Estate Planning for Multinationals: Immigration Issues

The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.

I. NONIMMIGRANT VISAS FOR FOREIGN NATIONALS

A. Certain foreign nationals (FN) coming to the US for specific purposes and for a temporary period of time may apply for a “nonimmigrant” visa.

1. The nonimmigrant visa categories are enumerated at 8 U.S.C. § 1101(a)(15).
2. Visas not allowing employment.
   1. B-2 Visitor Visa, F-1 Student Visa (with exceptions), M-1 Vocational Student Visa (with exceptions), and Certain Dependents’ Visas (see “Spouses and Children,” infra).
3. Visas allowing employment.
   1. B-1, E-1, E-2, E-3, H-1B, J-1, L-1, O-1, and P-1.

B. B-2 Visitor Visa (8 U.S.C. §1101(a)(15)(B); 8 C.F.R. § 214.2(b); 9 Foreign Affairs Manual (FAM) 41.31)

1. Designed for tourists, the B-2 visa is for persons visiting the US for pleasure. Not employment authorized.
2. Maximum admission is one year; minimum admission is for six months regardless of less time requested; extensions can be obtained in six-month increments.

C. Visa Waiver Program (VWP) (8 U.S.C. § 1187; 8 C.F.R. § 217)

1. The VWP waives the visa requirement for persons from certain countries with which the US has agreements to reciprocally waive visas. (See http://travel.state.gov/visa/temp/without/without_1990.html#countries.)
2. Allows tourists who otherwise would have to obtain B-1 or B-2 visas to enter the US for no more than 90 days in WB status.
3. FNs who enter under VWP are not eligible for change, extension, or adjustment of status (exception: adjustment can be granted on basis of immediate relative petition).

D. F-1 Visa for Academic Students (8 U.S.C. §1101(a)(15)(F); 8 C.F.R.
§ 214.2(f))

1. The F-1 allows individuals to engage in full-time academic study in a program at an approved US institution.
2. Pursuant to Optional or Curricular Practical Training, an F-1 student may work, but for experience and not as a means of support.
3. F-1 students are admitted to the US for a time period known as “duration of status”—the length of time necessary to complete a given academic program.

E. M-1 Visa for Vocational Students (8 U.S.C. §1101(a)(15)(M); 8 C.F.R.
§ 214.2(m))

1. M-1 status is similar to F-1 status, but is for FNs engaging in full-time programs at community/junior college, vocational school, or other recognized nonacademic institutions.
2. M-1s may work in Practical Training (up to six months) after the completion of their programs.
3. M-1s are admitted for time required to complete course or one year, whichever is less. Extensions are available for up to three years.

F. B-1 Visa for Business Visitors (8 U.S.C. § 1101(a)(15)(B); 8 C.F.R.
§ 214.2(b)(1); 9 FAM 41.31)

1. Short-term visa for very temporary stays in the US; advantageous if executive needs a visa where speed is of the essence.
   1. Business meetings or trade shows.
   2. Conducting research (e.g., feasibility of US operations; investigating investment opportunities).
   3. Creating an E enterprise (but not run day-to-day business unless and until on E visa).
   4. Buying goods, negotiating contracts, litigating, etc.
2. Employee must continue to be employed and paid by company abroad while the employee is in the US.
   1. FN must not conduct gainful employment in the US; i.e., the value of his or her work must accrue to the foreign employer.
3. Admission, though technically for up to one year, is usually for six months or less time.

G. E Visas for Treaty Traders and Treaty Investors (8 U.S.C. § 1101(a)(15)(E); 8 C.F.R. § 214.2(e); 22 C.F.R. § 41.51; 9 FAM 41.51)

1. E-1 and E-2 visas permit FN businesspeople from countries with reciprocal treaties to direct and develop business in the US; treaty countries are listed on the DOS website (www.travel.state.gov).
2. To be eligible, a treaty between the country of the FN’s citizenship (not necessarily birth) and the US must exist.
3. E-1 Visa: Treaty Trader.
   1. Option for companies engaged in “substantial” trade, a majority of which is between the US and the country of nationality of at least 50% of the owners.
   2. Trade in services, such as banking, communications, transportation, and insurance is permissible; be prepared to present audits of international transactions, etc.
4. E-2 Visa: Treaty Investor.
   1. Option for companies that have invested a substantial amount of capital in US operations or who are in the process of investing such capital.
5. E-1 and E-2 positions must be executive or supervisory in nature.
6. E visas may be issued for up to five years; however, admission is granted for two years at a time.
   1. Extensions are available indefinitely.

