VISA MANAGEMENT FOR THE UNITED STATES

The ESTA authorization is an electronic system that determines if travelers meet the requirements to enter the United States under the  Visa Waiver Program of the US Department of Homeland Security.

In principle, with the ESTA you can carry out all the activities that can be carried out with a type B1/B2 visa.

• This type of visa, known as “H1 instead of H1B” is the one that must be processed for a highly qualified worker (university level) to carry out tasks related to a contract for the provision of services.
• It would be the equivalent of an H1B visa, but in the case in which the worker is not going to receive any type of remuneration in the US or in Spain from an American source.
• Must meet the following requirements: The employee must be a skilled worker and meet the “specialty occupation” requirement of a standard H1B visa.
• Employee must have a degree equivalent to a US bachelor’s degree (if not, extensive professional experience will be required)
• The employee must remain employed by the foreign company during their stay in the United States.
• The employee cannot be paid directly by a US source (there is no rule against the customer paying the foreign company which in turn pays the employee or director)
• Along with a fast processing time and relatively low cost, this visa in lieu of the H1B visa offers the flexibility to structure any project from a time point of view.
• With this visa, any foreign company can send an employee to the United States to work with one of its clients or even with a US subsidiary or affiliate of the foreign parent.

E-2 nonimmigrant classification allows a worker from a country that has signed a trade agreement with the US to be admitted to the United States when a substantial amount of capital is invested in a US company.

It would also apply to certain employees of that person or of a qualifying business.

In order to opt for an E-2 type visa, the treaty investor must meet the following three points simultaneously:

• Be a citizen of a country with which the United States maintains a treaty of commerce and navigation.
• Have invested, or are actively in the process of investing, a substantial amount of capital in a company in the United States.
• Wanting to travel to the United States solely to develop and run the investment company. This is established by demonstrating ownership of at least 50% of the American company or having a management position from which to exercise operational control.

The capital must have been fully deposited and may have been in money or through the contribution of assets.

It is important to understand that a substantial amount of capital would be that considered:

a.- Substantial in relation to the total cost of buying an established company or establishing a new one.

b.-  Sufficient to ensure the financial commitment of the investor of the treaty with the successful operation of the company.

c.- Of adequate magnitude to support the probability that the investor will develop and run the company successfully. The lower the cost of the company, the greater the investment to be made, proportionally.

The investment firm cannot be considered “fringe”. A marginal business would be one that does not have the present or future ability to generate income sufficient to provide a minimum living for the treaty investor and their family.

Depending on the facts, a business may not be considered marginal even if it lacks the current ability to generate such revenue as long as the ability to generate such revenue is feasible within five years from the date the E-classification begins. 2 from the investor.

The L-1 nonimmigrant classification allows Spanish companies to transfer a professional with specialized knowledge related to the interests of the company, to their offices in the United States.

This classification also allows a Spanish company that does not yet have an affiliated office in the United States to send an employee with specialized knowledge to the United States for the purpose of establishing an office.

L visas are divided into two categories: L-1As that are intended for managerial personnel and L-1Bs that are intended for qualified personnel.

The management of these visas has two clearly differentiated phases:

• The first phase is managed in the US. L visas require prior authorization from USCIS. The request must be made by the American company on behalf of the worker. The American company must submit to USCIS an I-129 form with supporting documentation.
• Once USCIS approves the visa, it issues a form I-797 with which the visa is processed at the United States embassy in Spain, where the worker must go with the corresponding documentation.

There is also the possibility of processing it entirely in the US requesting a change of immigration status (I-539).

If the company has processed what is known as a “Blanket Permit”, the visa management is greatly simplified since it will not be necessary to carry out the American phase.

Dependents should apply for an L-2 visa.

The L-2 visa is the visa that must be processed by the dependents of a traveler who has an L-1 (I-129). By dependents we mean women and children under 21 years of age.

Unmarried couples are not eligible for this visa.

With this visa, the children will be able to go to school without problems. However, in order to work, the spouse must request a work permit, his EAD (employment authorization document).

The visa can be obtained from Spain or once in the US by requesting a change of immigration status (I-539).

The Blanket Permit is a permit granted by USCIS through which the open petition of possible type L visas is allowed.

In order for a company to obtain a “Blanket Permit” that would allow it to transfer workers from the Spanish company through the management of type L visas without the need to obtain prior approval from USCIS, the following circumstances must be met:

• The petitioner and each of the qualifying organizations (group companies) are engaged in trade or provision of services.
• The petitioner has an office in the United States that has been operating for a year or more.
• The petitioner has three or more national and foreign branches, subsidiaries and affiliates

The petitioner along with the other companies in its group may, collectively, meet any of the following criteria:

• Have obtained at least 10 L-1 approvals during the previous 12-month period.
• Have US subsidiaries or affiliates with combined annual sales of at least $25 million.
• Have a US workforce of at least 1,000 employees.

Approval of a blanket L petition does not guarantee that an employee will be granted the L-1B classification.

However, it does give the employer the flexibility to transfer eligible employees to the United States without having to file an individual petition with USCIS.

To qualify under the general application process, the employee who has specialized knowledge must also be a professional.

The TN Visa was created after the North American Free Trade Agreement (NAFTA) in 1994 to facilitate the temporary transfer of professionals between Canada, Mexico and the United States.

Since January 1, 2004, procedures have been simplified for Mexicans by eliminating the requirement for petitions and requests for labor conditions. Mexican citizens must apply for a TN visa at the US Embassy in Mexico City or at any US Consulate. The US employer must provide the applicant with a Letter of Employment.

The letter must indicate that the position in question in the United States requires the hiring of a person with a professional capacity consistent with Chapter 16 of NAFTA, in schedule 1603, Appendix 1603.d.1.

As a summary, Mexican citizens with a job offer in one of the positions listed in NAFTA are candidates for the TN visa.

The profession is recognized in NAFTA, and that the applicant meets the specific criteria for that profession, and the prospective position requires someone with that professional capacity, and that the applicant will be working for a US employer.

The Letter of Intern or the Diploma are not considered “Degrees” for the purposes of NAFTA, only the professional title is considered valid under NAFTA for this procedure. The title must meet the requirements demanded by the SEP.

If all these conditions are met, then the TN visa can be issued.