US MIGRATION

How can I get an E-3 visa? / How do I know if I am eligible for an E-3 visa?
The E-3 visa is for Australian citizens only and allows qualifying applicants to travel to the US for the sole purpose of working in a specialty occupation. The spouse and children of the qualifying applicant need not be Australian citizens.

The E-3 visa is initially valid for two years. The visa can be renewed for another two years and continued to be renewed indefinitely in two year increments. Dependent Spouses may receive work authorisation.

Requirements
A visa applicant must be sponsored by a US company in order to apply for an E-3 visa.

To qualify as a sponsor for an E-3 visa, sponsors must meet the following criteria:

• be a US employer with a valid Employer ID number,
• pay the employee on US payroll,
• pay the employee at or above the prevailing wage based on the specialty occupation and location of employment, and
• must file a Labor Condition Application (LCA) with the Department of Labor (DOL).

To qualify for an E-3 visa, applicants must meet the following criteria:

• Australian citizenship,
• have a job offer with a qualified US employer in a specialty occupation,
• have a Bachelor degree, or the equivalent work experience (12 years) related to the nominated specialty occupation.

The E-2 non-immigrant visa classification allows a national of a treaty country (a country with which the US maintains a treaty of commerce and navigation) to be admitted to the US when investing a substantial amount of capital in a US business. Certain employees of such a person or of a qualifying organisation may also be eligible for this classification.

The E-2 visa classification can be used by individual investors starting their own enterprise in the US or larger, existing companies that are expanding their business into the US market. The E-2 visa is beneficial as it is not limited by an annual quota as in the case of an E-3 visa or an H-1B. Additionally, the E-2 visa application is submitted directly to the US Consulate and bypasses the USCIS.

In most circumstances, the E-2 visa is renewable in two year increments indefinitely.

Requirements
In order to qualify for the E-2 visa category, applicants must meet the following criteria:

• the investor, either a real or corporate person, must be a national of a treaty country,
• the investment must be substantial. It must be sufficient to ensure the successful operation of the enterprise,
• the investment must be a real operating enterprise. Speculative investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment,
• the investment must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the US,
• the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed, and
• the investor must be coming to the US to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or essential skill capacity.

The L-1 visa allows companies operating both in the US and abroad to transfer certain classes of employees from their foreign operations to the US. An L-1 visa is available if you are the employee of an international company which is temporarily transferring you to a parent branch, affiliate, or subsidiary of the same company in the US.

The L-1 visa is a good way for large or small overseas companies to expand their business and services to the US. This is advantageous to companies because it allows for the transfer of a highly proficient manager or executive who has direct knowledge of operations, allowing the setup of a new branch in compliance with the goals and objectives of the company’s main office.

Requirements
There are two sub categories under the L-1 visa classification; L-1A for executives and managers, and L-1B for workers with specialised knowledge.

To qualify for L-1 classification in this category, the US employer must:

• have a qualifying relationship with a non-US company (parent company, branch, subsidiary, or affiliate), and
• currently be, or will be, doing business as an employer in the US and in at least one other country for the duration of the applicant’s stay in the US as an L-1 visa holder.

To qualify for the L-1 classification (whether L-1A or L-1B) the employee must:

• generally have been working for a qualifying organisation abroad for one continuous year within the three years immediately preceding the application, and
• be seeking to enter the US to be employed in an executive, managerial, or specialized knowledge capacity for a branch of the same employer or one of its qualifying organisations.

The O-1 visa is a non-immigrant visa which allows foreign nationals with extraordinary ability in one of the following three categories to enter into the US and engage in official activity:

• sciences, education, business and athletics,
• arts, or
• motion picture or TV industries.

The O-1 visa offers some significant advantages when compared to other US non-immigrant work visas. For example, this visa category allows for essential support personnel to be included in the application (O-2) as well as accompanying dependents (O-3). Additionally, the O-1 visa is not limited by an annual quota and does not require that the applicant have a Bachelor’s degree like many other US visa categories.

Applicants qualifying for the O-1 visa category may also meet the requirements for a permanent residence application.

Requirements 
To qualify for an O-1 visa, applicants must demonstrate extraordinary ability by sustained national or international acclaim and must be coming temporarily to the US to continue work in the area of extraordinary ability.

Extraordinary ability in the fields of science, education, business or athletics means a level of expertise indicating that the person is ranked within one of the small percentage who has risen to the very top of the field of endeavour.

Extraordinary ability in the field of arts means distinction. Distinction means a high level of achievement in the field of the arts evidenced by a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

To qualify for an O-1 visa in the motion picture or television industry, the applicant must demonstrate extraordinary achievement evidenced by a degree of skill and recognition significantly above that ordinarily encountered to the extent the person is recognised as outstanding, notable or leading in the motion picture and/or television field.

