clearance/pre-flight inspection station.  Please refer to CBP’s website for additional information and requirements for applying for admission to the United States.  If a CBP officer finds you eligible for admission, then you will be admitted as a TN nonimmigrant.

O-1

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.

The O nonimmigrant classification is commonly referred to as:

O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)

O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry

O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance.  For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1

O-3: individuals who are the spouse or children of O-1’s and O-2’s

General Eligibility Criteria

To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the United States to continue work in the area of extraordinary ability.

   •   O-1A: extraordinary ability in the sciences, education, business, or athletics

Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.

   •   O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry

Extraordinary ability in the field of arts means distinction.  Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

To qualify for an O-1 visa in the motion picture or television industry, the beneficiary must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognized as outstanding, notable or leading in the motion picture and/or television field.

Blanket L Certification

Blanket L Certification

L-1 visa is a non-immigrant visa which allows companies operating both in the US and abroad to transfer certain classes of employee from its foreign operations to the USA operations for up to seven years. The employee must have worked for a subsidiary, parent, affiliate or branch office of your US Company outside of the US for at least one year out of the last three years.

Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition.  Eligibility for blanket L certification may be established if:

• The petitioner and each of the qualifying organizations are engaged in commercial trade or services;

• The petitioner has an office in the United States which has been doing business for one year or more;

• The petitioner has three or more domestic and foreign branches, subsidiaries, and affiliates; and

• The petitioner along with the other qualifying organizations, collectively, meet one of the following criteria:

• Have obtained at least 10 L-1 approvals during the previous 12-month period;

• Have U.S. subsidiaries or affiliates with combined annual sales of at least $25 million; or

• Have a U.S. work force of at least 1,000 employees.

In order to qualify under the blanket petitioning process, the employee having specialized knowledge must also be a professional.  See 8 CFR 214.2(l)(1)(ii)(E).

In most cases, once the blanket petition has been approved, the employer need only complete a Form I-129S, Nonimmigrant Petition Based on Blanket L Petition, and send it to the employee along with a copy of the blanket petition Approval Notice and other required evidence, so that the employee may present it to a consular officer in connection with an application for an L-1 visa.

L-1B

L-1 visa is a non-immigrant visa which allows companies operating both in the US and abroad to transfer certain classes of employee from its foreign operations to the USA operations for up to seven years. The employee must have worked for a subsidiary, parent, affiliate or branch office of your US Company outside of the US for at least one year out of the last three years.

Companies operating in the US can apply to the relevant USCIS service center for an L-1 visa to transfer someone to the US from their overseas operations. Employees in this category will, initially, be granted an L-1 visa for up to three years.

L-1B: Intracompany Transferee Specialized Knowledge

The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company which does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one.  The employer must file Form I-129, Petition for a Nonimmigrant Worker with fee, on behalf of the employee.

General Qualifications of the Employer and Employee

To qualify for L-1 classification in this category, the employer must:

•   Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and

•   Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1.  While the business must be viable, there is no requirement that it be engaged in international trade.

   Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

To qualify, the named employee must also:

•   Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and

•   Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.

   Specialized knowledge means either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (See 8 CFR 214.2(l)(1)(ii)(D)).

L-1 Visa Reform Act of 2004

The L-1 Visa Reform Act of 2004 applies to all petitions filed on or after June 6, 2005, and is directed particularly to those filed on behalf of L-1B employees who will be stationed primarily at the worksite of an of an employer other than the petitioning employer or its affiliate, subsidiary, or parent.  In order for the employee to qualify for L-1B classification in this situation, the petitioning employer must show that:

•   The employee will not be principally controlled or supervised by such an unaffiliated employer; and

•   The work being provided by the employee is not considered to be labor for hire by such an unaffiliated employer.

See INA 214(c)(2)(F) and Chapter 32.3(c) of the USCIS Adjudicator’s Field Manual, available in the “Laws” section of the website.

