Introduction: US Immigration Options for Latin American Talent, Businesses and Investors
The USA has always benefited from an influx of talent, capital and labor from many parts of the world. This is especially true in the case of immigration from Latin America to the USA. A variety of “push-and-pull” factors have historically made this a fact and will continue to do so for the foreseeable future. These factors include ongoing domestic political instability and a lack of economic opportunity in many countries in the Latin American region, combined with still-common perceptions of the USA as the land of opportunity and freedom. A variety of recent developments will likely only increase this trend, from the recent change in government in Peru to continued political and economic problems in Brazil, Venezuela and in Central America.
Moreover, the economic and political fallout of the global COVID-19 pandemic cannot be understated and will accelerate migration to the USA from this region. Latin American, as a whole, suffered a 7% economic contraction in 2020. This economic downturn has increased poverty and income inequality, which in turn has led to more political instability and the election of populist and extremist politicians. Conversely, after an economic downturn in the early stages of the pandemic, the US economy is now on the upswing with a relatively low unemployment rate. Thus, the allure of investing, working in or immigrating to the USA continues to be a powerful incentive for capital, skills and talent from Latin America.
Finally, while US consular operations were impacted by the pandemic and US posts abroad are not yet operating at full capacity, interviews for employment-related non-immigrant and immigrant visas are obtainable. Moreover, the United States Citizenship and Immigration Services (USCIS) continues to process petitions for these types of cases.
Fortunately, there are a number of visa options for both immigrant/lawful permanent resident status ("green cards"), as well as long-term, non-immigrant status for individuals interested in establishing a base in the USA. While this article does not constitute and is not intended as legal advice, it provides an overview of the current state of play of potential employment and investment-based options.
E-1 and E-2 visas
An E visa is an indefinitely renewable, non-immigrant, treaty-based visa. There are two categories of E visa: an E-1 visa, based on trade, and an E-2 visa, based on the investment of capital in the USA.
To qualify for an "E visa classification", an applicant must be a citizen of a country with whom the USA has a Treaty of Commerce. The USA has E visa treaties (either E-1, E-2 or both) with a number of countries in Latin America including Argentina, Bolivia, Chile, Colombia, Costa Rica, Honduras, Mexico, Panama and Paraguay.
Many individuals may be eligible (or potentially eligible) for an E visa and not know it. While they may not be eligible based on the nationality of their country of birth, they may – through ancestry, marriage or investment – be able to acquire the nationality of another country with whom the USA has the required Treaty of Commerce, and thus potentially qualify for an e-visa. Many individuals in Latin America, have European ancestry, and thus may qualify for an Italian, Spanish, or German passport, for example. Many other countries in Europe have the required Treaty of Commerce with the USA that qualifies their nationals for an E visa. Thus, individuals eligible for a European passport or the passport of another E visa country may wish to investigate this option to see if they qualify for an E visa to the USA.
In addition to the nationality of the treaty country, an E visa requires a real and active US commercial enterprise, owned at least 50% by a treaty national.
An E-1 visa must be based on “substantial” trade with the USA, the majority of which is between the USA and the Treaty country. For an E-2 visa, the visa applicant must demonstrate a “substantial” investment in the US enterprise. To be “substantial”, the investment must be proportional to the cost of the business. Thus, the lower the cost of capitalizing the US enterprise, the lower the qualifying investment. To illustrate, the cost of purchasing a small US business, or establishing a service business such as a consulting firm, may be relatively low. Conversely, the cost of a manufacturing business or purchase of a well-known franchise such as a McDonald's will be higher. On the low end, a typical amount invested might be USD200,000 or less (again, depending on the type of business) and go up into the millions, depending on the type of US commercial enterprise. Finally, the investment must be more than marginal – that is, not solely for earning a living.
The E visa is solely for those investors or executive, supervisory or essential employees with the nationality of the E visa-qualified company.
The E visa authorizes the holder to live and work in the USA exclusively for the petitioning employer. The dependent spouse and minor unmarried children under the age of 21 are eligible for E visas. Dependent E visa spouses are eligible for a general employment authorization document.
