Looking to live and work in the U.S. – This is what you need to know

Moving to the U.S. is a desirable option for many people in search of better opportunities and a new beginning, but the legal process might seem daunting.

Many factors, such as the purpose of intended travel, will determine what type of visa is required under U.S. immigration law. You also need to establish and meet all the requirements in order to receive the category of visa for which you are applying.

Award-winning attorney Karen-Lee Pollak of Pollak PLLC will be in South Africa providing private immigration consultations and group seminars specifically tailored to South Africans through 6-22 April in Johannesburg and Cape Town.

Here are some of the more common visa options issued to South Africans for immigration through business, employment, family, or investment.

L-1 visa: Business (intracompany work visa)

The L-1 visa is granted to people who have worked outside of the U.S. as a manager, executive, or in a position involving specialised knowledge, and are now seeking to go to the U.S. to work in a related U.S. company in same capacity.

Many international companies use an L-1 visa to transfer their executives, managers, or workers who are in a position involving specialised knowledge to the U.S.

A spouse and minor children of an L-1 beneficiary may be granted L-2 visa status, and an L-2 visa beneficiary may become a student in the U.S. and may also work in the United States.

The United States Customs and Immigration Service is increasingly scrutinising L-1A visa applications, and it is important that, in the manager context, the manager is managing a manager who then supervises several employees. A first-line supervisor is not sufficient.

Ms. Pollak cautions that “L-1A applications are increasingly being denied where the company does not have at least 8-10 employees in South Africa and/or at the time of renewal in the United States where a new branch is created”.

You can learn more about this visa on Pollak’s website and video at www.pollakimmigration.com/L1-visa.

H-1B visa: Employment (speciality occupation)

The H-1B visa is for foreign workers who will hold specialty occupations that require the attainment of a bachelor’s degree or higher in a specific specialty as a minimum for entry into the occupation in the United States.

Specialised knowledge, i.e. 12 years’ work experience, may be acceptable instead of a degree.

USCIS does not recognise a 3-year bachelor’s degree; however, Pollak PLLC can have your degree and work experience evaluated to be equivalent to a U.S. degree. USCIS does recognise a South African master’s degree.

There are three requirements for obtaining the H1-B visa:

• First, the employee must have a job offer from a U.S. entity.
• Second, the employer must demonstrate a need for someone in a speciality occupation that typically requires a degree.
• Third, the foreign national must have the required degree, or its equivalent, in a subject closely related to the position.

You can learn more about this visa on Pollak’s website and video at www.pollakimmigration.com/H1b-visa.

E2-Temporary Investment visa and E-1 Treaty Trader visa

If you have a passport other than a South African passport, you may qualify for the above visa.  Unfortunately, it is not available to South Africans who only possess a South African passport.

The E visas provide reciprocal benefits to nationals of the U.S. and foreign countries who invest or conduct trade between two countries. Foreign nationals can get a visa by conducting trade with the U.S. (E-1 visa) or by overseeing investment in the U.S. (E-2 visa).

The E visa category can be used by various types of companies, whether owned by individuals or large multinational corporations. The E visa can be used by the company’s principals or by its employees.

• A treaty must exist between the United States and the foreign country. For example, United Kingdom, Portugal, Germany, Italy, Switzerland, Taiwan, Pakistan, Iran, Japan, and Australia are some of the countries that have treaties with the United States.
• Majority ownership or control of the investing or trading company must be held by nationals of the foreign country.
• Every employee or principal of the company seeking E visa status must be a citizen of the foreign country where the company is based.

E-2 visas are for owners and investors in businesses in the United States. The E-2 is a non-immigrant visa that may be granted for substantial investments in the U.S. An investment must meet several criteria in order to qualify for an E-2 visa. These criteria include:

• Showing that “substantial” investment or funds are available and committed to the investment.
• The investment must be in an active business as opposed to passive investment such as purchasing a home.
• At least 50% of the business must be owned by an alien from a country which has a treaty with the United States.
• The investment must create enough profit to provide a living for more than just the alien and their family.

There is no minimum amount of investment necessary to obtain an E-2 visa, and whether an amount will be considered “substantial” depends on the type of business involved, the number of jobs created the alien’s personal assets, etc. In most cases, the investment must be at least $100,000USD.

Employees of E-2 companies may be granted E-2 visas if they are or will be engaged in duties that are executive, managerial, or supervisory in nature.

If the person is employed in a minor capacity, the employee may be granted E-2 visa if they have special qualifications that make the services to be rendered essential to the enterprise.

The spouse and children (unmarried and under 21) of E-1 or E-2 visa holders are entitled to the same E-1 or E-2 classification as the principal.

You can learn more about these visas on Pollak’s website and video at www.pollakimmigration.com/E1-visa and www.pollakimmigration.com/e2-visa.

EB-5 visa: Investment (Investment Green Card)

The EB-5 visa or Investment Green Card is based on a qualifying U.S. investment.

To qualify, a substantial financial commitment to create additional employment in the U.S. is required and requires extensive documents.

It does not require you to manage the day-to-day affairs of a business, you may invest in an existing or a new business, more than one person may invest, and you may be a minority owner.

A great advantage of this visa is that you can also live anywhere in the United States, regardless of where the investment is made.

To qualify for an EB-5 visa, you may choose to invest in one of three ways:

• Invest $1,000,000 and hire 10 employees anywhere in the USA.
• Invest $500,000 and hire 10 employees in an area where the unemployment rate exceeds the national average by 150% or the rural population is less than 20,000.
• Invest $500,000 in a Regional Centre – the money is returned to the investor after 5 years with nominal interest. Like any investment, when investing in a Regional Centre project return of funds is not guaranteed.

The American Immigration Lawyers Association anticipates that the above amounts will be increased in 2018, but anybody who applies before changes in the law become effective will not have to pay any additional amounts.

You can learn more about this visa on Pollak’s website and video at www.pollakimmigration.com/Eb5-visa.

EB-3 visa: Green Card through employment

If you have an employer willing to offer you a position in the United States, that Employer can sponsor you for permanent residency (Green Card).

Aliens with at least two years of experience as skilled workers, professionals with a bachelor’s degree or higher and others with less than two years’ experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States.

Once the application is approved and a visa becomes available to the beneficiary, an adjustment of status application is filed with the USCIS together with several additional forms including a medical report, and a work authorization request.

If the employee is already in the United States or if outside the United States, applications are filed with the National Visa Center and the employee is scheduled for an interview at the U.S. Consulate in South Africa.

You can learn more about this visa on Pollak’s website and video at www.pollakimmigration.com/Eb3-visa.

Contact Pollak PLLC for expert advice

Karen-Lee Pollak, the managing attorney at Pollak PLLC who is originally from South Africa, understands from first-hand personal and business experience the intricacies of uprooting your family to live and work in the United States.

She has won numerous awards and accolades including Chambers and Partners Global Guide to the World’s Leading Lawyers (USA) 2017, D Magazine Best Lawyers in Texas, and Texas Rising Star by Texas Monthly.  She has also been featured as one of Newsweek’s Leaders in Immigration Law Showcase and named by Corporate Intl Magazine Legal Award as ‘Immigration Law Firm of the Year in Texas’.

The law firm provides full-service professional counsel and representation to large corporations, small businesses, investors and families, which is built on long-term, valued relationships. And with knowledge of the processes and procedures to work with various government agencies, Pollak PLLC attorneys ensure the best possible outcome for immigration.

To schedule a phone consultation or to book a private consultation or attend one of the seminars in April in Johannesburg or Cape Town, please email [email protected].

For more information on Pollak PLLC, visit the Pollak website.