Immigration Law

Hackett & Hackett P.C. provides legal advice and assistance on a variety of U.S. immigration matters. Contact our attorneys to find out how best we can serve you and what potential immigration matter or case you would like assistance with. Below is a sample of the areas that our immigration attorneys practice in and before:

  • Department of Homeland Security
  • Board of Immigration Appeals
  • U.S. Immigration Courts
  • U.S. Citizenship and Immigration Service
  • U.S. Green Cards (see below for more on Green Cards)
  • Green Card by Marriage to a U.S. citizen
  • K-1 Financè Visa
  • Sponsoring Parents for a Green Card
  • Sponsoring Child for a Green Card
  • Self Petition as a Widow(er) of a U.S. Citizen
  • Self Petition as a Victim of Domestic Violence (VAWA)
  • U-Visa Victim of Certain Criminal Activity
  • Asylum Applications U.S
  • Cancellation of Removal Proceedings
  • U.S. Naturalization / U.S. Citizenship
  • U.S. Employment Work Visas
  • Permanent Employment Visa
  • HB-1 Visa (see below for more information on HB-1 requirements)
  • L-1 Visa
  • TN Visas
  • O Visas
  • P Visas
  • Employment Authorization Document (EAD)
  • U.S. Business Investor Visas
  • E-2 Visa for Investor (see below for more information)
  • E-1 Visa for Traders (see below for more information
  • EB-5 Visa
  • U.S. Deportation / Immigration Defense / Immigration Court
  • Applying for Asylum
  • Deportation Proceedings
  • Cancellation of Removal
  • Cancellation of Removal for LPRS
  • Marriage During Removal Proceedings
  • Waivers
  • Formers of Relief
  • Extension / Change of Status
  • Extending your Status
  • Changing your Status

Legal Permanent Resident Extended Leave outside United States
If you leave the United States for an extended period of time as a legal permanent resident, it may be the case that you may be denied re-entry back into the United States. If this happens, and it may be for a number of reasons, it is important that you speak with one of our immigration attorneys to discuss your case and what possible options are available to you under U.S. immigration law.


Effect of Criminal Proceedings/Conviction on Immigration
Failure of your criminal defense attorney to advise you of the effects of the criminal proceeding on your status in the United States can results in legal consequences, unless you are advised according in accordance with U.S. law. Our immigration attorneys have advised clients on the effects and legal ramifications on a criminal proceeding on there immigration status.


GREEN CARD THROUGH FAMILY
In the United States there are several ways to obtaining what is termed a “Green Card.” Below are some of the ways to become a Green Card holder, for example:


A close family relative of a U.S. Citizen, this includes spouses, unmarried children under the age of 21, and parents of U.S. citizen petitioners 21 or older.


A family member of a U.S. citizen that fits into a preference category, this includes unmarried sons or daughters over the age of 21, married children of any age, and brothers and sisters of U.S. citizen petitioners 21 or older.


A family member of a green card holder, this includes spouses and unmarried children of the sponsoring green card holder.
A member of a special category, this can include battered spouse or child (VAWA), a K nonimmigrant, a person born to a foreign diplomat in the United States, a V nonimmigrant or a widow(er) of a U.S. Citizen.


GREEN CARD THROUGH A JOB
The main ways to immigrate based on a job offer or employment are listed below:


Green Card Through a Job Offer: You may be eligible to become a permanent resident based on an offer of permanent employment in the United States. Most categories require an employer to get a labor certification and then file a Form I-140, Immigrant Petition for Alien Worker, for you.


Green Card Through Investment: Green cards may be available to investors/entrepreneurs who are making an investment in an enterprise that creates new U.S. jobs.


Green Card Through Self Petition: Some immigrant categories allow you to file for yourself (“self-petition”). This option is available for either “Aliens of Extraordinary Ability” or certain individuals granted a National Interest Waiver.


