When Immigration Becomes a Beauty Contest

The last thing one can associate immigration matters with, would be a beauty contest. Yet, it might just be appropriate from a certain perspective. It seems that every day the Trump Administration is poised to bring increasing restrictions and tests for more and more aspiring immigrants. The present article is an attempt at deconstructing and, hopefully, guiding you through the meanders one of the latest obstacles.

On April 18, 2017, President Trump signed the Buy American and Hire American Executive Order, which seeks to create higher wages and employment rates for U.S. workers and to protect their economic interests by rigorously enforcing and administering immigration laws. It also directs DHS, in coordination with other agencies, to advance its stated policies to “help ensure H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.”

This Executive Order is having a trickle-down effect on all areas of immigration law.  Limiting legal immigration to the best and the brightest is the overall tone of this Order. The “Beauty Contest” for immigrating to the U.S. involves proving the legitimate source of your funds, education, experience, skills, preparation and training for the projected business plan and a reasonable business plan which makes sense and will likely generate jobs to U.S. workers in the US – that is – hire American workers.  That is the objective.

Who – Who can qualify for a treaty investor or treaty trader visa? Certain employees of such a person or of a qualifying organization may also be eligible for this classification.  See U.S. Department of State’s Treaty Countries for a current list of countries with which the United States maintains a treaty of commerce and navigation.

What – What is the effect of this Order on long standing immigration and federal regulations providing for clear cut standards toward diversity of the work force?  For example, should an investor in the U.S. be allowed to transfer here to develop and direct the business following a substantial investment in that business?  The answer still appears to be “yes”, as the investor and treaty trader visas such as E-2 and E-1 and even EB-5 immigrant entrepreneur “million dollar investor visas” have remained virtually unscathed and still in effect thus far.  

How – To qualify for E-2 Treaty Investor nonimmigrant classification –  you must be national of a treaty country (a country with which the United States maintains a treaty of commerce and navigation) to be admitted to the United States when investing a substantial amount of capital in a U.S. business.  

How – To qualify for E-1 Treaty Trader classification, the general requirements for a treaty trader are: You are a national of a country with which the United States maintains a treaty of commerce and navigation; you carry on substantial trade; and you carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification.

How – The Immigrant Investor Program, also known as “EB-5,” was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. You invest the minimum amount of capital required for the location where the commercial enterprise will be principally doing business or creating jobs ($1 million generally, and $500,000 for rural areas and areas of high unemployment).

When  An E-1 or E-2 visa can be processed in a matter of weeks or months.  The EB-5 immigrant visa status will take more than a year to process.  The best practice is to file first for an E-1 or E-2 and then apply for the EB-5 depending on your timing.

Why – Investors come to the US for many reasons, including political and individual freedom, opportunity, excellent educational systems, natural resources and overall quality of life.  Having lived, worked and studied abroad, it is this author’s opinion that we still have the best overall options in the world for living, working and studying.

On the other hand, non-treaty companies and individuals must rely on professional visas such as H-1B visas which are subject to annual numerical limitations of 65,000 or 20,000 depending on your educational level.  Inter-company transfer visas (L-1A) also appear to be facing scrutiny and losing favor.  Both are being targeted by investigation and enforcement by existing and newly minted government employees.

Needless to say, under these new circumstances, choosing the right immigration lawyer becomes more and more daunting and uncertain. At Leslie I. Snyder, PA, our firm is always on the lookout for the latest regulations and “initiatives” that tend to muddy the already murky enough waters of immigration matters. Even if that means helping our clients to win a beauty contest.

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