GSB Vol. 13, NO. 4, Pg. 18. U.S. Immigration Alternatives for International Businesspersons, Employees and Investors Who Wish to Enter the United States.

• Author: Robert E. Benta

Georgia Bar Journal

Volume 13.

GSB Vol. 13, NO. 4, Pg. 18.

U.S. Immigration Alternatives for International Businesspersons, Employees and Investors Who Wish to Enter the United States

GSB JournalVol. 13, NO. 4December 2007U.S. Immigration Alternatives for International Businesspersons, Employees and Investors Who Wish to Enter the United StatesRobert E. BentaThis article provides general information about U.S. immigration alternatives for persons who wish to enter the United States for business, investment or employment, on a temporary or permanent basis.

General Information About the U.S. Immigration Laws

Several branches of the U.S. federal government, including the Departments of Homeland Security,1 State and Labor, administer U.S. immigration laws and policies. Normally, U.S. immigration laws are administered by the Department of Homeland Security (DHS), acting through three separate divisions.2

U.S. immigration laws classify persons who want to come to the United States either as immigrants or non-immigrants. A person who, at the time of entering the United States, intends to remain permanently in the United States, is classified as an immigrant, while a person who, at the time of entering the United States, intends to remain in the United States only for a temporary period of time, is classified as a non-immigrant. Persons who want to come to the United States are generally presumed to be immigrants unless they can establish that they are entitled to non-immigrant visas.3 It is generally faster for a person to obtain a nonimmigrant visa than an immigrant visa.

Entry Into the United States

A person seeking initial entry into the United States generally must first obtain a visa from a U.S. consulate. Certain persons entering the United States as tourists or business visitors can enter without visas under the Visa Waiver Program described on page 18. Moreover, Canadian citizens are exempt from this visa requirement.4

Obtaining a visa from a U.S. consulate does not guarantee a person's admission into the United States. When a person with a visa arrives at a U.S. port of entry, a DHS officer must decide that the person is admissible before he or she will be allowed to enter the United States. These officers have the authority to exclude from the United States persons whom they deem ineligible for entry. (DHS officers at U.S. ports of entry also determine the admissibility of applicants for entry under the Visa Waiver Program and Canadians applying for entry without visas.)

A DHS officer who admits a person with a nonimmigrant visa annotates the person's Arrival-Departure Record (Form 1-94) with the date of arrival and the date of required departure. Persons admitted as non-immigrants must leave the United States by the date of required departure noted on the I-94 card unless they are able to extend the authorized stay, change to another non-immigrant status or obtain permanent resident status through the adjustment of status procedure described on page 17.

Lawful Permanent Residence in the United States

General Information About Lawful Permanent Residence

Except for "immediate relatives," i.e., spouses, parents or unmarried children under 21 years of age, of U.S. citizens and certain other exemptions, persons who wish to become lawful permanent residents of the United States are subject to a quota system.5 A person who is a lawful permanent resident is referred to in this article as a "permanent resident." A permanent resident is given a Permanent Resident Card, commonly known as a "green card," to evidence his or her lawful permanent residence.

The U.S. immigration laws administer the annual quota for lawful permanent residents by making available each year several hundred thousand green cards (exclusive of certain exempt categories). The number of green cards available in a given year is calculated according to a mathematical formula.6 A maximum of 25,620 green cards can be allocated to natives of any one independent country in a given year,7 while a maximum of 7,320 green cards can be allocated to natives of any dependent area in a given year.8

Before persons subject to the quota can apply for green cards, they must first qualify for one of the family-based or employment-based quota categories, and a green card must be available through the applicable quota category. Green cards are granted through the quota categories on a first-come, first-served basis. If in any year the number of persons who qualify for a particular quota category exceeds the number of green cards allocated to that category, the persons for whom green cards are not available are placed on a waiting list. Those on the waiting list must wait until additional visa numbers are allocated to their preference category in subsequent years before they can obtain visa numbers.

Family reunification is a priority of the U.S. immigration laws. As stated earlier, "immediate relatives" of U.S. citizens are exempted from the annual quota. Persons who do not qualify as "immediate relatives," but who are close relatives of U.S. citizens or permanent residents, may qualify under one of four family-based quota categories.9

In addition to the four family-based quota categories, five quota categories10 are available to persons coming to the United States for employment, to investors who create employment through their investments, and to persons who qualify as "special immigrants." At least 140,000 immigrant visa numbers are allocated among these five categories annually.11

Most persons seeking green cards based on job offers from U.S. employers in the United States must first complete the "labor certification" process, sponsored through the U.S. Department of Labor (DOL) by their employers.12 The DOL issues a labor certification after it has determined that a qualified, available U.S. worker in the relevant location of the United States is not available to perform the particular job and that the offered wages and working conditions will not adversely affect similarly employed U.S. workers.

The spouse and unmarried children under 21 years of age of a person who obtains a green card automatically obtain green cards as well, based on their relationship to the principal applicant. Spouses and children who obtain green cards on this "derivative" basis can enjoy all rights available to any permanent resident, including the right to work.

Overview of the Employment-Based Quota Categories

The first employment-based category is available to "priority workers."13 A labor certification is not required for "priority workers." A person can qualify as a "priority worker" through one of three subcategories. To qualify for the first subcategory (persons with "extraordinary ability" in arts, sciences, education, business or athletics), the applicant must show sustained national or international acclaim. The second subcategory is available to outstanding professors and researchers who can establish international recognition or acclaim. The third subcategory is available to certain multinational executives and managers who have worked as executives or managers for at least one of the three years preceding their admission to the United States and who will work in the United States as an executive or manager with the same employer or an affiliate or subsidiary thereof.

The second employment-based category is available to persons who are members of the professions holding advanced degrees (or the equivalent) or persons with exceptional ability.14 Employers sponsoring employees for this second preference category are generally required to obtain a labor certification. "Exceptional ability" can be in the sciences, the arts or in business and...