Green Card Through Special Categories of Jobs: There are a number of specialized jobs that may allow you to get a green card based on a past or current job, such as:

  • Afghan/Iraqi Translator
  • Broadcaster
  • International Organization Employee
  • Iraqi Who Assisted the U.S. Government
  • NATO-6 Nonimmigrant
  • Panama Canal Employee
  • Physician National Interest Waiver
  • Religious Worker

All of these require a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, and are described in Section 101(a)(27) of the Immigration and Nationality Act (INA). In some cases, you may be able to file the immigrant petition (either a Form I-140 or I-360, depending on your category) at the same time that you file Form I-485, known as “concurrent filing.” If you are not eligible to adjust your status inside the United States to a permanent resident, the immigrant petition will be sent to the U.S.consulate abroad to complete the visa process. In order to apply for a green card, there must be a visa immediately available to you.


HB-1 Visa
In general, a valid employer-employee relationship is determined by whether the U.S. employer may hire, pay, fire, supervise or otherwise control the work of the H-1B worker. In some cases, the sole or majority owner of the petitioning company or organization may be able to establish a valid employer-employee relationship, if the facts show that the petitioning entity has the right to control the beneficiary’s employment. Your job must meet at least one of the requirements.

  • A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for the particular position;
  • The degree requirement is common for this position in the industry, or the job is so complex or unique that it can only be performed by someone with at least a bachelor's degree in a field related to the position;
  • The employer normally requires a degree or its equivalent for the position; or
  • The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor's or higher degree.

Your degree must also relate to the specialty occupation, some of the evidence you may submit to demonstrate that your degree is related to your position includes:

  • A detailed explanation of the specific duties of the position, the product or service your company provides, or the complex nature of the role you will perform, and how your degree relates to the role.
  • Written opinions from experts in the field explaining how the degree is related to the role you will perform.
  • Printouts from online resources describing the degree fields normally associated with the occupation.  
  • Evidence that similar companies in your industry require similar degrees for similar positions.

A question may arise, can you qualify without a bachelor’s degree, if your position qualifies, and you do not have at least a bachelor’s degree in a field related to your position, then you may qualify by:

  • Holding an unrestricted state license, registration or certification which authorizes you to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment; or
  • Having education, specialized training, and/or progressively responsible experience that is equivalent to the completion of a U.S. bachelor’s or higher degree in the specialty occupation, and having recognition of expertise in the specialty. through progressively responsible positions directly related to the specialty. In general, 3 years of work experience or training in the field is considered as equivalent to 1 year of college.

You must be paid the prevailing wage, the the prevailing wage is determined based on the position in which you will be employed and the geographic location where you will be working (among other factors). The U.S. Department of Labor (DOL) maintains a database with applicable current prevailing wage levels based on occupation and work location. Also note the limited amount of H-B1 Visas.


The H-1B visa has an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions filed on behalf of beneficiaries with a U.S. master’s degree or higher are exempt from the cap. Additionally, H-1B workers who are petitioned for or employed at an institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization are not subject to this numerical cap.  Cap numbers are often used up very quickly, so it is important to plan in advance if you will be filing for an H-1B visa that is subject to the annual H-1B numerical cap. The U.S. government’s fiscal year starts on Oct. 1. H-1B petitions can be filed up to 6 months before the start date, which is generally April 1 for an October 1 start date.


B-1 Temporary Business Visitor Visa
You may be eligible for a B-1 visa if you will be participating in business activities of a commercial or professional nature in the United States, including, but not limited to:

  • Consulting with business associates
  • Traveling for a scientific, educational, professional or business convention, or a conference on specific dates
  • Settling an estate
  • Negotiating a contract
  • Participating in short-term training
  • Transiting through the United States: certain persons may transit the United States with a B-1 visa
  • Deadheading: certain air crewmen may enter the United States as deadhead crew with a B-1 visa

Eligibility Criteria
You must demonstrate the following in order to be eligible to obtain a B-1 visa:

  • The purpose of your trip is to enter the United States for business of a legitimate nature
  • You plan to remain for a specific limited period of time
  • You have the funds to cover the expenses of the trip and your stay in the United States
  • You have a residence outside the United States in which you have no intention of abandoning, as well as other binding ties which will ensure your return abroad at the end of the visit
  • You are otherwise admissible to the United States

Application Process
For information on applying for a B-1 visa, see the “Department of State” link to the right.
Aliens seeking a B-1 visa from certain countries may be able to enter the United States without a visa.  For information about exemptions from the visa requirements, see the “Customs & Border Protection” link to the right.