New Offices

For foreign employers seeking to send an employee with specialized knowledge to the United States to be employed in a qualifying new office, the employer must show that:

•   The employer has secured sufficient physical premises to house the new office ; and

•   The employer has the financial ability to compensate the employee and begin doing business in the United States.

See 8 CFR 214.2(l)(3)(vi) for details.

Period of Stay

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.  All other qualified employees will be allowed a maximum initial stay of three years.  For all L-1B employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.

L-1A

L-1 visa is a non-immigrant visa which allows companies operating both in the US and abroad to transfer certain classes of employee from its foreign operations to the USA operations for up to seven years. The employee must have worked for a subsidiary, parent, affiliate or branch office of your US Company outside of the US for at least one year out of the last three years.

Companies operating in the US can apply to the relevant USCIS service center for an L-1 visa to transfer someone to the US from their overseas operations. Employees in this category will, initially, be granted an L-1 visa for up to three years.

L-1A: Intracompany Transferee Executive or Manager

The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.  The employer must file a Form I-129, Petition for a Nonimmigrant Worker, with fee, on behalf of the employee.

The following information describes some of the features and requirements of the L-1 nonimmigrant visa program.

General Qualifications of the Employer and Employee

To qualify for L-1 classification in this category, the employer must:

•   Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and

•   Currently be, or will be, doing businessas an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1.  While the business must be viable, there is no requirement that it be engaged in international trade.

       Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.

To qualify, the named employee must also:

•   Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and

•   Be seeking to enter the United States to provide service in an executive or managerial capacityfor a branch of the same employer or one of its qualifying organizations.

       Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.

       Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization.  It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.  See section 101(a)(44) of the Immigration and Nationality Act, as amended, and 8 CFR 214.2(l)(1)(ii) for complete definitions.

New Offices

For foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office, the employer must also show that:

•   The employer has secured sufficient physical premises to house the new office;

•   The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and

•   The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.

See 8 CFR 214.2(l)(3)(v) for details.

Period of Stay

Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.  All other qualified employees will be allowed a maximum initial stay of three years.  For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.

H-1B

U.S. businesses use the H-1B non-immigrant visa program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as in architecture, engineering, mathematics, science, and medicine.

Types of H-1B visas

The H-1B1 visa is specifically for citizens of Chile and Singapore with a job offer in a specialty occupation in the US. The Chile and Singapore Free Trade Agreements require the USCIS to exempt 6,800 H-1B visas from the H-1B visa cap to be reserved for eligible citizens of Chile and Singapore.

The H-1B2 visa is designated for aliens who wish to come to the U.S. temporarily to perform services of an exceptional nature relating to a cooperative research and development project administered by the United States’ Department of Defense.

The H-1B3 visa is issued to aliens who come temporarily to the U.S. to work as fashion models. Evidence presented in an H-1B3 fashion model petition must establish that the model is of national or international acclaim.

Valid Period

The beneficiary may be admitted for a period of up to three years. The time period may be extended, but generally cannot go beyond a total of six years, though some exceptions do apply. An H-1B visa may be applied for any duration up to three years.

Criteria to qualify as a Specialty Occupation

The job must meet one of the following criteria to qualify as a specialty occupation:

•   Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position

•   The degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree

•   The employer normally requires a degree or its equivalent for the position

•   The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

Qualification for Employee

The employee must meet one of the following criteria:

•   Have completed a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university;

•   Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation;

•   Hold an unrestricted State license, registration, or certification which authorizes him/her to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment;

•   Have education, training, or progressively responsible experience in the specialty that is equivalent to the completion of such a degree, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

EB-5

The Immigration Act of 1990 created the Immigration Investor Program (or EB-5) as the fifth preference category for employment-based immigration applications. This was the first time a category specifically facilitated the admission of investors as lawful permanent residents and currently remains the only such category to do so. EB-5 is available to those individuals who have invested, or are in the process of investing at least $1 million in a commercial enterprise employing at least 10 full-time U.S. workers. Individuals who invest in a targeted employment area only need to invest a minimum of $500,000.

