Global Business and Migration Guide: What are the Options Available? Part 2: United States of America

The USA has recently become more famous for anti-immigrant sentiment than opportunities to immigrate. However, it is a land of Immigrants, and therefore, with the breadth of Economic activity taking place within its shores, the United States are still very much “open for business.”

In this article, we explore how international businessmen and aspiring migrants can approach economic opportunities in the United States in the current climate. When it comes to permanent residency, options are generally more limited. For temporary workers, procedures have also become more restrictive. However, for businesses and investors, there may be some potential for investment opportunities, particularly in light of the recent policies implemented by the current administration in terms of tax and immigration policy.

How can I get a Green Card?

The most straightforward way is to marry an American citizen. This also requires an extensive screening process by United States Customs and Immigration Services (USCIS) and the National Visa Center/State Department, which involves documentary evidence and an interview. Evidence of joint lease agreements, bank accounts, and utility bills may need to be presented, along with affidavits from family and friends to authenticate the relationship. The interview process will also clarify the validity and the truth of the marriage for the consular officials reviewing the matter. The consular and immigration officials will try to establish whether an actual and bona fide marriage exists, before granting the non-US citizen spouse a visa. This process can take 1–2 years depending on the nationality of the spouse.

After the green card is issued, the spouse will obtain their “Green Card” or permanent residency, after arriving in the US. They will then have to renew their PR card after two years, while demonstrating that they are still married. If they have divorced within two years, then they will have to provide evidence of genuine reasons for the divorce.

For those who do not have a relationship with potential US citizen spouse, the route to the “Green Card” (or permanent residency), is by no means clear. Employment based petitions are possible, however, most (except for certain Intra-Company transferees with special skills), require a labor certification. The certification is to establish that there are no US citizens or permanent residents capable of filling the role of the “alien” (or foreign national), and that the skills brought to the organization by the alien are needed. In addition, filing fees can be expensive, and the process can be lengthy. Therefore, the first hurdle for potential applicants is finding an employer willing to invest in the process. All fees for the process must also be borne by the employer.

Some self sponsorship programs are available for individuals with exceptional abilities, and potentially, those who complete higher degrees, such as at the PHD level, in the US. In addition, the Green Card “lottery” has always been a possibility for some. The reality is, however, that only a minority of candidates applying, fit the requirements for these programs.

Temporary Work

The most common visa available for temporary workers are in the “H-1” category, such as the H-1B visa. These are generally for a temporary period, such as a number of years, though they can be renewed. The employer needs to apply to USCIS for the approval of a petition, and this visa requires a bachelor’s degree as the minimum level of education for the applicant. A labor certification is also required in this category, and the worker’s experience must be specialized and unique to the position offered. Under the current administration, there has been a clamp down on these kinds of visas, however, there are still individuals who successfully apply for and obtain work in these categories.

There are also other categories of temporary visas, including those available under the North American Free Trade Agreement (NAFTA). However, their issuance is case specific, depending on the nationality and circumstances of the applicant.

Immigration by Investment

As mentioned earlier, America remains open for Business (despite the recent government shutdown). As such, there are a whole host of opportunities for investment available for foreign nationals.

First of all, individuals who invest in business, or carry on trade with the United States (or the Commonwealth of the Northern Marinara Islands), are eligible for the CW-1, E-1 and E-2 categories. The E-1 allows individuals who carry on trade between a country which has entered into a treaty with the United States to obtain US visas when they conduct substantial trade, and more than 50% of their trade into the US is sourced from their treaty/home country. This latter requirement is known as carrying on principal trade. These requirements are quite open, and allow for many potential traders and investors to apply, if they are indeed conducting, or contemplating trading goods and services in the United States. The visa can be granted for 2 years, and be extended an unlimited amount of times. However, there will usually be conditions imposed on the visa holder, such as the employment being restricted to the “trading organization” in the United States.

An E-1 Treaty Investor will be an individual from a treaty company who invests in or purchases a business in the United States. He or she must own 50% or more of the shares in such an entity, and the investment must be such that it will lead to a legitimate and functioning entity, which makes more than “marginal returns,” required to sustain the investor’s personal living expenses. These requirements are also vague, which leaves investment opportunities open to a potentially large grouping of individuals and businessmen and women. However, convincing legal documentation is likely to be required.

It should be noted that the list of treaty countries includes approximately 135 nations, such as Pakistan, the Philippines, Bangladesh, Bahrain, and others. If all else fails, an individual can still apply for a Business Visitor visa, and open a company in the United States, to carry on legitimate business while present in the US. The creation of the business will also present opportunities for future self sponsorship in temporary or permanent worker categories (e.g. for an H-1B or Green Card).

For those who are looking to become permanent residents directly, there is also the “EB-5” category. This requires the creation of 10 permanent jobs for US citizens or permanent residents, or an investment of USD $500,000 to $1 million in a business in the United States. It’s ultimate outcome is the issuance of a “Green Card,” i.e. permanent residency.

Conclusion

For all the talk of the anti-immigrant policies in place in the United States, one thing remains clear-money talks when it comes to US immigration policy. This is why the opportunities for immigration via investment remain the most broad and accessible for potential business people and migrants at the current time.

(For anyone interested in pursuing migration or business opportunities in the United States, get in touch with our US licensed Attorneys today, email info@borderlesscounsel.com for more details. Next week we will discuss Australia).