If you are in the United States in another valid nonimmigrant status, you may be eligible to change to B-1 status.  To change to B-1 status, you must file a Form I-539, Application to Extend/Change Nonimmigrant Status.  For more information, see the “Change my Nonimmigrant Status” link to the right.


Period of Stay/Extension of Stay
The initial period of stay is 1 to 6 months, 6 months being the maximum, however, an extension of stay the total amount of time permitted in B-1 status on any one trip is generally 1 year.


At the port of entry, an immigration official must authorize your admission to the United States, and, if you are eligible for admission, you may be admitted initially for the period necessary to carry out your business activities, up to a maximum period of 1 year.  If you who wish to stay beyond the time indicated on the Form I-94 without departing from the United States, you must file Form I-539, Application to Extend/Change Nonimmigrant Status and submit any required supporting documents to USCIS.


Family of B-1 Visa Holders
Your spouse and children are not eligible to obtain a dependent visa. Each of your dependents who will be accompanying or following to join you must apply separately for a B-2 visa and must follow the regulations for that visa.


Certain B-1 Activities that Require an Employment Authorization Document
The following types of B-1 business visitors require employment authorization:

  • A personal or domestic servant who is accompanying or following to join an employer who seeks admission into, or is already in, the United States in aB, E, F, H, I, J, L, or TN nonimmigrant classification.
  • A domestic servant of a U.S. citizen accompanying or following to join his or her U.S. citizen employer who has a permanent home or is stationed in a foreign country, and who is temporarily visitingthe United States.
  • An employee of a foreign airline engaged in international transportation of passengers freight, whose position with the foreign airline would otherwise entitle the employee to treaty trader nonimmigrant classification (E-1) and who is precluded from such classification solely because the employee is not a national of the country of the airline's nationality or because there is no treaty of commerce and navigation in effect between the United States and the country of the airline's nationality.

Note:  All applicants for a B-1 visa or admission as a B-1 business visitor as a personal or domestic servant described above must demonstrate the following:

  • You have a residence abroad in which you have no intention of abandoning
  • You have at least 1 year of experience as a personal or domestic servant
  • You have been employed abroad by your employer for at least 1 year prior to the employer’s admission into the United States or if you have been employed abroad by the employer for less than 1year, the employer must show that while abroad, he or she has regularly employed a domestic servant in the same capacity as that intended for your employment.

Before you may commence employment in any of the above three activities, you will need to file Form I-765, Application for Employment Authorization. For more information on filing the Form I-765, see the “Work Authorization” link to your right.


L-1A Intracompany Transferee Executive or Manager
The L-1A nonimmigrant classification enables a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company which does not yet have an affiliated U.S. office to send an executive or manager to the United States with the purpose of establishing one.  The employer must file a Form I-129, Petition for a Nonimmigrant Worker with fee, on behalf of the employee. The following information describes some of the features and requirements of the L-1 nonimmigrant visa program.


General Qualifications of the Employer and Employee
To qualify for L-1 classification in this category, the employer must:
Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1.  While the business must be viable, there is no requirement that it be engaged in international trade.


Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
To qualify, the named employee must also:

  • Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
  • Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.

Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.


Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization.  It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.  


New Offices
For foreign employers seeking to send an employee to the United States as an executive or manager to establish a new office, the employer must also show that:


The employer has secured sufficient physical premises to house the new office;
The employee has been employed as an executive or manager for one continuous year in the three years preceding the filing of the petition; and The intended U.S. office will support an executive or managerial position within one year of the approval of the petition.


Period of Stay
Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.  All other qualified employees will be allowed a maximum initial stay of three years.  For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years.


Family of L-1 Workers
The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age.  Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.


Change/Extend Nonimmigrant Status
If these family members are already in the United States and seeking change of status to or extension of stay in L-2 classification, they may apply collectively, with fee, on an Form I-539, Application to Change/Extend Nonimmigrant Status.


Spouses
Spouses of L-1 workers may apply for work authorization by filing a Form I-765, Application for Employment Authorization with fee.  If approved, there is no specific restriction as to where the L-2 spouse may work.


