The company must possess nationality from a country that the U.S. maintains a treaty of commerce and navigation with (treaty country). This means at least 50 percent of the company must be owned by people with nationality from the treaty country. The company must also carry on substantial trade, trade that is sizable and a continuous volume, and trade that constitutes a meaningful exchange of goods, services, or technology between the U.S. and the treaty country. This trade must be principally between the U.S. and the treaty country. In order to satisfy these requirements, the company must submit documentation of ownership (e.g.: registrar), passports of the owners of the company, evidence of a substantial flow of goods or services (e.g.: invoices, bank records, bills of shipment, catalogs, and accounts receivable ledgers), and the company’s most recent tax return.

Like the company, the employee must also possess nationality from a treaty country, the same country where the company is registered. The employee must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the successful and efficient operation of the company. In addition to the employee’s position at work, the employee must also be able to demonstrate that he/she intends to leave the U.S. when his/her job is finished and the E-1 status expires. The employee can prove this intent by submitting documents such as proof of ownership of a home or apartment, bank statement, and letters from friends and family about the employee’s ties to his/her home country. The employee can apply for his/her spouse to accompany him/her, and the employee can also apply for his/her children, provided that the children are unmarried and under 21 years old. One of the advantages of the E-1 visa is that it does not require prior work for the foreign employer who is sending that employee to work in the U.S.

Although the company and employee have different documents to submit, the documents are submitted together as one E-1 application. If the company already has received its E-1 status, then the application is much shorter because the focus is on the employee’s application only. After the embassy reviews the application, the employee attends an interview. If the company and employee fulfill the requirements, the E-1 visa is granted, and the employee is able to move to the U.S. and work for the company. The E-1 visa is valid for two years, and may be renewed as long as the employee still fulfills the requirements of the E-1 visa.

Because the E-1 application can be quite complicated and requires substantial documentation, we highly recommend that anyone interested in an E-1 visa contact an immigration attorney.

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.

This freedom of work movement is a huge advantage of the EAD when compared to a work visa.  For example, if a foreigner holding a work visa is fired or quits his or her job, then such foreigner would need to apply for another work visa in the US and be approved for it prior to legally start working for another company in the US.  However, if a holder of an EAD is fired or quits his or her job, then such foreigner can immediately apply for a new job and start working immediately without any prior US Government approval.

So the question then becomes who is eligible for an EAD?  Somewhat surprisingly, the list is actually quite long, and the typical recipients are the following: spouses of those who hold certain work visas, foreign students that just finished their Bachelor’s or Master’s Degree in the US, approved refugees or asylum seekers currently located in the US, and, as of 2013, certain illegal immigrants that have been living in the US for many years, and more.

However, one very surprising aspect of the EAD is that it is not available to the spouses of those who hold an H-1B work visa.  The reason that this is surprising is because H-1B status is the most popular work visa in the United States.  Nonetheless, if a foreigner is approved for an H-1B work visa, and then the foreigner’s spouse accompanies him or her to the US, such spouse is not eligible for an EAD (even though the H-1B can be valid for 6 years or even more).  In such a case, if the spouse wishes to work in the US, then a separate work visa will need to be approved for the spouse, which is quite difficult.

Hiring a good immigration attorney will ensure that your potential EAD options are exhausted prior to applying for any type of work visa, as the EAD provides benefits which do not exist for any other work visa (as explained above).   The importance of checking one’s eligibility for EAD status cannot be overstated.

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.

Per USCIS, all EB-5 investors must invest in a new commercial enterprise, which is a commercial enterprise:

–          Established after Nov. 29, 1990, or

–     Established on or before Nov. 29, 1990, that is:

1)  Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or

2) Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs

Commercial enterprise means any for-profit activity formed for the ongoing conduct of lawful business including, but not limited to:

–          A sole proprietorship

–          Partnership (whether limited or general)

–          Holding company

–          Joint venture

–          Corporation

–          Business trust or other entity, which may be publicly or privately owned

In addition to the above, there are also specific job creation requirements. The EB-5 investor must:

–          Create or preserve at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.

–          Create or preserve either direct or indirect jobs:

Direct jobs are actual identifiable jobs for qualified employees located within the commercial enterprise into which the EB-5 investor has directly invested his or her capital. Indirect jobs are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation if affiliated with a regional center.

Finally, in addition to the above, there are also other restrictions on what types of businesses that qualify for EB-5 investment, as well as capital investment requirements. Since this is a very complex process, it is recommended that you consult an attorney if you are a foreign national seeking to make a major investment in the US.

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.