 

“New commercial enterprise” Requirement

All EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise (sole proprietorship, partnership, holding company, joint venture, corporation, business trust or other entity, which may be publicly or privately owned):

•   Established after Nov. 29, 1990, or

•   Established on or before Nov. 29, 1990, that is:

•   Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or

•   Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

This definition includes a commercial enterprise consisting of a holding company and its wholly owned subsidiaries, provided that each such subsidiary is engaged in a for-profit activity formed for the ongoing conduct of a lawful business.

This definition does not include noncommercial activity such as owning and operating a personal residence.

 

Job Creation Requirements

•   Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.

•   Create or preserve either direct or indirect jobs:

•   Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital.

•   Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.

Investors may only be credited with preserving jobs in a troubled business.

 

Capital Investment Requirements

Capital means cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for the purposes of section 203(b)(5) of the Act.

Required minimum investments are:

•   General. The minimum qualifying investment in the United States is $1 million.

•   Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $500,000.

Investment capital cannot be borrowed.

EB-3

EB-3 is an employment-based, second preference visa. You may be eligible for this immigrant visa preference category if you are a skilled worker, professional, or other worker.

There are three types of EB-3 Visas.

EB-3A: Skilled Workers

“Skilled workers” are persons whose job requires a minimum of 2 years training or work experience, not of a temporary or seasonal nature.

•   You must be able to demonstrate at least 2 years of job experience or training.

•   You must be performing work for which qualified workers are not available in the United States.

Labor certification and a permanent, full-time job offer required.

EB-3B: Professionals

“Professionals” are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and are a member of the professions

•   You must be able to demonstrate that you possess a U.S. baccalaureate degree or foreign degree equivalent, and that a baccalaureate degree is the normal requirement for entry into the occupation.

•   You must be performing work for which qualified workers are not available in the United States.

Education and experience may not be substituted for a baccalaureate degree. Labor certification and a permanent, full-time job offer required.

EB-3C: Unskilled Workers (Other Workers)

The “other workers” subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature.

•   You must be capable, at the time the petition is filed on your behalf, of performing unskilled labor (requiring less than 2 years training or experience), that is not of a temporary or seasonal nature, for which qualified workers are not available in the United States.

Labor certification and a permanent, full-time job offer required.

EB-2

EB-2 is an employment-based, second preference visa. You may be eligible if you are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability. Below are the occupational categories and requirements:

There are three types of EB-2 Visas.

EB-2A: Members of the professions holding advanced degrees or their equivalent

A petition for a foreign professional holding an advanced degree may be filed when the job requires an advanced degree (beyond the baccalaureate) and the alien possesses such a degree or the equivalent. The petition must include documentation, such as an official academic record showing that the alien has a U.S. advanced degree or a foreign equivalent degree, or an official academic record showing that the alien has a U.S. baccalaureate degree or a foreign equivalent degree and letters from current or former employers showing that the alien has at least 5 years of progressive post-baccalaureate experience in the specialty.

EB-2B: Exceptional ability in the sciences, arts or business

This classification applies to those “who because of their exceptional ability in the sciences, arts, or business will substantially benefit the national economy, cultural, or educational interests or welfare of the United States.” In order to receive this classification, the individual must provide documentation of three of the following:

•   An official academic record showing the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;

•   Letters documenting at least ten years of full-time experience in the occupation being sought;

•   A license to practice the profession or certification for a particular profession or occupation;

•   Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability;

•   Membership in professional associations;

•   Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

If the above standards do not apply to the petitioner’s occupation, other comparable evidence of eligibility is also acceptable.

EB-2C: National Interest Waiver

The National Interest Waiver (NIW) is for aliens of exceptional ability in sciences, arts or business and advanced degreed professionals (M.A., M.S., M.E., M.D. or Ph.D.). Ph.D. students also qualify.