Blanket Petitions
Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition.  Eligibility for blanket L certification may be established if:


The petitioner and each of the qualifying organizations are engaged in commercial trade or services;
The petitioner has an office in the United States which has been doing business for one year or more;
The petitioner has three or more domestic and foreign branches, subsidiaries, and affiliates; and
The petitioner along with the other qualifying organizations meet one of the following criteria:

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

The approval of a blanket L petition does not guarantee that an employee will be granted L-1A classification.  It does, however, provide the employer with the flexibility to transfer eligible employees to the United States quickly and with short notice without having to file an individual petition with USCIS.


Where an L-1 visa is required
In most cases, once the blanket petition has been approved, the employer need only complete Form, I-129S,Nonimmigrant Petition Based on Blanket L Petition, and send it to the employee along with a copy of the blanket petition Approval Notice and other required evidence, so that the employee may present it to a consular officer in connection with an application for an L-1 visa.


Canadians with an approved blanket petition seeking L-1 classification
Canadian citizens, who are exempt from the L-1 visa requirement, may present the completed Form I-129S and supporting documentation to a U.S. Customs and Border Protection (CBP) Officer at certain ports-of-entry on the United States-Canada land border or at a United States pre-clearance/pre-flight inspection station in Canada, in connection with an application for admission to the United States in L-1 status.


Optional filing of Form I-129S with USCIS
If the prospective L-1 employee is visa-exempt, the employer may file the Form I-129S and supporting documentation with the USCIS Service Center that approved the blanket petition, instead of submitting the form and supporting documentation directly with CBP.


L-1B Intracompany Transferee Specialized Knowledge
The L-1B nonimmigrant classification enables a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interests from one of its affiliated foreign offices to one of its offices in the United States.  This classification also enables a foreign company which does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States to help establish one.  The employer must file Form I-129, Petition for a Nonimmigrant Worker with fee, on behalf of the employee.


General Qualifications of the Employer and Employee
To qualify for L-1 classification in this category, the employer must:
Have a qualifying relationship with a foreign company (parent company, branch, subsidiary, or affiliate, collectively referred to as qualifying organizations); and


Currently be, or will be, doing business as an employer in the United States and in at least one other country directly or through a qualifying organization for the duration of the beneficiary’s stay in the United States as an L-1.  While the business must be viable, there is no requirement that it be engaged in international trade.  


Doing business means the regular, systematic, and continuous provision of goods and/or services by a qualifying organization and does not include the mere presence of an agent or office of the qualifying organization in the United States and abroad.
To qualify, the named employee must also:

  • Generally have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States; and
  • Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.

Specialized knowledge means either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures.


L-1 Visa Reform Act of 2004
The L-1 Visa Reform Act of 2004 applies to all petitions filed on or after June 6, 2005, and is directed particularly to those filed on behalf of L-1B employees who will be stationed primarily at the worksite of an of an employer other than the petitioning employer or its affiliate, subsidiary, or parent.  In order for the employee to qualify for L-1B classification in this situation, the petitioning employer must show that:
The employee will not be principally controlled or supervised by such an unaffiliated employer; and
The work being provided by the employee is not considered to be labor for hire by such an unaffiliated employer.
See INA 214(c)(2)(F) and Chapter 32.3(c) of the USCIS Adjudicator’s Field Manual, available from the "Laws" tab at the top of this page for further details.


New Offices
For foreign employers seeking to send an employee with specialized knowledge to the United States to be employed in a qualifying new office, the employer must show that:

  • The employer has secured sufficient physical premises to house the new office ; and
  • The employer has the financial ability to compensate the employee and begin doing business in the United States.

Period of Stay
Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year.  All other qualified employees will be allowed a maximum initial stay of three years.  For all L-1B employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of five years.


Family of L-1 Workers
The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age.  Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee.


Change/Extend Status
If these family members are already in the United States and seeking change of status to or extension of stay in L-2 classification, they may apply collectively, with fee, using Form I-539, Application to Extend/Change Status.


Spouses
Spouses of L-1 workers may apply for work authorization by filing a Form I-765,  Application for Employment Authorization with fee.  If approved, there is no specific restriction as to where the L-2 spouse may work.