H. H-1B Visa for Professionals and Specialists (8 U.S.C. § 101(a)(15)(H);
8 C.F.R. §214.2(h))

1. Employer-sponsored visa for hiring FNs to be temporarily employed in the US in a position that is a professional or specialty occupation.
2. H-1B admission initially can be for a maximum of three years.
   1. A three-year extension is granted frequently.
   2. If FN has commenced lawful permanent residence process one year previously, extensions in one-year increments will be granted beyond normal six year maximum.

I. J-1 Visa for Exchange Visitors (8 U.S.C. § 1101(a)(15)(J); 8 C.F.R.
§ 214.2(j))

1. Available to individuals coming to the US pursuant to a variety of pre-approved (by the State Department) exchange programs.
2. Can include professors, physicians, researchers, specialists, au pairs, camp counselors, etc.
3. Some J-1s are subject to a two-year return requirement to their foreign residence if the skill they have is needed in the home country; if the program was funded in whole or part by the foreign government or the US; or if the individual received foreign graduate medical training.
   1. Waivers of the two-year return requirement are sometimes available. (8 U.S.C. § 1182(e)).

J. L-1 Visa for Transferring and Hiring Executives, Managers, and “Specialized Knowledge Employees” (8 U.S.C. § 1101(a)(15)(L); 8 C.F.R. § 214.2(l))

1. L-1 visa allows multinational companies (including nonprofit and religious organizations) with parents, subsidiaries, affiliates, or branch offices in the US to petition to transfer executives, managers, and specialized knowledge employees to the US.
   1. Executive is defined at 8 C.F.R. § 214.2(l)(1)(ii)(C).
   2. Manager is defined at 8 C.F.R. § 214.2(l)(1)(ii)(B).
   3. Specialized knowledge employee is defined at 8 C.F.R.
   4. § 214.2(l)(1)(ii)(D) (“special knowledge . . . 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”).
2. Qualifying organization: The petitioner (foreign- or American-owned) must have offices in the US and at least one other country; a qualifying organization can be the same company or a parent, subsidiary, or affiliate of that company doing business.
3. Admission is initially for three years.
   1. Executives and managers may be entitled to two separate two-year extensions.
   2. Specialized knowledge employees may be entitled to ONE two-year extension.
   3. Caveat: In the case of a start-up business or a company doing business for less than one year in the US, the initial approval is limited to one year.
4. Blanket L-1 visa petitions. Certain large multinational companies may qualify for approval of Blanket L-1 visa petitions, which enables the petitioner to bypass USCIS approval for each beneficiary; instead, the petition is filed directly with the consulate.
   1. USCIS initially approves the blanket for the company if it meets the following requirements:
      1. Petitioner has office that has been doing business in US for at least one year;
      2. Each entity in petition must be engaged in commercial trade or services; and
      3. Petitioner has at least three domestic and foreign branches, subsidiaries, or affiliates, and combined have $25 million of annual sales, U.S. workforce of 1000 or more, OR approval of at least 10 L petitions over prior twelve months.

K. O-1 Visa for Persons of Extraordinary Ability (8 U.S.C. § 1101(a)(15)(O); 8 C.F.R. § 214.2(o))

1. O-1A visas are available for persons of extraordinary ability in business, science, art, education, or athletics, defined as “one of the small percentage who have risen to the top of the field of endeavor.”
2. O-1B visas are for individuals in motion picture /TV production who have demonstrated extraordinary achievement.
3. Admission is for up to three years with indefinite one-year extensions.

L. P-1 Visas for Athletes and Entertainers (8 U.S.C. § 1101(a)(15)(P); 8 C.F.R.
§ 214.2(p))

1. P-1As—for individually recognized (internationally) athletes or those part of a team that has achieved recognition. Admission for five years with one extension of five years available.
2. P-1Bs—for persons who perform with or are essential part of an entertainment group recognized internationally as outstanding. Admission for five years with one extension of five years available.
3. P-2s are for persons coming as part of a group pursuant to a reciprocal exchange program. P-3s are for entertainers and artists coming to partake in a culturally unique program. Admission is for one year maximum with one-year extensions available.

M. Country-specific Visas

1. Trade NAFTA visa.
   1. TN-1 visas are admissions directly at the port of entry for Canadian and Mexican citizens coming to the US to temporarily perform predetermined professional occupations as listed in NAFTA.
2. H-1B1 visas for nationals of Singapore and Chile.
   1. Standards are exactly like H-1B; 1400 and 5400 H-1B visas for nationals of Chile and Singapore, respectively, are reserved from the current (65,000) cap and guaranteed pursuant to free trade agreements. (INA §§ 101(a)(15)(H)(1)(b1) and 214(g)(8)).
   2. Admission is for one year; extensions granted in one-year increments.
3. E-3 visas for Australians (INA §§ 101(a)(15)(E)(iii) and 214(g)(11), 22 C.F.R. § 41.51(c)(1)).
   1. E-3 visas are for Australians coming to the US to work in “specialty occupations”; very similar to the H-1B. 10,500 visas are allocated to this category per fiscal year.
   2. Admission is for amount of time requested on the labor condition application (LCA), with extensions available up to maximum time on LCA.

