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FY 2022 H-1B Cap Registration Begins March 8, 2021

The FY 2022 H-1B Cap Registration period will begin March 8, 2021, and end March 26, 2021.

The new H-1B cap registration final rule (86 FR 1676) modifying the H-1B cap selection process, amending current lottery procedures, and prioritizing prevailing wage takes effect on March 8, 2021. Our firm expects this to be the start date of the 2022 H-1B cap registration period, even if Biden withdraws the final rule.

The essentials of E-1 Treaty Trader & E-2 Treaty Investor visas

Trade and investments play a large role in international commerce. For foreign nationals interested in trade or investing in the U.S., the U.S. Citizenship and Immigration Services (USCIS) offers two non-immigration visas to encourage trade and investment opportunities.

E-1 Treaty Traders

This non-immigrant visa classification allows a citizen of a county with which the U.S. has a treaty of commerce admission to the U.S. to engage in international trade. Employees of a trade organization may also be eligible for this visa. Items of trade include goods and services along with tourism, transportation and international banking.

To meet the eligibility qualifications the treaty trader must be a national of a treaty country. The trader must also engage in substantial frequent trade, including principal trade between the U.S. and the qualifying treaty company. To be eligible an employee of a trade organization must be of the same nationality of the treaty trader and meet the definition of an employee. The employee must also be in a supervisory role or possess essential skills or special qualifications needed by the treaty employer.

E-2 Treaty Investors

An E-2 visa is a form of non-immigrant classification that allows a national of a treaty country admission to the U.S. to invest substantial capital into a U.S. business. As with an E-1 visa, the applicant must be a national of a treaty country. The investor must have either already invested or in the process of investing substantial capital in a U.S. enterprise. An E-2 principal applicant can be requesting access to develop and direct an investment enterprise. An employee of a treaty investor is eligible for E-2 visa if they meet the same qualifications listed above for an E-1 visa.

In order to meet the USCIS definition of substantial capital, the amount must be substantial in relation to the total cost of either purchasing or establishing the new enterprise. The amount must also be sufficient enough to ensure the investor’s financial commitment to the success of the enterprise. For a low cost venture the investor will be expected to contribute a higher percentage of funds to be considered substantial.

Length of stay and accompaniments

E-1 and E-2 visa holders are allowed an initial stay of up to two years with the ability to request unlimited extensions. Treaty traders and investors are allowed to bring spouses and unmarried children under age 21 to accompany them. Family members are eligible for dependent visas and are typically granted the same period of stay. The E dependent spouse and children may attend school. The E spouse may obtain U.S. employment authorization. A person that obtains E visa status may apply under EB5 when the investment qualifies.

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