Trader, Investor, and Permanent Employment Visas

The Florida Law Firm can assist foreign nationals to obtain E-1 Treaty Trader visas and E-2 Treaty Investor visas.

E-1-Treaty TraderĀ 

The E-1 Treaty Trader visa is designated to allow individuals from foreign countries that are engaged in international trade between the United States and their country of origin to carry on business. Trade refers to commercial dealings in goods, trade, services, and technology.
The following must be met to qualify for an E-1 Treaty Trader visa:

  • The firm in the US must have the nationality of a treaty country.
  • The applicant must be a national of the treaty country.
  • The international trade must be “substantial”; there must be a sizable and continuing volume of trade.
  • The trade must be principally between the US and the treaty country, which is defined to mean that more than 50% of the firm’s international trade involved must be between the US and the country of the applicant’s nationality. Trade means the international exchange of goods, money, services, or technology. Title of items must pass from one party to another.
  • The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the operation of the firm.
  • E-2 -Investor Trader Visa: The E-2 Treaty Investor visa is designated to allow individuals from foreign countries to come to the United States to carry on substantially and to develop and direct the operations of an enterprise in which the national has invested, or is actively in the process of investing, a substantial amount of capital.
  • The following must be met to qualify for an E-2 Treaty Investor visa:
  • The investor must be a national of a treaty country.
  • The investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost enterprise must be higher than the percentage of investment in a high-cost enterprise.
  • The investment must be a real operating enterprise. Speculative or idle investment does not qualify.
  • The investment must not be marginal. It must generate significantly more income than needed to provide a living to the investor and family, or it must have a significant economic impact in the United States.
  • The investor must have control of the funds, and the investment must be at risk in the commercial sense. For the purpose of measuring the investment, loans secured with the assets of the investment enterprise are not counted.
  • The investor must be coming to the US to develop and direct the enterprise. If applicants are not the principal investors, they must be employed as a supervisor, executive, or as the possessor of highly specialized skills.

PERMANENT RESIDENCE THROUGH EMPLOYMENT

The core elements of employment-based immigration are: (1) a US employer willing to sponsor you for a permanent, full time job; (2) you possess the required skills and education to perform the duties of the job; (3) the employer has displayed an unavailability of US workers through the required recruitment process; and (3) the employer has the ability to pay your wage. Most types of these filings require labor certification (see below). Some filings, such as National Interest Waiver filings and Extraordinary Ability Filings do not require labor certification.

Traditional Labor Certification

The first step in obtaining permanent resident status through employment is to show the U.S. Department of Labor that there are no qualified American workers available to take the specific job that has been offered. Applicants apply for green cards under preference categories and are subject to country-by-country quotas. The date on which the employer files the labor certification papers is called the priority date. The priority date marks the legally recognized moment when the waiting period for a green card starts to elapse. The employer files the forms, and the Department of Labor office sends back instructions on how to advertise for the job. If no qualified applicants arise, the Labor certification will be approved and the second step can begin. In some states, the Labor Certification process can take several years.

Reduction in Recruitment (RIR)

Reduction in Recruitment (RIR) involves showing that the offered job has been unsuccessfully advertised for in the past 6 months. If this is the case, the DOL will reduce the recruitment stage of the labor certification process. This can save several months to 2 years on the labor certification process. If the employer can show a pattern of recruitment within the previous 6 months (including at least one Sunday large-circulation daily newspaper advertisement), then the DOL will likely grant the RIR request.

PERM

On December 27, 2004, the US Department of Labor (DOL) published new rules replacing the current system for processing labor certification applications with a new program, entitled “PERM” (Program Electronic Review Management). The rapid electronic program started on March 28, 2005. Under the PERM rules, labor certification applications must be submitted online using a new form ETA-9089. PERM requires sworn statements by employers, along with an obligation to maintain detailed records regarding recruitment efforts. Said recruitment records are subject to DOL audit, although it is unlikely that most cases will be audited. DOL anticipates adjudication of most cases filed under PERM within 45 to 60 days, unless there is a DOL audit.

As with the current Reduction in Recruitment (RIR) labor certification process, recruitment under PERM must occur prior to filing. Under PERM, at least two Sunday newspaper advertisements are required, and for professional jobs, additional forms of recruitment such as Internet postings also are required. As with RIR filings, the newspaper ads must include the employer’s name, but not the employer’s address or the offered salary. In a major departure from the previous procedures, under PERM the employer must list the job for potential referrals with the State Workforce Administration prior to filing. Recruitment must be conducted at least 30 days but no more than 180 days prior to filing. Employers are required to offer 100% of the prevailing wage when testing the labor market for U.S. workers, rather than 95% as previously required. A more accurate four-level prevailing wage system will replace the current two-level system.
The processing benefits offered by PERM, such as dramatically faster adjudication (2 months vs. 2-4 years) and online filing, are obviously very attractive to employers and foreign nationals. The basic requirements for PERM labor certification applications are:

  • The employer has complied with the procedural requirements of the regulations for labor certification
  • There are insufficient U.S. workers who are qualified, willing, and available for the offered position
  • The employment of the foreign national will not have an adverse effect on the wages and working conditions of similarly employed U.S. workers
  • Cases filed under PERM may be subjected to a DOL audit if the application fits a DOL audit profile, or if an employer is randomly selected for an audit. Employers are required to maintain documentation of their recruitment efforts for 5 years. This includes evidence of advertising and other recruitment efforts, as well as a report summarizing responses to recruitment, so that the unavailability of qualified U.S. workers for the position is well documented.

Cases not requiring Labor Certification

For cases that do not require labor certification, please see information on National Interest Waiver, or the Extraordinary Ability below.

Preference Categories
The following are the preference categories for employment-based immigration:

    • First Preference: Persons of extraordinary ability, Outstanding Professors or Researchers, or Multinational Executives or Managers. These categories require no labor certification.
    • Second Preference: Members of the professions holding an advanced degree or exceptional ability (requires labor certification); if their work falls under the “national interest” requirement, then the labor certification and job offer requirement can be waived.
    • Third Preference: Skilled workers, i.e. those capable of performing work requiring at least two years experience or training for which qualified workers are not available in the US; Professionals, i.e. those with baccalaureate degrees, but not advanced degrees; and Other workers, i.e. unskilled labor, not of a temporary or seasonal nature

Your waiting time for your immigrant visa will depend on which preference category your case falls under, as well as what country you are from. This information can be found at the State Department Visa Bulletin.