PERM Labor Certification

PERM stands for “Program Electronic Review Management”.  It is the system used for obtaining labor certification.  A PERM Labor Certification is an approval from the DOL for the U.S. employers to apply for green card for their prospective foreign employees based a position offered to the employees.  An approved PERM Labor Certification (PERM LC, or LC) issued by DOL allows an employer to hire a foreign worker to work permanently in the United States.  Obtaining the LC is the prerequisite for starting the immigration process with USCIS for EB-2 and EB-3 visa applicants.

The PERM LC aims at protecting the American labor market, and the U.S. labors including U.S. citizens and LPRs.  A PERM LC also confirms that there are “insufficient available, qualified, and willing U.S. workers to fill the position being offered at a prevailing wage.  In addition, a PERM LC also means that hiring a foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.  Thus, to obtain the PERM LC, employers are required to go through a period of recruitment procedure to demonstrate the shortage of U.S. workers before filing an immigration petition for their foreign employees.  On average, it takes around four to six months to obtain the LC.

In the PERM LC process, the U.S. employer is the applicant and the prospective employee is the beneficiary.  Once the PERM application was approved, the US employer may move to the second step and file an immigrant petition (Form I-140).  It should be noted that the approved PERM LC and/or the immigrant petition does not grant a prospective alien employee authorization to work in the United States.  As a result, the alien is not required to work for the applying employer while the PERM application is pending or after it is approved.  For the same reason, the employer who applied for LC can terminate their foreign worker’s both current and future employment at any time.  However, while applying for the LC the employer must prove that they had the intent to hire the beneficiary for the duration of the entire immigration process.  For the same reason, the employee has to work for the employer for a certain period of time after they were granted the immigration benefits.  A new law allows the employee to change employers after working 180 days from the date of filing the Adjustment of Status petition (Form I-485).

Generally EB-2 and EB-3 petitions all require filing and obtaining a PERM LC before employers can file the immigration petition with USCIS for their alien employees, except when the EB-2 petitioner obtained a National Interest Waiver.  There are alternative immigration options where a PERM LC is not required:

1. All family-based immigrant petitions;
2. Employment-based first preference (EB-1) petitions for aliens of extraordinary ability, outstanding researchers and professors, and intra-company transferees for multinational executives;
3. Employment-based fourth preference petition reserved for special immigrants (EB-4);
4. Employment-based fifth preference petitions for investors (EB-5).

National Interest Waiver

The National Interest Waiver (NIW) is for aliens of exceptional ability in sciences, arts or business and advanced degreed professionals (M.A., M.S., M.E., M.D. or Ph.D.). Ph.D. students also qualify. An alien may apply for permanent residence status (Green Card) and seek a waiver of the offer of employment by establishing that his or her admission to permanent residence would be in the national interest.

The national interest waiver is a good option for those who do not wish to wait several years for labor certification or those who do not wish to be tied to a specific employer during labor certification. The national interest waiver applicant sponsors him or herself and is not required to have a job. NIW applicants may make additional green card applications while their NIW petition is pending. Furthermore, if the NIW applicant is employed, the employer will not have knowledge of a pending NIW application.

The National Interest Waiver also applies to physicians. Physicians who agree to work full time in a designated health professional shortage area or in VA hospital and where a federal agency or State department of public health has determined that the physicians work is in the public interest for an aggregate of five years (not including time in J1 visa status) can obtain an NIW green card.

Criteria to qualify

The National Interest Waiver or NIW is part of the second employment-based category (EB-2) for aliens of exceptional ability in sciences, arts or business and advanced degreed professionals. In order to be considered an alien of exceptional ability, the USCIS regulations require that at least three of the following types of evidence be established:

1. An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability;
2. Evidence in the form of letters from current or former employers showing that the alien has at least ten years of full-time experience in the occupation for which he or she is sought;
3. A license to practice the profession or certification for a particular profession or occupation;
4. Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;
5. Evidence of membership in professional associations;
6. Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business associations.