II. LAWFUL PERMANENT RESIDENCE

A. Permanent residence is a procedure by which foreign nationals may come to the US to remain on a permanent basis. (8 U.S.C. § §1153–54).

1. Lawful permanent residents (LPRs) become green card holders and receive:
   1. The ability to reside in the US permanently.
   2. Employment in the US for any employer of FN’s qualification and choosing.
   3. Protection by all of the laws of the US, FN’s state of residence and local jurisdictions.
   4. Voting in local elections where US Citizenship is not required.
2. There is no expiration for LPR status; the green card itself expires every 10 years, but it simply needs to be renewed and is not reflective of status (like a driver’s license).

B. Quotas: Most applicants for permanent residency must fit within strict quota requirements on the number of persons who may be granted status under a given category each year. Employment-based immigration quotas are limited to 140,000 visas each year, divided among five preferences; family-based immigration quotas are set at 480,000, divided among immediate relatives and four other preferences.

C. Employment-based Permanent Residence (8 U.S.C. § 1153(b); 8 C.F.R.
§§ 204.5 and 204.6)

1. EB-1 Preference Category: Priority Workers (three types)
   1. EB-1-1: Aliens of extraordinary ability. Can be either employer- or self-sponsored.
   2. EB-1-2: Outstanding researchers. Employer-sponsored.
   3. EB-1-3: Certain multinational executives and managers. Employer-sponsored.
2. EB-2: Members of Professions Holding Advanced Degrees or Aliens or Exceptional Ability.
3. EB-3: Skilled Workers, Professionals and Other Workers.
4. EB-4: Special Immigrants (includes permanent religious workers).
5. EB-5: Investors (employment-creation); individuals who invest $500,000 (targeted employment areas) or $1 million into the US economy AND create 10 jobs for US workers.

D. Family-based Permanent Residence (8 U.S.C. § 1153(a); 8 C.F.R. § 204.2)

1. Immediate Relatives: spouses, parents, and children of US citizens.
   1. Children are unmarried persons under 21 years of age.
   2. A child may only petition for a parent when the child reaches the age of 21.
2. First preference: Unmarried sons and daughters (children over age 21) of US citizens.
3. Second preference: Spouses and children of LPRs (2A); unmarried sons and daughters of LPRs (2B).
4. Third preference: Married sons and daughters of US citizens.
5. Fourth preference: siblings of US citizens.

E. Abandonment of Lawful Permanent Residence

1. Voluntary abandonment.
   1. Relinquishment of LPR status via Form I-407; individual may obtain LPR status again at future date.
2. Loss of LPR status by travel.
   1. Visits abroad are acceptable if temporary and the LPR presents a green card for readmission. If the absence is greater than one year, U.S. Customs and Border Protection (CBP) will claim that the LPR abandoned his or her permanent resident status. (8 C.F.R. § 211.1(a)(2))
   2. Merely returning to US once a year for a short duration does not “automatically revalidate” a green card when LPR is residing abroad; CBP may deem LPR status abandoned.
3. Re-entry implications of long-term travel.
   1. Re-entry Permit
      1. Re-entry permits are important and advantageous for LPRs who will travel outside the US for more than six months at a time, and critical if they travel more than one year at a time. They are important for maintaining permanent resident status.
         1. If the absence from the US is greater than one year, the re-entry permit does not automatically prevent CBP from determining that permanent residence was abandoned and denying admission; rather, it prevents CBP from relying on the duration of the absence as a basis.
      2. FNs must apply for the re-entry permit while in the US prior to departure, though the decision on the application need not be made prior to departure.
      3. Re-entry permits are valid for two years.
         1. Note: They are NOT renewable.
         2. However, LPR may return to US and then apply for another two-year re-entry permit. Further re-entry permits are limited to one year.
         3. If absence from US will be longer than the two years, LPR may apply for a special immigrant visa, which can be obtained at consulate abroad (DS-117). LPR must prove that protracted absence was beyond his or her control.
            1. This carries the risk that if denied after LPR has already been absent longer than the two years, LPR may not re-enter the US.

III. NATURALIZATION

A. Naturalization requirements.

1. Individual must be an LPR.
2. Must be at least 18 years old.
3. The LPR must maintain a continuous residence for five years (three if married to and living with US citizen) after receiving LPR status and physical presence for 50% of the required period of continuous residence.
4. An applicant for naturalization also must reside in (but not be physically present in) the state in which the application is filed for at least three months.
5. Person of good moral character for the requisite five years.
6. Minimal knowledge of English and history/civics of US; attached to the principles of the Constitution and good order of the US.

