Living and working in Florida

‘Our attitude towards immigration reflects our faith in the American ideal. We have always believed it possible for men and women who start at the bottom to rise as far as their talent and energy allow. Neither race nor place of birth should affect their chances’ – Robert Kennedy

Having visited Florida for over 20 years, I finally made the decision to move here 6 years ago. It was certainly the best decision I have ever made with no regrets other than missing the odd curry on a Friday night. Florida provides a unique lifestyle which cannot be matched anywhere else in the world however the immigration process is not straightforward and the decision to live and work here should not be made lightly. To follow is a brief overview of the different ways you can enter the U.S. to live and work. It is by no means a guide, and speaking from my own experience, I advise you to speak to a specialist immigration attorney here in Florida before entering into any decision regarding immigrating to the USA.

Understanding the system

American Immigration law is a patchwork of statutes, agencies and inconsistencies.  This is probably a true and accurate description of the current system. Although a review of the current laws is often mentioned in congress, any substantial change will not happen any time soon. To understand the law, you must first understand the system and to understand the system you must first understand the agencies involved in the system.

Department of Homeland Security (DHS)
The DHS includes U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE). USCIS is responsible change and extension of visas, granting Green Cards, naturalization and asylee/refugee matters. CBP is responsible for inspecting and granting entry into to the U.S. on arrival at the borders (those friendly people who meet and greet you at Orlando Airport) and ICE is responsible for investigating violations of the law and enforcing departure of citizens not authorized to remain in the country.
http://www.dhs.gov/index.shtm (DHS)
http://www.uscis.gov/portal/site/uscis (USCIS)
http://www.ice.gov/ (ICE)
http://www.cbp.gov/ (CBP)

Department of State (DOS)
Before being granted a Visa, an applicant must visit an American consul overseas. Overseas consuls are under the authority of the DOS and subsequently the decision to grant the visa falls under the DOS jurisdiction.

http://www.state.gov/ (DOS)

Although the decision to grant the visa is made by the DOS, the rules governing this are promulgated and interpreted by DHS. This is why a decision by the DHS may not be the same as the DOS and visa versa. This is one of the most frequently debated subjects amongst us British expats here in Florida – how can my visa be authorized here in America but denied once I go back to the Embassy in London?

Types of visas

Classifications

For a British person to gain admission into the U.S. to live and work, there are two types of visa categories – immigrant and nonimmigrant. Immigrant visas are for those who want to remain in the U.S. permanently, due to the demand for these types of visa there is a numerical cap on the number of visas allocated. Nonimmigrant visa are for those who are coming for a temporary purpose and subsequently there are no numerical restrictions on the number of individuals who may be admitted, unless it is a nonimmigrant visa which may lead to immigrant status.

Although there are a number of visa types available to gain access into the U.S., the varying requirements and restrictions of each visa creates a web of quotas, guidelines and information which can be very frustrating. Again, seek the advice of a specialist immigration attorney to discuss your specific needs.

Nonimmigrant visas – the list below is not exhaustive, simply the most popular visa types for British people

B1/B2 Tourism visa
This visa category allows tourists or people with a business purpose to remain in the country longer than the time allocated through the visa waiver. Although the visa may be granted for a lifetime, you are only allowed to remain in the country 180 days out of a 365 day period. This is perfect for people who do not want o work in the U.S. but spend half of their time here and then return to the U.K. for the remainder of the year. Spending the winter months in Florida and returning to the U.K. for the summer is attractive for many retirees.

Work or Business visa

E visas
E visas are treaty visas for traders or investors. This means that a person is allowed to remain in the U.S. for an indefinite amount of time in a reciprocal treaty of commerce and navigation between the U.S. and the country of nationality. The E1 treaty trader visa means the applicant must be engaged in substantial trade and the E2 treaty investor must be developing or directing an enterprise in which he or she has invested a substantial amount of capital. E2’s are granted for an initial period of two years and may receive extension as in two-year increments as long as the business is maintained.