Blanket Petitions
Certain organizations may establish the required intracompany relationship in advance of filing individual L-1 petitions by filing a blanket petition.  Eligibility for blanket L certification may be established if:
The petitioner and each of the qualifying organizationsare engaged in commercial trade or services;
The petitioner has an office in the United States which has been doing business for one year or more;
The petitioner has three or more domestic and foreign branches, subsidiaries, and affiliates; and
The petitioner along with the other qualifying organizations, collectively, meet one of the following criteria:

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

In order to qualify under the blanket petitioning process, the employee having specialized knowledge must also be a professional.


Where an L-1 visa is required
In most cases, once the blanket petition has been approved, the employer need only complete a Nonimmigrant Petition Based on Blanket L Petition, Form I-129S and send it to the employee along with a copy of the blanket petition Approval Notice and other required evidence, so that the employee may present it to a consular officer in connection with an application for an L-1 visa.


Canadians with an approved blanket petition seeking L-1 classification
Canadian citizens, who are exempt from the L-1 visa requirement, may present the completed Form I-129S and supporting documentation to a U.S. Customs and Border Protection (CBP) Officer at certain ports-of-entry on the United States-Canada land border or at a United States pre-clearance/pre-flight inspection station in Canada, in connection with an application for admission to the United States in L-1 status.


Optional filing of Form I-129S with USCIS
If the prospective L-1 employee is visa-exempt, the employer may file the Form I-129S and supporting documentation with the USCIS Service Center that approved the blanket petition, instead of submitting the form and supporting documentation directly with CBP.


E-1 Treaty Traders
The E-1 nonimmigrant classification allows a 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 solely to engage in international trade on his or her own behalf.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification.  (For dependent family members, see “Family of E-1 Treaty Traders and Employees” below.)
The U.S. Department of State’s Treaty Countries list all countries with which the United States maintains a treaty of commerce and navigation.


Who May File for Change of Status to E-1 Classification
If the treaty trader is currently in the United States in a lawful nonimmigrant status, he or she may file Form I-129 to request a change of status to E-1 classification.  If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 on the employee’s behalf.


How to Obtain E-1 Classification if Outside the United States
A request for E-1 classification may not be made on Form I-129 if the person being filed for is physically outside the United States.  Interested parties should refer to the U.S. Department of State website for further information about applying for an E-1 nonimmigrant visa abroad.  Upon issuance of a visa, the person may then apply to a DHS immigration officer at a U.S. port of entry for admission as an E-1 nonimmigrant.


General Qualifications of a Treaty Trader
To qualify for E-1 classification, the treaty trader must:
Be a national of a country with which the United States maintains a treaty of commerce and navigation
Carry on substantial trade
Carry on principal trade between the United States and the treaty country which qualified the treaty trader for E-1 classification.
Trade is the existing international exchange of items of trade for consideration between the United States and the treaty country.  Items of trade include but are not limited to:

  • Goods
  • Services
  • International banking
  • Insurance
  • Transportation
  • Tourism
  • Technology and its transfer
  • Some news-gathering activities.

Substantial trade generally refers to the continuous flow of sizable international trade items, involving numerous transactions over time.  There is no minimum requirement regarding the monetary value or volume of each transaction.  While monetary value of transactions is an important factor in considering substantiality, greater weight is given to more numerous exchanges of greater value.
Principal trade between the United States and the treaty country exists when over 50% of the total volume of international trade is between the U.S. and the trader’s treaty country.  


General Qualifications of the Employee of a Treaty Trader
To qualify for E-1 classification, the employee of a treaty trader must:
Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
Meet the definition of “employee” under the relevant law
Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.
If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country.  These owners must be maintaining nonimmigrant treaty trader status.  If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty traders.


Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.


Special qualifications are skills which make the employee’s services essential to the efficient operation of the business.  There are several qualities or circumstances which could, depending on the facts, meet this requirement.  These include, but are not limited to:

  • The degree of proven expertise in the employee’s area of operations
  • Whether others possess the employee’s specific skills
  • The salary that the special qualifications can command
  • Whether the skills and qualifications are readily available in the United States
  • Knowledge of a foreign language and culture does not, by itself, meet this requirement.  Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.  

Period of Stay
Qualified treaty traders and employees will be allowed a maximum initial stay of two years.  Requests for extension of stay may be granted in increments of up to two years each.  There is no maximum limit to the number of extensions an E-1 nonimmigrant may be granted.  All E-1 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.
An E-1 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.  It is generally not necessary to file a new Form I-129 with USCIS in this situation.