Finally, the E visa is a “single intent” visa, as it requires the applicant to show an intent to return to their home country once the visa expires. However, this does not preclude the issuance of extensions of the E visa. Typically, a signed statement attesting to the intent to depart the USA when the applicant's status ends is sufficient.
For individuals who do not have or who are unable to obtain the nationality of a country with whom the USA has a Treaty of Commerce and are therefore not eligible for an E visa, another option is the L-1 visa. In contrast to the E visa, individuals from all countries are eligible for an L-1 visa.
The L-1 visa is a non-immigrant visa which allows a foreign organization to transfer a manager, executive or individual with “specialized knowledge" to a US company that is a branch, parent, subsidiary or affiliate of the foreign employer. Additionally, the employee must be able to document employment abroad with the qualifying organization (ie, a branch or office of the multinational organization) for at least one year, full-time, in a management, executive or "specialized knowledge" function, and the petitioning US company must demonstrate that the employee will be working in such a position in the USA. If the employee is a manager or an executive, the visa is referred to as an L-1A visa. Individuals with specialized knowledge are eligible for an L-1B visa. The L-1A visa can be extended for up to seven years. The L-1B visa can be extended for up to five years. As explained below, many L-1A employees are able to obtain a green card in a category reserved for multi-national executives or managers, during their time here in L-1A status.
As with the E visa, the L-1A visa authorizes the employee to live in in the USA and work exclusively for the L-1 employer. Dependent spouses and minor, unmarried children under the age of 21 of L-1 visa holders are issued L-2 visas. L-2 spouses are eligible for a general work permit.
The L-1 visa is a "dual intent" visa. In other words, the visa applicant or visa holder may legally have the intent to temporarily remain in the USA, and at the same time also have the intent to immigrate to the USA and become a lawful permanent resident.
An H-1B visa allows the holder to enter the USAs to work temporarily for a US company. The US position must be in a "specialty occupation," defined as a position requiring theoretical and practical application of a body of highly specialized knowledge. The visa applicant/worker must possess at least a bachelor’s degree or its equivalent, and if required to practice in that field, the appropriate US state license.
As with the E visa, L visa, and all employment-based non-immigrant visas, the H-1B visa allows the employee to work solely for the US sponsoring employer. The duration of stay for the initial H-1B is three years and can be extended to a maximum of six years (with exceptions which are beyond the scope of this article).
In contrast to visas in the L and E categories, the number of H-1B visas issued annually are capped. By law, there is a limit of 65,000 H-1B visas that may be issued per year. An additional 20,000 H-1B visas are available to foreign nationals holding a post-graduate degree from a US academic institution. H-1B non-immigrants who are sponsored by certain universities, nonprofit research facilities associated with universities, and government research facilities, are exempt from the cap.
Like the L-1 visa, the H-1B is a dual intent visa. Thus, an H-1B visa holder may legally have the intent to immigrate to the USA permanently and simultaneously also have the intent to reside here only temporarily. H-1B visa holders may bring their immediate family members as dependents. In certain limited cases, an H-4 spouse may work, for example, when the H-1 primary spouse has an approved immigrant visa petition.
The H1-B1 visa is a variant of the H-1B visa. This visa is reserved for nationals of Chile and Singapore. As in the case of the e-visa, the H1-B1 visa for Chilean nationals is treaty-based and is a creature of the 2003 Chile–United States Free Trade Agreement. Similar to the H-1B visa, the H1-B1 visa has a quota. Essentially, of the 65,000 visas allocated to the capped H-1B visa program, 1,400 are reserved for Chile. However, historically, while unused slots in the H-1B program have all been exhausted in a given fiscal year, the H1-B1 cap has never been reached.
As with the H1-B visa, the position offered by the US employer must be for a specialty occupation, and requires a bachelor’s degree or its equivalent, with the exception of agricultural managers and physical therapists. As with other employment based non-immigrant visas, The H1-B1 visa also allows the foreign national to work exclusively for the US sponsoring employer. Admission on an H1-B1 visa is for a maximum of 18 months and the status can be renewed in yearly increments. In contrast to the H-1B visa, there is no six-year limit. Spouses of H1-B1 status holders are eligible for the H-4 visa but are not eligible for employment authorization.