B. Timing and procedure.

1. Apply on Form N-400 (along with two photos, green card copy, and other documentation) to USCIS.
   1. Applications may be filed up to three months prior to fulfillment of continuous residence requirement.
   2. Biometrics will be taken separately when requested.
   3. Applicant will have a naturalization interview conducted by a USCIS officer.
2. Applicant must reside in US from time of application filing until time of admission to citizenship.
3. Applicant must not be absent from US for more than one year (continuous period) during time continuous residence is required.
   1. Form N-470: Maintains continuous residence for naturalization purposes if LPR will have extensive absences.
   2. Thorough documentation of physical presence (50% of required continuous presence), including travel itineraries, airline records, and passport stamps to show entries and exits.
4. Oath: After approval, the applicant will have an oath ceremony set at the immigration court.

C. Impact on other citizenships.

1. The US does not require that an FN who naturalizes relinquish any and all other citizenships; that is, dual nationality is accepted by the US.
2. However, other countries may strip the individual of the original nationality upon taking citizenship in the US.
   1. See www.opm.gov/extra/investigate/IS-01.pdf for those countries that support or do not permit dual citizenship.

IV. EXPATRIATION

A. Acts of Expatriation

1. Individuals may relinquish US citizenship in six ways under 8 U.S.C. § 1481.
   1. Naturalizing in a foreign state: rejected by courts as not voluntary relinquishment.
   2. Oaths to another state: also rejected by courts as not voluntary relinquishment.
   3. Serving in armed forces of a state engaged in hostilities against US.
   4. Accepting employment with a foreign government where one has the nationality of that government: rejected by courts as not voluntary relinquishment.
   5. Formally renouncing citizenship before a US consular officer outside the US by signing an oath of renunciation, or formally renouncing citizenship within US before the Attorney General in a time of war.
   6. Conviction of treason.

B. Intent to Relinquish Citizenship

1. US government has burden of proving that renunciation was done voluntarily, knowingly, and with full knowledge of the consequences.
2. Must have determination by State Department that citizenship was voluntarily relinquished. (8 U.S.C. § 1501)
3. Person committing expatriating act is presumed to retain citizenship unless conduct “is so inconsistent with obligations of the United States as to compel the conclusion that the intent to relinquish was present. . . .” (Matter of CMS, Dec. No. 90-12 (Board of Appellate Review July 5, 1990) and 22 C.F.R. § 50.40(a)–(b)).

C. Immigration Implications

1. Relinquishment of US citizenship could result in statelessness.
   1. Statelessness could deny the individual the lack of protection of any government.
   2. It also could deny the individual a passport, which would make him or her ineligible to enter the United States.
2. Need for visa.
   1. Any future visit to the US would require a visa (or admission under the VWP) pursuant to the State Department.
      1. Note, the Board of Immigration Appeals has held that loss of citizenship does not automatically result in loss of LPR status. Matter of Vielma-Ortiz, 11 I&N Dec. 415 (BIA 1965).
   2. If individual is ineligible for a visa, he or she could be permanently barred from ever entering the US.

V. SPOUSES AND CHILDREN

A. Spouses and children of B-1 and B-2 visa holders are not entitled to any derivative status.

B. Spouses of E-1, E-2, and E-3 visa holders can be issued dependent visas for the same length of time as the principal.

1. Spouses and children may obtain work authorization by filing Form I-765 with a copy of I-94, proof of principal’s status (his or her I-94), marriage certificate, photos, and filing fee.

C. Spouses and children of F-1s (F-2s) and M-1s may not work or attend school (unless a child is attending primary or secondary school).

D. Spouses and children of H-1B and H-1B1 visa holders can be issued dependent visas, the H-4, for the same length of time as the principal.

1. H-4 visa holders may not work.

E. Spouses and children of J-1 visa holders can be issued J-2 visas.

1. J-2s may obtain work authorization.

F. Spouses of L-1 visa holders can be issued dependent visas, the L-2, for the same length of time as the principal (note that L-2 derivates of L-1As have seven years maximum, where L-2 derivatives of L-1Bs have five years maximum).

1. L-2s may obtain work authorization.

G. Spouses and children of O-1 visa holders can be issued dependent visas, the O-3, for the same length of time as the principal.

1. O-3 visa holders may not work.

H. Spouses and children of P nonimmigrants are in P-4 status; they may not work.

I. Spouses and children of TN visa holders may be admitted in TD status; they may not apply for work authorization.

J. Spouses of LPR applicants receive derivative beneficiary status. Like the primary applicant, a spouse with a pending adjustment of status application may apply for work authorization and advance parole.