[ESTABLISHING A BUSINESS ENTITY IN THE UNITED STATES] 534
Department of Labor that qualified U.S. workers are not available in the position. Historically, long wait times ranging from 5-10 years exist for EB-3 visas, especially for foreign nationals from Mexico, India, and China. However, as a result of the pandemic and limited usage of available family- based immigrant visas at consulates, which were added to the employment- based pool of available immigrant visas, there was significant advancement in wait times across all categories, particularly benefitting Indian and Chinese nationals, which trend is forecasted to continue in 2021. EB-5 visas are for immigrant investors who engage in new commercial enterprises that invest at least $1,000,000 in capital ($500,000 in high-unemployment or rural areas) and create full-time jobs for at least 10 U.S. citizens. There are additional types of immigration statuses that authorize employment in the United States. Whether a foreign national qualifies generally is dependent on the type of work being performed, his or her qualifications, the type of employer, and in certain instances, his or her nationality. Careful consultation with legal counsel experienced in business immigration matters is recommended for any company that is considering employing foreign nationals in the U.S., especially in light of the Covid-19 emergency given the fluid and evolving nature of travel restrictions, proclamations and limited consular operations. Furthermore, starting October 1, 2021, green card applicants will be required to establish that they have received a complete Covid-19 vaccination series as part of the mandatory panel physician medical exam in order to be deemed eligible for permanent residence, according to the Centers for Disease Control
• International Entrepreneur Rule (IER). In May 2021, the Department of Homeland Security (DHS) announced the International Entrepreneur Rule (IER), which permits the DHS to use parole authority to grant a period of authorized stay, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion. Entrepreneurs granted parole will be eligible to work only for their start-up business, and for up to five years of authorization with an initial parole for up to two and half years.
Permanent
• Employment Immigrant Visas/Statuses (EB-1, EB-2, EB-3, EB-5). The U.S. State Department issues approximately 140,000 employment-based immigrant visas (otherwise known as green cards) each year. Top priority (EB-1) goes to persons with “extraordinary ability” (international recognition in their fields) and multinational executives with an overseas affiliate, parent, subsidiary, or branch of a U.S. employer. EB-2 visas are issued to foreign nationals who fill positions in the national interest that require the skills of someone with an advanced degree, or to those who possess exceptional ability in their field (although the latter category of EB-2 visas also requires certification from the Department of Labor that qualified U.S. workers are not interested in the position). Third priority goes to EB-3 visa applicants, who are skilled professionals or other workers, and must provide certification from the
ILN Corporate Group – Establishing a Business Entity Series
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