Does a US work visa allow me to become a permanent resident?
Having a work visa does not necessarily allow you to become a permanent resident.  There are a few different ways for applying for US permanent residence, where you would obtain what is known as a Green Card. The most common ways to get a Green Card would be through one of three methods:

• family-based immigration,
• employment-based immigration, or
• diversity lottery.

Please contact our office for more information about obtaining a Green Card. 

Do I need a job offer to get a work visa?
Most US work visas require you to secure a valid job offer before you apply for the visa.

May I bring my spouse and family to the US on my work visa?
Yes, your spouse and children under the age of 21 are eligible to accompany you to the US.  Depending on the visa you receive, your spouse may obtain work rights.  Your spouse and children may attend school as dependents.

If you do not meet the requirements of the Visa Waiver Program or ESTA, you may be eligible for a visitor visa which is a non-immigrant visa for persons desiring to enter the US temporarily for business (B-1) and for pleasure or medical treatment (B-2). The Visa Waiver Program or ESTA is only available to citizens of certain countries. Additionally, many people may not qualify for the Visa Waiver Program or ESTA if they have had any previous issues with US immigration such as a visa denial or have a criminal history.

Generally, the B-1 visa is for travellers consulting with business associates, attending scientific, educational, professional or business conventions/conferences, settling an estate or negotiating contracts. The B-2 visa is for travel that is recreational in nature, including tourism, visits with friends or relatives, medical treatment and activities of a fraternal, social or service nature. Generally, the B-1 and B-2 visas are combined and issued as one visa: the B-1/B-2.

Requirements
In order to qualify for the B-1/B-2 visa category, applicants must meet the following criteria:

• be travelling to the US for a temporary visit, such as business, pleasure, or medical treatment,
• remain in the US for a specific, limited period of time, under six months,
• provide evidence of funds to cover their expenses while in the US,
• maintain a residence outside the US,
• apply for the visa through an in person interview at the US Consulate, and
• demonstrate to the reviewing US Consular Officer that they have binding family, social, and economic ties to their home country to ensure that they will return at the end of their visit to the US.

I am married to a US citizen how can I get a Green Card?
An individual who is married to a US citizen is eligible to apply for an immigrant visa in order to become a permanent resident of the US. The visas are immediately available meaning that once approved, a visa may be issued.

The US citizen is required to sponsor their spouse and meet specific criteria for this visa.

Specific requirements include but are not limited to:

• proof that the relationship is genuine, and
• proof of income and assets to support their spouse.

There are additional requirements and one of our qualified US immigration lawyers will have the specialized knowledge and experience to provide advice regarding the best way to proceed with the immigrant visa process. 

What else do I need to know about the Green Card?
There are many benefits for Green Card holders some of which include:

• a decreased fee in College and University tuition fees referred to as “in state” tuition or “resident” tuition,
• permission to work for any company located in the US regardless of job function, hours per week etc,
• some jobs require security clearances which only Green Card holders or US citizens can obtain; therefore a Green Card provides more job opportunities,
• Green Card holders can sponsor their spouse and unmarried minor children under the age of 21 for Green Card status, and
• immunity against future changes in Immigration that could have implications on temporary visa holders.

Immigrant visas are applications to become a Legal Permanent Resident (Green Card Holders) in the United States. Many individuals can qualify through U.S. employment sponsorship, their own extraordinary ability, or investment into a U.S. business.

Please contact our office for further information on obtaining immigrant visas through either employment, extraordinary ability or investment.

The US Diversity Immigrant Visa Program (also known as the green card lottery) is operated by a lottery system by the US Department of State to issue up to 55,000 immigrant visas annually under the program during the US fiscal year (October 1 to the following September 30). The goal of the program is to increase the diversity of immigrants to the US by selecting those from countries with low numbers of immigrants to the US within the previous five years.

 Contact us for more information on how to apply for a greencard in the Diversity Lottery System.

I have an Australian Section 10 – No Conviction Recorded, can I travel to the US on an ESTA?
This depends on what the arrest was. It is important to remember that even with a “No Conviction Recorded” finding, this is still considered a conviction for US immigration purposes and must be disclosed on any visa application as well as in some instances on the ESTA registration.

Generally, a drug possession charge or even an admission to drug use will make you inadmissible to the US and you may not be able to the visa waiver program for travel.

If I am inadmissible to the US, does this mean I will never be able to visit the US?
Not necessarily. Depending on what your conviction is for, there may be waivers of inadmissibility available that you can apply for.

If I have No Conviction Recorded, how can US immigration know that I had an arrest?
The US government has extensive networks of security checks. If you lie or misrepresent yourself on a visa application or ESTA application, this is considered fraud and can have a permanent ban on travel to the US.

If you have ever been arrested in Australia or elsewhere, it is best to get the advice from one of our experienced US attorneys. This area of US immigration law is very complex and how you present a previous arrest or conviction may have a serious impact on your future travel to the US.