In 2010, the Israeli government announced that they were increasing enforcement upon employers who illegally hire foreign workers and/or foreign experts. Based on these enforcement operations, a monthly report entitled “Foreign Nationals in Israel Report” is published by the National Immigration Authority (Hereinafter: “NIA”). The report presents statistical data concerning the main issues of foreigners in Israel. ¹ An interesting figure appearing in this report shows that the total amount of fines imposed on employers of foreign workers during the small window of January-April 2011 was 7,467,000 NIS!! According to the data of the report, this figure increases by 1 Million NIS each month.

The answer to the question what is the cost of employing a foreign expert depends on the legality of the employment. The expected cost of employing illegal foreign experts is very different from the expected cost of employing legal foreign experts. We shall point out the various expenses involved in legal employment[1] and in illegal employment, (assuming the employer was caught by the authorities while hiring the illegal foreign worker or a foreign expert without valid permit). We wish to emphasize that in discussing these scenarios, we are definitely not recommending, in any form whatsoever, illegal employment of foreign experts. In this essay, employment of illegal foreign experts is not economically efficient (if any), because the alternative cost, i.e. legal employment, is not as high as presumably.

Costs of Legally Employing a Foreign Expert

While examining the issue of foreign experts’ employment in Israel (July 2001), the “Buchris committee,” a government committee, established that the fee of a foreign expert should be at least double the average salary in Israel. The average salary in Israel as of March 2011 was approximately 8,996 NIS (gross), including all customary social benefits. This salary condition is a preliminary condition to define a foreign expert’s status in Israel.

Foreign Expert Regulations (exemptions for foreign expert employers) 2007 (hereinafter: “Exempt Regulations for Foreign Expert Employers”) determined that certain law articles of the Foreign Workers Act do not apply to employers hiring foreign experts (in contradiction to non-expert foreign workers). These articles relate to the employer’s obligation of holding foreign worker’s documents at his working place, the obligation to include certain details in the employment agreement (in accordance with Item 1C of the law), and the obligation to provide proper housing accommodation (in accordance with the amounts specified in item 1E of the law). However, there are also obligations resulting from Israeli labor laws that apply to all employers engaging foreign experts in Israel, including foreign experts employed in Israel. For example, employers cannot refuse the signing of a valid employment agreement, employers must provide medical insurance and keep all Israeli labor law terms, while employing a foreign expert in Israel.

“Exempts for Foreign Experts Employers’ Regulations” also state that the employer of a foreign expert is exempt from the Yearly Employer’s Government Fee (the government fee for 2011 is 9,060 NIS). Yet, various cases show that this exemption is limited.

Foreign experts’ costs include their gross salary, social security fee, health insurance (which applies to the employer), accompanying expenses (social-pension payments, firing compensation and vacation payments), and additional various fees and payments to authorities which applies to the employer, as hereby detailed. The sum of all these government fees and taxes increases each year.

As of 2011, the yearly government fees for foreign experts are as follows:

1. Work permit application – 1,140 NIS;
2. Yearly Employer Fee – 9,060 NIS (this government fee can be waived in special circumstances);
3. Issuance of B-1 work visa – 170 NIS;
4. Issuance multiple entry visa – 170 NIS.

The sum of these fees is 10,540 NIS, which represents the total annual government fees for a single foreign expert who arrives to Israel without additional family members.

The total sum does not include employer’s costs such as paying twice the average Israeli salary, social benefits, health insurance, accommodation, and flight expenses.

Legal Deductions – according to Israeli foreign workers regulations, the monthly permitted deductions rate for health insurance, appropriate accommodation, expenses and debt to employer (i.e., flights expenses, food) cannot go above 25% of the employee’s salary. Therefore, employing foreign experts legally can only result in reduced expenses.

Costs of Illegally Employing a Foreign Expert (Assuming the employer is caught employing the illegal Expert)

Illegally employing a foreign worker (including a foreign expert) is punishable by administrative fine of 5,000 NIS (for organizations that are not Human Resources sub-contractors and/or private chambers) or more. Furthermore, there are other offenses which carry additional fines should a law violation repeat itself or in cases the violation involve severe circumstances, such as violate foreign worker’s rights, or hiring many foreign workers without permits. In such cases, instead of an administrative fine, the employer will be criminally charged and potentially face up to one year imprisonment or up to 104,000 NIS in penalties. The maximum penalty amount for all Foreign Workers Laws violations can reach up to 116,800 NIS plus one year imprisonment.

