Presented by Pollak PLLC

How to get a visa to work in the US

Moving to the U.S. is an attractive option for South Africans in search of better opportunities and new beginnings.

However, the legal processes are often overwhelming for those looking to make the move.

Many factors determine what type of visa you can receive under U.S. immigration law.

Here are some of the more common visa options issued to South Africans for immigration through business, employment, family, or investment.

L-1 visa – Business (intracompany work visa)

The L-1 visa is granted to managers, executives, or employees in positions involving specialised knowledge, who are seeking to live in the U.S. to work for a related company in the same capacity.

Many international companies use an L-1 visa to transfer high-level staff to America.

A spouse and children who are minors may be granted L-2 visa status. This allows them to study and work in the United States.

The U.S. Customs and Immigration Service is always particularly scrutinising of L-1A visa applications, making it crucial that a manager is managing another manager who then supervises several employees.

Karen-Lee Pollak, managing attorney at Pollak Immigration, cautions that L-1A applications are increasingly being denied where the company does not have at least 10 employees in South Africa or at the time of renewal in the United States where a new branch is created”.

Learn more about this visa on Pollak’s website at www.pollakimmigration.com/L1-visa.

H-1B visa – Employment (speciality occupation)

The H-1B visa is for foreign workers who work in certain professional positions that require the attainment of a bachelor’s degree or higher as a minimum for entry into the occupation in the United States.

Specialised knowledge, such as over a decade’s work experience, could possibly serve as a substitute for a bachelor’s degree.

USCIS unfortunately does not recognise 3-year bachelor’s degrees as sufficient qualification; however, Pollak PLLC can have your degree and work experience evaluated to be the equivalent of a U.S. degree. USCIS does recognise a South African master’s degree.

There are four requirements for obtaining the H1-B visa:

  • The employee must have a job offer from a U.S. employer.
  • The employer must demonstrate a need for someone with the employee’s qualifications.
  • The prospective employee must have the required degree, or its equivalent, in a subject closely related to the position.
  • The Employer must pay at least the prevailing wage for the position as determined by the department of Labour.

There are always more applications than visas available, so it is a lottery system.  It is important to file this visa on April 1 of the fiscal year as all visas are used up in the first week.

Learn more about this visa on Pollak’s website at www.pollakimmigration.com/H1b-visa.

E2-Temporary Investment visa and E-1 Treaty Trader visa

Unfortunately, these visas are not available to South Africans who only possess a South African passport.

The E visas provide reciprocal benefits to nationals of the U.S. and foreign countries who invest or conduct trade between each other. Foreign nationals can attain visas by conducting trade with the U.S. (E-1 visa) or by overseeing investment in the U.S. (E-2 visa).  The minimum investment should be $100000.00.  This visa is valid for 5 years and can be renewed indefinitely if the business is operating

Qualifying countries include the United Kingdom, Portugal, Germany, Italy, Switzerland, Taiwan, Pakistan, Iran, Japan, and Australia.

Majority ownership or control of the investing or trading company must be held by nationals of the foreign country.

Learn more about these visas on Pollak’s website at www.pollakimmigration.com/E1-visa and www.pollakimmigration.com/e2-visa.

EB-5 visa – Investment (Investment Green Card)

The EB-5 visa, also known as the Investment Green Card, is based on a large investment into the USA.

To qualify, the investment must create additional employment in the U.S., meaning that extensive documents are required.

The Investment Green Card does not require you to manage the daily affairs of the business. You may also invest in an existing or a new business, and more than one person may invest.

You may be a minority owner within whatever business you are investing in.

One of the benefits of this visa is that it lets you live anywhere in the country, regardless of where your investment has been made.

To qualify for an EB-5 visa, you may choose to invest in one of three ways:

  • Invest $1,000,000 in your own business and hire 10 employees anywhere in the USA.
  • Invest $500,000 and hire 10 employees in an area where the unemployment rate exceeds the national average by 150% or the rural population is less than 20,000.
  • Invest $500,000 in a Regional Centre – the money is returned to the investor after 5 years with nominal interest. Like any investment, when investing in a Regional Centre project return of funds is not guaranteed.

US Senators are pitching that the first two above investment requirements be changed to $925,000 and $800,000 respectively.  The Department of Homeland Security, however, would prefer to see these figures reach $1,350,000 and $1,800,000.

In January 2017, the Department of Homeland Security (DHS) proposed to amend its regulations governing the employment-based, fifth preference (EB-5) immigrant investor classification. This rule sought public comment on several proposed changes to the EB-5 program regulations. Such proposed changes included: raising the minimum investment amount; allowing certain EB-5 petitioners to retain their original priority date; changing the designation process for targeted employment areas; and other miscellaneous changes to filing and interview processes.

US Senators are pitching that the first two above investment requirements be changed to $925,000 and $800,000 respectively.  The Department of Homeland Security, however, would prefer to see these figures reach $1,350,000 and $1,800,000.

On February 22, 2019, a final regulation on EB-5 Immigrant Investor Program Modernization was sent to the Office of Management and Budget (OMB) and is currently pending review.  It can take several weeks to several months to complete its review. Once OMB completes its review, the final regulation will be published in the Federal Register. Note that when an agency publishes a final rule, generally the rule is effective no less than thirty days after the date of publication in the Federal Register.

Based on the foregoing, Karen-Lee Pollak believes that increases in the investment amount are imminent and could be effective as early as the next 60 days.

Learn more about this visa on Pollak’s website at www.pollakimmigration.com/Eb5-visa.

EB-3 and EB-2 visa – Green Card through employment

If you have an employer willing to offer you a position in the United States, that Employer can sponsor you for permanent residency (Green Card).

Applications must be made with at least two years of experience as a skilled worker, a bachelor’s degree or higher, or for the EB-2 green card, a bachelor’s degree and 5 years of experience or a master’s Degree or higher.  The employer will have to advertise the position and provide evidence that there were no qualified U.S. workers for the position.

Once the application is approved and a visa becomes available to the applicant, an adjustment of status application is filed with the USCIS if they are in the United States in some other visa status.  Additional documents are also submitted such as a medical report, travel permit request and a work authorisation request.

If the employee is outside the United States, applications are filed with the National Visa Centre and the employee is scheduled for an interview at the U.S. Consulate in South Africa.

Learn more about these visas on Pollak’s website at www.pollakimmigration.com/Eb3-visa and www.pollakimmigration.com/eb2-visa.

Contact Pollak PLLC for expert advice

Karen-Lee Pollak is originally from South Africa, and therefore understands from first-hand personal and business experience the intricacies of uprooting your family to live and work in the United States.

She has also been featured as one of Newsweek’s Leaders in Immigration Law, one of the Top 50 Women Attorneys in Texas and Outstanding Immigration Attorney by the prestigious global Chambers and Partners.  Pollak PLLC was named by Corporate Intl Magazine Legal Award as ‘Immigration Law Firm of the Year in Texas’.

The law firm provides full-service professional counsel and representation to large corporations, small businesses, investors and families, which is built on long-term, valued relationships. With its knowledge of the processes and procedures when working with various government agencies, Pollak PLLC attorneys ensure the best possible outcome for immigration.

Private Consultations in April 2019

Ms. Pollak is offering limited private consultations in Johannesburg and Cape Town in April 2019.  To schedule a private consultation or complimentary phone consultation, please email [email protected].

For more information on Pollak PLLC, visit the Pollak website.

This article was published in partnership with Pollak PLLC.

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How to get a visa to work in the US