EB-1C multinational executive or manager visa
The EB-1C immigrant visa category is for individuals who have been employed abroad by a qualifying entity and who are transferred to a US entity in a managerial or executive capacity on a permanent basis. It is the green card version of the L-1A visa – the non-immigrant visa for multi-national executives/managers. Indeed, many individuals who apply for a green card in this category are already legally in the USA in an L-1A status. However, an L-1A visa is not a precondition for an EB-1C immigrant visa filing. So long as the requirements of the EB-1C category are met, an individual who has never previously worked for the US company, or individuals here in other visa statuses who were petitioned for and transferred to the USA by a parent, affiliate or subsidiary of the US company within three years of continuous foreign employment in a management or executive capacity may be eligible for a green card in this category.
To qualify for an EB-1C immigrant visa, the following applies:
Then main advantage of this visa category is that the US employer does not need to show it recruited to fill the executive or manager position and could not locate a US citizen to fill the position. While there is an annual cap on the number of these visas, there is currently no backlog in this category.
EB-1A immigrant visa for individuals with “extraordinary ability”
Individuals who can demonstrate their "extraordinary ability” in the sciences, arts, education, business or athletics, by showing sustained national or international acclaim, are not required to have a permanent offer of employment in the USA. They are eligible to self-petition if they can show they intend to work in the USA in their field of expertise. This visa category, and the EB-2 NIW visa category (see below), are the only two immigrant visa categories where an individual can petition for himself or herself, without a US employer acting as a sponsor or petitioner.
However, the EB-1A requires meeting a very high legal standard. Thus, the petition must establish the foreign national to show that he or she has won a major award, such as a Nobel prize, or meet at least three of ten regulatory criteria, and also show that under the “totality of the circumstances" the applicant is recognized as someone at the very top of their field.
Most EB-1A green card applicants have not won a major international or national award. However, most successful EB-1A green card applicants are able to show that they have won lesser national or international awards, are members of associations demanding outstanding achievement of their members, have either published material demonstrating their important contributions to their fields, and/or had materials published about their work. Many have also judged the work of others, either individually or on a panel, and have authored scholarly articles in professional or major trade publications.
EB-2 immigrant visa with “national interest waiver”
The EB-2 visa is reserved for individuals who have either advanced degrees or can demonstrate “exceptional ability”. Exceptional ability is similar to extraordinary ability, but the requirements are less stringent. In addition, individuals can self-petition in this category if they can demonstrate that they will continue to work in their field of endeavor and if the foreign national’s proposed endeavor will benefit the USA in some way. Thus, while the EB-2 NIW is an employment-based visa, similar to the EB-1A category, it does not require an employer’s sponsorship. As with the EB-1A, the national interest waiver, if approved, does away with the requirement for labor certification from the US Department of Labor.
This visa is available to foreign nationals who have an advanced degree or its foreign equivalent in a professional field. An individual can also meet this educational requirement if he or she has a bachelor’s degree and at least five years of progressive experience in their field.
Immigrant visa based on an approved PERM/labor certification
Program Electronic Review Management System (PERM) labor certification is a method that the U.S. Department of Labor (DOL) uses to ensure that foreign immigrant workers are not taking jobs from US workers that are just as qualified. A foreign national may obtain a green card if a prospective or current US employer obtains a labor certification from the U.S. Department of Labor. This process requires the US employer to submit a prevailing wage request so that the Department of Labor can determine what the prevailing wage should be for the foreign worker. If the green card is issued to the foreign national, the US employer is obligated to pay the foreign national this wage once a green card is issued.
The employer is also required to go through a highly regulated process of recruiting US workers. If a qualified US worker does not apply to a job order via this recruitment process, then the US employer can submit an ETA 9089 PERM application to the DOL. If approved, then the US employer can file an immigrant visa petition with USCIS. Foreign nationals who are in the USA in another lawful status may apply to adjust their status in the USA and obtain a green card directly without visa processing if an immigrant visa is available to them in this category.