The Israeli government established its overall immigration policy concerning foreign workers in January 2010, with special emphasis on the following:

• Increased enforcement on illegal employment of foreign workers;
• Reducing the numbers and deportation of illegal workers and/or illegal immigrants;
• Reduced benefits for foreign workers importation;
• Handling the collection of illegal fees;
• Imposing taxation restrictions on employers who illegally hire foreign workers;
• Increasing public awareness of the illegal foreign workers phenomenon in Israel and act for creating preference of local labor.

Following this government policy, during 2010, the NIA announced severe punishment measures against Israelis: private organizations and companies who illegally hire workers or foreign experts. The campaign was launched using frequent public announcements of these activities and explaining the damage involved by illegally employing foreign workers. Alongside this enforcement campaign, many raids of restaurants, private houses and high-tech companies took place and many legal charges were filed.

In addition, it was also decided to issue taxation sanctions as well. Therefore, starting in 2010, bookkeeping in relation to the employer’s expenses resulting from hiring illegal workers will be refused, and any employer who will be found illegally employing foreign workers will be subject to more strict and frequent bookkeeping taxation check-ups. This strict monitoring will be enforced in order to ensure that the employment of foreign workers did not involve any tax violations.

Another element to be taken into account is the lack of insurance coverage. In the absence of a valid work visa, if an accident occurs, both the employer and worker shall not receive compensation or refund for the expenses resulting from the work accident.

Under the policy of increased enforcement on the employers of illegal foreign workers, in January 2010, a bill was filed on behalf of the government, entitled: “(Amendment No. 14) foreign workers bill (illegal employment – increased enforcement), 2010” (hereinafter: “Increased Enforcement bill”). This bill, submitted by the Inter-disciplinary Committee for Foreign Workers issues, is mainly aimed at deterring and discouraging illegal employment of foreign workers. The bill proposes to cancel the administrative offenses over certain articles of the law and, instead, to file automatic charges in accordance with article 2(a) of the foreign workers law. This will result in an automatic criminal offence indictment along with a minimal penalty of 10,000 NIS for a private employer (not a company) and 25,000 NIS for a company, per each illegally employed worker. Under this new law, the chance that an employer will be criminally charged is almost certain, even if the parties will eventually reach a settlement. It is suggested that in case this violation will repeat itself, the fine will be doubled. In addition, all legal foreign worker permits of an employer will be cancelled if it is discovered that the employer illegally hired foreign workers. The Increased Enforcement bill also considers Article 5 of the Foreign Workers Act (in reference to the issue of company’s position-holder liability), for which it was suggested that the maximum fine shall be increased.

Comparison

The following table summarizes the above:

Legal engagement of a foreign expert in Israel clearly involves various expenses, and yet the fines and criminal consequences of illegally hiring a foreign expert, especially in view of Israeli law enforcement policy, might result in higher expenses than legally hiring a foreign expert. As shown in this article, it is clearly evident that illegally hiring a foreign expert simply does not pay off.

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada and Australia.

[1] Clearly there are additional costs beyond those of this article, but the significant ones are included in this article. In addition, it is clear to the authors that the assumption of the employer being caught with his offense is only a hypothesis for discussion.

[2] Assuming that in both situations described above, the foreign expert is paid the same.

The H-1B visa is the most common temporary working visa available.  It requires a U.S. employer sponsoring the foreign national for a specialty occupation, that is, an occupation requiring at least a U.S. Bachelor’s degree or foreign equivalent degree, to perform the job demands.  There are three steps in obtaining H-1B visa status: (1) a Labor Condition Application (LCA) filed with the U.S. Department of Labor; (2) an H-1B visa petition that will be filed with the U.S. Citizenship & Immigration Services; and (3) in some cases, an H-1B visa application that requires the employee to appear in person at a U.S. consulate outside the U.S.  There is an annual limit or “cap” on the number of new foreign workers who can be granted the H-1B visa status (the current cap is 65,000).  The annual limit does not apply when: (1) people who already have H-1B visa status and are seeking an extension of stay or a visa to allow them travelling; (2) people who already have H-1B visa status, seeking to change employers; (3) physicians seeking H-1B visa status for working in a medically underserved area; and (4) people seeking to work for an institution of higher education or a related nonprofit entity, a nonprofit research organization, or a government research organization.  H-1B visa status is initially granted for a period of three years.  It can be extended for additional three years and up to a total period of six years.  Extensions of H-1B visa status beyond six years may be granted to employees who remain outside the U.S. for more than one year or who have spent less than half of their time in the U.S.  Extensions beyond six years are also available for employees that have applied for permanent resident status before the end of their fifth year under H-1B visa status.  The spouse and unmarried minor children (under 21) of an H-1B worker are admitted under H-4 visa status for the same duration of stay as the H-1B worker, but are not allowed working in the U.S.

