Category Made Easy

L-1 visas are available only to employees of companies outside the U. S. that have related u. s. branches, subsidiaries, affili­ates, or joint venture partners. There is also a special category for international accounting firms. For visa purposes, these terms have specific definitions.

a. Branches

Branches are simply different operat­ing locations of the same company. The clearest example of this is a single in­ternational corporation that has branch offices in many countries.

b. Subsidiaries

In a subsidiary relationship, one com­pany must own a controlling percentage of the other company, that is, 50% or more. For L-1 purposes, when two com­panies are in the same corporate or lim­ited form, and at least 50% of the stock of a company in the U. S. is owned by a non-U. S. company, or vice versa, this is a classic subsidiary relationship.

c. affiliates

Affiliate business relationships are more difficult to demonstrate than those of

branches or subsidiaries because there is no direct ownership between the two companies. Instead, they share the fact that both are controlled by a common third entity, either a company, group of companies, individual, or group of people.

There are two methods of ownership that will support an L-1 visa based on an affiliate relationship. The first is for one common person or business entity to own at least 50% of the non-u. s. com­pany and 50% of the u. s. company. If no single entity owns at least 50% of both companies, the second possibility is for each owner of the non-u. s. company to also own the u. s. company, and in the same percentages. For example, if five different people each own 20% of the stock of the non-u. s. company, then the same five people must each own 20% of the u. s. company for an affiliate relation­ship to exist.

d. Joint venture Partners

A joint venture exists when there is no common ownership between the two companies, but they have jointly under­taken a common business operation or project. To qualify for L-1 purposes, each company must have veto power over decisions, take an equal share of the profits, and bear the losses on an equal basis.

In a situation where both the u. s. and non-u. s. companies are in the corporate or limited form and the majority of the stock of both is publicly held, unless they are simply branches of the same company that wish to transfer employees between them, the joint venture relation­ship is the only one that is practical for L-1 qualifying purposes. The ownership of a publicly held company is too vast and diverse to prove any of the other types of qualifying business relationships.

e. International Accounting Firms

L-1 visas are available to employees and partners of international accounting firms. In the case of big accounting firms, the interests between one country and another are not usually close enough to qualify as affiliates under normal L-1 visa rules. Nevertheless, the law considers the managers of such companies quali­fied to support L-1 visa petitions for their employees. The firm must be part of an international accounting organization with an internationally recognized name. ultimately, this option applies to a only limited number of very large and promi­nent firms.

If, prior to graduation, you accept practi­cal training employment that is a required part of your studies, as is frequently done by students on fellowships, only 50% of your employment time will be deducted from the allotted 12-month total. Practi­cal training in this special situation is called curricular practical training, and has the effect of allowing you to work for a total of 24 months prior to graduation instead of only 12. If you work for six months in curricular practical training, you are required to deduct only three months from your allotment, mean­ing you may still accept nine months of additional practical training employment prior to graduation and the full 12 months after graduation. If, however, you work more than 20 hours per week, you lose the benefit of this special rule. Under these circumstances, once again you must deduct the whole amount of time you worked, meaning you are limited to a maximum of 12 months of practical training prior to graduation.

b. optional Practical Training Work Permit application Procedures (m-1 Students)

As an M-1 student, you can apply for permission to take practical training only after you have completed your entire program of studies. Applications for work permission must be filed not more than 60 days before your graduation. m-1 students can be granted permission to work in a practical training position only for a period of one month for each four months of study, with a total overall maximum of six months.

While the time periods for getting practical training work permission for F-1 students differ from those for M-1 stu­dents, the procedures, forms, and docu­ments are almost exactly the same. see subsection a, immediately above. The one difference is that on Question 16,

M-1 students will answer “(c)(6).”

You will be called in for a personal interview, which will be held at a uSCIS office near you. USCIS will send you and your accompanying relatives an appoint­ment notice, usually about two weeks in advance of the interview. If you have an attorney, he or she may come with you to the interview. (Even if you don’t have an attorney, you could consult with or hire one at this point.)

Be prepared to explain at your inter­view why you still fear returning to the country from which you fled. If you no longer fear returning there, you do not qualify for your asylee or refugee sta­tus, and therefore do not qualify for the green card. If any dramatic changes have occurred to supposedly improve condi­tions in your country—such as a regime change or peace treaty—you’ll have some extra explaining to do. If possible, supply supporting documents under such circumstances. If you don’t already have an attorney, this would be a good time to hire one.

The checklist below will help you prepare for your interview. Prepare all these items for yourself and your family members.

Getting an H-1B visa is a two – to four – step process:

• First, your U. S. employer files a Labor Condition Attestation (LCA) with the u. s. Department of Labor

(dol)

• second, your u. s. employer files what’s called a visa petition on US – CIs Form I-129. If you’re already in the u. s. in lawful status, this peti­tion can simultaneously ask that your status be changed to H-1B worker, in which case the process will successfully end here.

• Third, if you’re outside the U. S., then after the visa petition is ap­proved, you submit your own application for an H-1B visa to a U. S. consulate (unless you’re from Canada or a visa waiver country, in which case you can skip this step) and

• Finally, you use either your visa or (if you’re from Canada or a visa waiver country) the notice of your approved visa petition to enter the U. S. and claim your H-1B status.

Nothing stops you from helping with the employer’s tasks during this application process. For example, you can fill out forms intended to be completed by your employer and simply ask the employer to check them over and sign them. The less your U. S. employer is inconvenienced, the more it will be willing to act as sponsor for your visa.

E-1 visas are meant to be temporary. At the time of your application, you must intend to depart the U. S. when your business there is completed. As previ­ously mentioned, you are not required to maintain a foreign residence abroad.

The u. s. government knows it is dif­ficult to read minds. Expect to be asked for evidence showing that when you go to the U. S. on an E-1 visa, you eventu­ally plan to leave. In many nonimmigrant categories, you are asked to show proof that you will keep a house or apart­ment outside the U. S., indicating that you eventually intend to go back to your home country. You do not need to keep a home outside the U. S. to qualify for an E-1 visa—but it would help. You will certainly be asked to show that you have some family members, possessions, or property elsewhere in the world as an incentive for your eventual departure from the United States.

These three measures have been partly derived from our own experi­ence and not the immigration laws. It is

possible for an E-1 visa to be approved with a smaller amount of trade than we have described in our three tests. With E-1 visas, a great deal is left to the judgment of the USCIS or consular officer evaluating the application.

Possibilities for a Green Card
From E-1 Status

If you have an E-1 visa, you can file to get a green card, but being in the U. S. on an E-1 visa gives you no advantage in doing so, and in fact may prove to be a drawback. That is because E-1 visas, like all nonimmigrant visas, are intended only for people who plan on leaving the U. S. once their jobs or other activities there are completed.

If you apply for a green card, you are in effect making a statement that you never intend to leave the United States. Therefore, the U. S. govern­ment may allow you to keep E-1 status while pursuing a green card, but only if you can convince it that you did not intend to get a green card when you originally applied for the E-1 visa, and that you will leave the U. S. if you are unable to secure a green card before your E-1 visa expires. Proving these things can be difficult. If you do not succeed, your E-1 visa may be taken away. Should this happen, it may af­fect your green card application, since being out of status or working without authorization may be a bar to getting a green card in the U. S., or may create a waiting period of three or ten years if you depart the U. S. and apply for a visa. (See Chapter 3.)