Terms and Conditions of E-1 Status
A treaty trader or employee may only work in the activity for which he or she was approved at the time the classification was granted.  An E-1 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:

  • Relationship between the organizations is established
  • Subsidiary employment requires executive, supervisory, or essential skills
  • Terms and conditions of employment have not otherwise changed.

USCIS must approve any substantive change in the terms or conditions of E-1 status.  A “substantive change” is defined as a fundamental change in the employer’s basic characteristics, such as, but not limited to, a merger, acquisition, or major event which affects the treaty trader or employee’s previously approved relationship with the organization.  The treaty trader or enterprise must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty trader or affected employee.  The petition must include evidence to show that the treaty trader or affected employee continues to qualify for E-1 classification.


It is not required to file a new Form I-129 to notify USCIS about non-substantive changes.  A treaty trader or organization may seek advice from USCIS, however, to determine whether a change is considered substantive.  To request advice, the treaty trader or organization must file Form I-129 with fee and a complete description of the change.


A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty trader or employee’s ability to obtain E-1 status.


Family of E-1 Treaty Traders and Employees
Treaty traders and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age.  Their nationalities need not be the same as the treaty trader or employee.  These family members may seek E-1 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.  If the family members are already in the United States and seeking change of status to or extension of stay in an E-1 dependent classification, they may apply by filing a single Form I-539 with fee.  Spouses of E-1 workers may apply for work authorization by filing Form I-765 with fee.  If approved, there is no specific restriction as to where the E-1 spouse may work.


As discussed above, the E-1 treaty trader or employee may travel abroad and will generally be granted an automatic two-year period of admission when returning to the United States.  Unless the family members are accompanying the E-1 treaty trader or employee at the time the latter seeks admission to the United States, the new readmission period will not apply to the family members.  To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E-1 status, and apply for an extension of stay before their own validity expires.


E-2 Treaty Investors
The E-2 nonimmigrant classification allows a 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.  Certain employees of such a person or of a qualifying organization may also be eligible for this classification.  (For dependent family members, see “Family of E-2 Treaty Investors and Employees” below.)


The U.S. Department of State’s Treaty Countries list all countries with which the United States maintains a treaty of commerce and navigation.


Who May File for Change of Status to E-2 Classification
If the treaty investor is currently in the United States in a lawful nonimmigrant status, he or she may file Form I-129 to request a change of status to E-2 classification.  If the desired employee is currently in the United States in a lawful nonimmigrant status, the qualifying employer may file Form I-129 on the employee’s behalf.


How to Obtain E-2 Classification if Outside the United States
A request for E-2 classification may not be made on Form I-129 if the person being filed for is physically outside the United States.  Interested parties should refer to the U.S. Department of State website for further information about applying for an E-2 nonimmigrant visa abroad.  Upon issuance of a visa, the person may then apply to a DHS immigration officer at a U.S. port of entry for admission as an E-2 nonimmigrant.


General Qualifications of a Treaty Investor
To qualify for E-2 classification, the treaty investor must:

  • Be a national of a country with which the United States maintains a treaty of commerce and navigation
  • Have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States
  • Be seeking to enter the United States solely to develop and direct the investment enterprise.  This is established by showing at least 50% ownership of the enterprise or possession of operational control through a managerial position or other corporate device.

An investment is the treaty investor’s placing of capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit.  The capital must be subject to partial or total loss if the investment fails.  The treaty investor must show that the funds have not been obtained, directly or indirectly, from criminal activity.


A substantial amount of capital is:
Substantial in relationship to the total cost of either purchasing an established enterprise or establishing a new one
Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise
Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.  The lower the cost of the enterprise, the higher, proportionately, the investment must be to be considered substantial.


A bona fide enterprise refers to a real, active and operating commercial or entrepreneurial undertaking which produces services or goods for profit.  It must meet applicable legal requirements for doing business within its jurisdiction.


Marginal Enterprises
The investment enterprise may not be marginal.  A marginal enterprise is one that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family.  Depending on the facts, a new enterprise might not be considered marginal even if it lacks the current capacity to generate such income.  In such cases, however, the enterprise should have the capacity to generate such income within five years from the date that the treaty investor’s E-2 classification begins.