L-1 Visa (Intra-company Transferees)

L-1 visa status is available to those individuals who have continuously worked for a company abroad for at least one year within the three years prior to applying for L-1 visa status, and in managerial or executive positions (L-1A), or in a position which requires highly specialized knowledge of company’s business (L-1B), and who will be working in the U.S. for the same company, or a U.S. subsidiary, affiliate or parent of the foreign employer.  Usually, the U.S. company must sponsor the foreign worker by filing an L-1 visa petition to the U.S. Citizenship & Immigration Services (USCIS) and obtain USCIS approval before the employee obtains an L-1 visa at a U.S. consulate abroad or change to L-1 visa status from another status.  The maximum initial duration of L-1 visa status is three years, or one year if the sponsoring company in the U.S. has been doing business in the U.S. for less than one year at the time of filing this visa application.  L-1 visa status can be extended for a maximum of five years when dealing with specialized knowledge employees (L-1B) or seven years for managers and executives (L-1A).  The spouse and minor children (under 21 years of age) of an L-1 worker are admitted in L-2 status for the same duration of stay as the L-1 worker.  A spouse under L-2 visa may obtain work authorization in the U.S., but children in L-2 visa status are not authorized to work.

E-1 Visa (Treaty Investor)

The E-1 visa allows executives, managers, and other workers, with highly specialized skills, to enter U.S.A. for handling investments in the U.S. The company in the States and the foreign person must have the same nationality.  For example, a French citizen can only obtain an E-1 visa if he or she shall work for an at least 50% French owned company in the U.S., and France is one of the countries that share the required treaty that allows E-1 visas with the U.S.A.  To qualify for an E-1 visa, a citizen from a treaty country must be engaged in a substantial volume of trade, principally (at least 51%) between the U.S. and the treaty country.  “Trade” is defined as including the sale of goods and services, i.e. transportation, banking, advertising, accounting, technology and management consulting.  E-1 visa holders are granted visas valid for five years that can be renewed indefinitely.  Spouse and children of an E-1 visa holder are granted derivative E visa status.  A spouse of an E-1 visa holder may apply for working permit in the U.S., but his children are not authorized to work.

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.

As a result of this global transformation, there are now many entrepreneurs who wish to utilize their new business venture to obtain a United States work visa.  And while the internet itself may not have any problems crossing borders, many of these entrepreneurs are learning that the establishment of a company, even if its services reach United States consumers, does not guarantee receipt of a US work visa.  How can one own a business that sells to US consumers but not be able to work and live in the United States?  The answer to this question lies in the United States Immigration Laws.

Firstly, in order to receive an H1B visa (which is the typical non-immigrant work visa), the visa applicant must have a job offer from a “United States” corporation.  However, for the entrepreneur with a start-up company, the requirement of having a US corporation is quite easily overcome.  In fact, a US corporation can be formed in a matter of days as the filing of incorporation documents and the obtainment of a US Tax Identification Number can all be accomplished in less than one week thanks to the internet and minimal incorporation requirements.

Once officially a “US corporation,” such corporation may then “sponsor” the visa applicant for a work visa by offering the applicant a job and submitting an H1B petition on behalf of the applicant (who is in fact the owner of the company under these circumstances).  It seems like a reasonable way to obtain a US work visa and overcome the requirement mentioned above, and it is happening more and more frequently these days.  However, the US Government is aware of this approach, and they recently issued their response.

The United States Citizen and Immigration Services (“USCIS”) recently released a memorandum (“Memo”) which amended the current law and clarified the United States’ stance on self-employed business owners who use their US incorporation to petition for their own H1B work visa.  The Memo states that even if the company incorporated in the US, has a US tax identification number, and is willing to submit a petition for the employee, the corporation must also demonstrate that there is an “employer-employee relationship” between the petitioning corporation (employer) and the visa recipient (employee).

The relevant statutory definition of the employer-employee relationship is found at 8 CFR 214.2(h)(4)(ii), which states that the “employer” must be able to “hire, pay, fire, supervise, or otherwise control the work” of the “employee.”

The Memo further clarifies this statutory definition in regards to a self-petitioning employer/employee by stating that a self-employed petitioner does not meet the employer-employee requirement because the employee “cannot be fired by the [employer].  There is no outside entity that can exercise control over the [employee].  The [employer] has not provided evidence that that the corporation, and not the [employee] herself, will be controlling her work.”  Essentially, the employee cannot also be the employer.

Consequently, USCIS clarified via the Memo that a self-employed petitioner will fail to meet the requirements for an H1B work visa due to the employer-employee relationship requirement.