The foreign national need not be employed by the US company until after the green card is issued. Many foreign nationals are already here in H-1B or L-1B status while they go through this process. Others are still abroad and may still benefit from an immigrant visa through the PERM process.
EB-5 job creation visa
EB-5 refers to the fifth preference employment-based immigrant visa category under US law. Under this program, investors are eligible to apply for a green card if they make the required capital investment in a commercial enterprise in the USA and create ten permanent full-time jobs for qualified US workers. Congress created the EB-5 program in 1990. In 1992, it created the Immigrant Investor Pilot Program. This program sets aside a certain number of EB-5 visas for participants who invest in commercial enterprises associated with “regional centers” certified by USCIS for the purpose of promoting economic growth. Thus, since 1992, investors have been able to apply for an EB-5 visa either by investing in a regional center project managed by third-party partners, or by directly investing and developing in their own new commercial enterprise and direct job creation project.
The benefit of the Regional Center EB-5 program is to allow indirect job creation through economic models.
The EB-5 program saw two very important, although possibly temporary, changes in June 2021. First, a U.S. District Court invalidated the November 2019 USCIS regulations that increased the minimum investment amount from USD500,000 to USD900,000 in “targeted employment areas” (TEAs) and USD1.8 million in other areas and changing the definition of a TEA. Second, the Regional Center EB-5 program expired on June 30, 2021. There are currently negotiations underway to enact legislation to extend the Regional Center EB-5 program. However, currently USCIS has stopped processing new I-526 Regional Center EB-5 petitions filed after June 30, 2021, pending congressional reauthorization of the Regional Center Program. While the reauthorization is up to Congress and the timing is unknown, there have been previous lapses in the Regional Center program, and it has always been renewed by Congress. Thus, reauthorization is likely.
It is important to note that the direct EB-5 program did not sunset. In other words, direct investment in a new commercial enterprise that creates direct qualifying full-time employment is allowed so long as it is not via a regional center investment. Moreover, as a result of the court case invalidating the 2019 EB-5 regulations, USCIS is now applying the EB-5 regulations with the lower USD500,000 and USD1 million capital investment minimums that were in effect before the rule was finalized on November 21, 2019, to I-526s based on non-regional center investments. Litigation continues and the new administration is attempting to ratify the 2019 regulations. Therefore, there are risks in assuming that the lower amounts of capital investments will be allowed by USCIS, as future developments may invalidate or modify/increase the capital investment requirements. Careful planning and review with counsel is required to ensure compliance with the law at the time of filing.
Currently, the process of obtaining the immigrant visa and the conditional two-year card can take several years, depending on the nationality of the investor. Once conditional residence is obtained, the investor must then obtain approval by USCIS of removal of the conditions on the two-year card. This process starts by filing the I-829 petition and can take several years. Thus, investors should plan on having their capital investment tied up for several years, and must review the project offering documents carefully.
The EB-5 option should be seriously considered only by high net worth individuals who are able to take on the risk inherent in any investment of capital in a commercial enterprise.
Current effect of COVID-19 travel bans on visa issuance
While travel to the USA directly from many countries, including Brazil, is still restricted due to various presidential proclamations related to the COVID-19 pandemic, there are strategies for obtaining visa interviews and visa issuance.
Citizens of Brazil who are beneficiaries of an approved immigrant visa petition, including an employment-based or EB-5 immigrant petition, are exempt from the travel ban. Citizens of Brazil seeking a non-immigrant visa – such as an E visa, an L visa or an H-1B visa – may be eligible for a "national interest exception" (NIE) from the restrictions on entry to the USA from Brazil, if they can show their travel to the USA is to provide support or executive direction for “significant” economic activity in the USA (eg, related to a US commercial enterprise), or if the travel is essential to a US company in a “critical infrastructure” sector of the economy. Alternatively, a visa interview may sometimes be obtained at a US Embassy outside Brazil.
Finally, citizens of every other country in Latin America (apart from Brazil) may interview for a visa at the US Embassy in their own countries as currently there are no travel restrictions on any other country in the region.
Any foreign national interested in any of these visa options should consult with an experienced US immigration attorney.