Someone who meets three of these requirements or has an advanced degree and has a job offer from a U.S. employer can process a labor certification under the EB-2 category. However, someone who qualifies for the National Interest Waiver is deemed to be of such value to the United States that he/she is neither required to process a labor certification nor have a job offer.

EB-1C

This category is employment-based first preference immigration that that will permit a foreign worker to live and work in the United States on a permanent basis. This category applies to aliens who are multinational manager or executive.

Requirements for EB-1C

Aliens must have been employed outside the United States in the 3 years preceding the petition for at least 1 year by a firm or corporation and you must be seeking to enter the United States to continue service to that firm or organization. Your employment must have been outside the United States in a managerial or executive capacity and with the same employer, an affiliate, or a subsidiary of the employer.

The petitioning employer must be a U.S. employer. The employer must have been doing business for at least 1 year, as an affiliate, a subsidiary, or as the same corporation or other legal entity that employed you abroad.

A petition for a multinational executive or manager must be accompanied by a statement from an authorized official of the petitioning United States employer which demonstrates that:

1. There must be a U.S. company or organization (U.S. employer) AND a company or organization (foreign employer) located outside of the U.S. These two companies must be active and conduct regular and systematic operations.
2. The prospective employer has been doing business for at least one year.
3. The prospective employer and the foreign employer must be related entities.
4. In the three years immediately preceding the filing of the petition the foreign beneficiary has been employed outside the United States in the foreign company for at least one year in a managerial or executive capacity;
5. The prospective employer in the United States is the same employer or a subsidiary or affiliate of the firm or corporation or other legal entity by which the foreign beneficiary was employed overseas; and
6. The foreign beneficiary must work for the U.S. employer as an executive or manager now or after the green card is approved.

EB-1B

This category is employment-based first preference immigration. This category applies to aliens who are internationally recognized for being outstanding in a particular academic field.

Requirements for EB-1B

These professors and researchers should have (1) at least three years of relevant research or teaching experience, (2) a job offer for a permanent research position or a tenured or tenure-track teaching position, and (3) intend to teach or carry out research in the particular field in the U.S.

In order to qualify for this category, the petitioner should submit evidence establishing that the professor or researcher is recognized as outstanding in the academic field.  Such evidence should include documentation of at least two of the followings:

1. Documentation of the alien’s receipt of major prizes or awards for outstanding achievement in the academic field;
2. Documentation of the alien’s membership in associations that require their members to demonstrate outstanding achievements;
3. Published material in professional publications written by others about the alien’s work in the academic field;
4. Evidence of the alien’s participation, either on a panel or individually, as a judge of the work of others in the same or allied academic field;
5. Evidence of the alien’s original scientific or scholarly research contributions in the academic field;
6. Evidence of the alien’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field.

As one of the basic requirements, the alien must receive a permanent job offer from the sponsored employer. According to current regulations, “permanent” is defined as “either tenured, tenure-track, or for an indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment unless there is good cause for termination.” For individuals who are holding research positions that are based on grant money received yearly, USCIS has ruled that if the employer petitioning for the alien shows the intention to continue to get funding and gives a reasonable expectation that funding will continue, then the employment may be considered “permanent”.

Generally, the job offer is given by a university or other similar academic or scientific institution, but it can also be offered by a private employer. If the offer is from a private company, the employer must have at least three full-time researchers along with accompanying documentation supporting their accomplishments within the field.

Research or teaching experience obtained while in pursuit of an advanced degree, such as a Ph.D., may be counted toward the three year requirement, but only if the alien has acquired the degree, and if the teaching duties were such that he/she had full responsibility for the class taught or if the research conducted toward the degree has been recognized within the academic field as outstanding. The alien must document his/her work history with letters from current and/or former employers describing work duties and years of employment.