So what can those who are self-employed do in order to obtain a work visa in the US?  Other possibilities exist to obtain other types of work visas (i.e. E-1. E-2, L-1, etc.), but the visa application must be carefully prepared in order to meet today’s legal requirements, and the corporation will likely need to be strategically operated to align itself with the amended immigration rules.

Overall, the self-employed entrepreneur can still find potential avenues into the United States, but the H1B visa is no longer one of them.

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada, Australia and England.

Foreign Experts B-1 Visa

The issue of relocating foreign experts from all over the world and bringing them to work in Israel is essential for many companies. Such experts either bear knowledge and expertise unfound in Israel, or are top executives. Foreign experts can obtain an entry visa to Israel through a special procedure, awarding them a 1-year working visa, which can be prolonged to a total period of five years and three months. That type of visa can be obtained in compliance with the required terms, issued by the Israeli Work Permits Unit and by Bukahris’ Committee Report (a report surveying the volume of foreigners employed within the Israeli market, dated July 2001, relating to foreign experts):

1. Salary amounting twice local Israeli average salary.
2. Proven quality and proficiency of the foreign experts.
3. Management or development expertise.
4. Creating additional working places.
5. Transfer of knowledge, expertise and Know-How, non-existing in Israel.
6. High education and high professional level.

The above are some of the considerations of the Israeli MOI and of the Israeli Work Permit Unit when awarding foreign experts a B-1 status.

These experts hold high-executive positions, such as CEOs, Vice Presidents, Engineers, etc. Their contribution to the Israeli companies and to the local market is noticeable, and therefore it is important to facilitate and simplify their relocation process and their stay in Israel.

Visas for Family members

Most Foreign experts arrive for a short period of time, but in some cases they arrive for long periods of time. In some of these cases, spouse and children join the expert while in Israel. Family members receive Tourist B-2 Visas, valid for the same time period as the foreign expert himself.

Problematic Situation

Relocating a foreign expert is a combined, even complicated, task. It results with the expert finding himself in an unfamiliar country and surroundings, facing a different culture and mentality, and completely taken by the demands of his working place. His family members, however, are left unattended for and are not allowed working. And so, while the expert is busy working and his children are at kindergarten / school, his spouse is left behind, unable to and not allowed working, due to Israeli MOI regulations, declaring that permitting spouse’s work might result in permanent stay.

Dealing with foreign experts spouses, we must bear in mind that these are usually top-key professionals as well, contributing to their environment, speaking several languages, have lots of experience and knowledge from working places all over the world. They find themselves surplus, renouncing their personal career for a considerable period of time. This can bring about one or more of the following scenarios: 1. Married expert, highly skilled and needed, will refuse the job offer when considering its’ effect on his spouse – this might bring about hiring a lesser proficient expert for this position. 2. Frustrated spouse, finding herself / himself without work – a situation that can easily lead towards tension with husband / wife, and, as a result, a decision to leave before completion of expert’s tasks. 3. Spouse might find an illegal position – Loss of income to the local authorities. 4. Danger of breaking the marriage / family ties.

The need to change present regulations

We believe the Israeli MOI regulations, concerning accompanying families of foreign experts, must be changed. These are not second-degree workers, arriving for a few months, nor are they immigrants wishing to settle in Israel for good. They are high-rank experts, taking over senior positions, contributing from their experience, professionalism and time to the local market local economy, and to their employer. Relocation, although a very expensive process, is very common all around the world – many experts are constantly changing their positions, their working places and residency. Therefore, and being a part of western developing countries, the State of Israel and its’ MOI should make an effort and change the present regulations concerning Foreign experts’ families.

In our opinion, awarding working permits to the accompanying family members shall not cause any harm. The working permits are issued for a specified period of time anyway, and the employer guarantees departure of the experts and their families immediately after the employment contract has expired. Furthermore, we think that viewing such working family members as a potential danger, is unreasonable. Unlike married experts, having to take care of spouse and children, a single expert, arriving on his own, is a lot more dangerous – he is free and able to form social contacts with local Israelis.

Summary

This article elaborates on the regulations concerning family members, accompanying foreign experts arriving in Israel for working purposes, as these regulations are unsuitable for the modern era, create an uncalled-for burden on the experts’ and might result in their renouncing relocation offer. In view of the considerable contribution of such experts to Israeli companies and to the Israeli economy, these regulations must, in our opinion, be changed.

All said and explained in this article does not constitute a legal opinion and does not replace legal advice. Responsibility for using the wordings and opinions conveyed in this article relies solely and entirely on the reader.

This article was written by Dotan Cohen Law Offices, working in the field of immigration law in the United States, Canada and Australia.