General Qualifications of the Employee of a Treaty Investor
To qualify for E-2 classification, the employee of a treaty investor must:

  • Be the same nationality of the principal alien employer (who must have the nationality of the treaty country)
  • Meet the definition of “employee” under relevant law
  • Either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

If the principal alien employer is not an individual, it must be an enterprise or organization at least 50% owned by persons in the United States who have the nationality of the treaty country.  These owners must be maintaining nonimmigrant treaty investor status.  If the owners are not in the United States, they must be, if they were to seek admission to this country, classifiable as nonimmigrant treaty investors.  


Duties which are of an executive or supervisory character are those which primarily provide the employee ultimate control and responsibility for the organization’s overall operation, or a major component of it.


Special qualifications are skills which make the employee’s services essential to the efficient operation of the business.  There are several qualities or circumstances which could, depending on the facts, meet this requirement.  These include, but are not limited to:

  • The degree of proven expertise in the employee’s area of operations
  • Whether others possess the employee’s specific skills
  • The salary that the special qualifications can command
  • Whether the skills and qualifications are readily available in the United States.

Knowledge of a foreign language and culture does not, by itself, meet this requirement.  Note that in some cases a skill that is essential at one point in time may become commonplace, and therefore no longer qualifying, at a later date.


Period of Stay
Qualified treaty investors and employees will be allowed a maximum initial stay of two years.  Requests for extension of stay may be granted in increments of up to two years each.  There is no maximum limit to the number of extensions an E-2 nonimmigrant may be granted.  All E-2 nonimmigrants, however, must maintain an intention to depart the United States when their status expires or is terminated.


An E-2 nonimmigrant who travels abroad may generally be granted an automatic two-year period of readmission when returning to the United States.  It is generally not necessary to file a new Form I-129 with USCIS in this situation.


Terms and Conditions of E-2 Status
A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted.  An E-2 employee, however, may also work for the treaty organization’s parent company or one of its subsidiaries as long as the:

  • Relationship between the organizations is established
  • Subsidiary employment requires executive, supervisory, or essential skills
  • Terms and conditions of employment have not otherwise changed.

USCIS must approve any substantive change in the terms or conditions of E-2 status.  A “substantive change” is defined as a fundamental change in the employer’s basic characteristics, such as, but not limited to, a merger, acquisition, or major event which affects the treaty investor or employee’s previously approved relationship with the organization.  The treaty investor or enterprise must notify USCIS by filing a new Form I-129 with fee, and may simultaneously request an extension of stay for the treaty investor or affected employee.  The Form I-129 must include evidence to show that the treaty investor or affected employee continues to qualify for E-2 classification.


It is not required to file a new Form I-129 to notify USCIS about non-substantive changes.  A treaty investor or organization may seek advice from USCIS, however, to determine whether a change is considered substantive.  To request advice, the treaty investor or organization must file Form I-129 with fee and a complete description of the change.


A strike or other labor dispute involving a work stoppage at the intended place of employment may affect a Canadian or Mexican treaty investor or employee’s ability to obtain E-2 status.


Family of E-2 Treaty Investors and Employees
Treaty investors and employees may be accompanied or followed by spouses and unmarried children who are under 21 years of age.  Their nationalities need not be the same as the treaty investor or employee.  These family members may seek E-2 nonimmigrant classification as dependents and, if approved, generally will be granted the same period of stay as the employee.  If the family members are already in the United States and are seeking change of status to or extension of stay in an E-2 dependent classification, they may apply by filing a single Form I-539 with fee.  Spouses of E-2 workers may apply for work authorization by filing Form I-765 with fee.  If approved, there is no specific restriction as to where the E-2 spouse may work.


As discussed above, the E-2 treaty investor or employee may travel abroad and will generally be granted an automatic two-year period of readmission when returning to the United States.  Unless the family members are accompanying the E-2 treaty investor or employee at the time the latter seeks readmission to the United States, the new readmission period will not apply to the family members.  To remain lawfully in the United States, family members must carefully note the period of stay they have been granted in E-2 status, and apply for an extension of stay before their own validity expires.

In association with Merit Legal Solicitors
(UK & Europe)