The E2 visa has by far been the most popular visa used for British to enter the States given the broadly interpreted ‘substantial’ investment. Typically purchasing a business for $150,000 has resulted in visa success. However, numerous ‘fraudulent’ applicants have raised red-flags in the Embassy in U.K. and the requirements for initial E2’s and E2 renewals are becoming more stringent. People looking to use this method to emigrate must also be aware of some of the criterion of the visa – you have to work in the business and maintain profit and growth indefinitely otherwise a renewal is unlikely. Also, for those with children, once the child reaches the age of 21, they are no longer covered under the visa and subsequently must leave the country or apply for a new visa themselves.

H visas
The H-1 and H-2 visas are for temporary workers, and the H-3 is for trainees. The most popular H category for British people is the H1-B.

The H-1B allows persons who have a ‘specialty occupation’ to engage in work. The definition of specialty occupation is very expansive and requires the applicant to have the following:

• Theoretical and practical application of a body of highly specialized knowledge
• Bachelors or higher degree for entry into the field

There is an annual quota of 65000 visas available each year and a H1-B applicant must be sponsored by a company in the U.S. who requires the specialization of the applicant and the employer must obtain a labor condition application (LCA). The H1-B may be admitted for a period of up to 3 years and extensions generally cannot go beyond 6 years.

Even though the H1-B is a nonimmigrant visa, the doctrine of dual intent applies (although the original intent is to remain temporary, future intent to remain permanently is recognized) as the applicant can apply for an immigrant visa after the initial 3 year period.

L visas
The L1 visa or ‘intracompany transferees’ is designed for admission of multinational corporate executives and managers, or persons with specialized knowledge. The person must have been employed by the parent, branch or subsidiary corporation of the company continuously for one out of the prior three years. The statute defines managers as persons who manage a function or oversee a competent of a company; establishes the goals and policies of an organization or a major part or function of an organization, exercises wide latitude of discretionary decision making and receives only general supervision or direction from higher level executives.

An L1 has no quota and the visa holder may remain in the U.S. for a period of five to seven years. The spouse and children of the L1 are admitted as L2’s and they are permitted to work. Like the H1-B, the L1 visa enables holders to go from nonimmigrant to immigrant status.

For everyone currently on a nonimmigrant visa, the ultimate aim if they do want to remain long-term is to move from temporary to permanent status. Before making the decision regarding your move, consider your long-term goal as strategizing for this will probably save you a lot of money, time and hassle.

Immigrant visa

Lawful permanent residence can be achieved through the immigrant visa process in a number of ways:

• Family based immigrant visa
• Employment based immigrant visa
• Asylees and refuges
• Registry
• Cancellation of removal
• Diversity immigrant visas
• Legalization and other special relief

Employment based immigrant visa EB
The majority of British people looking to live and work in U.S. do so through the second route, Employment based immigrant visas. The employment based category is organized into preferences.

First Preference (EB-1)
One of the advantages of the EB-1 category is that applicants do not need to obtain a labor certification; resulting in it being deemed the ‘easiest’ preference should you make the requirements. Persons of extraordinary ability, outstanding professors and researchers or multinational executives or managers can apply for this preference

Second Preference (EB-2)
The second preference is for members of the professional holding advanced degrees, or for the persons with exceptional ability who is sought by an employer in the U.S.

Third Preference (EB-3)
Approximately 28.6 percent of the visas allocated for this employment-based category are for skilled works, professionals and other workers all of which require approved labor certifications

Fourth Preference (EB-4)
This preference if for ‘special immigrant’ visas; the statute includes many enumerated special immigrants, all of which only the major ones are mentioned below:

• Certain religious works
• Panama Canal Treaty employees
• Amerasian children
• Certain employees of the U.S. foreign service posts abroad
• Dependents of juvenile courts

 
Fifth Preference (EB-5)
This preference is for employment-creation visas, more popularly known as the new investor or retiree visa and is becoming more popular in the U.K. due to the requirements and permanent status.

The visa provides conditional residency for those who after November 29, 1990, invest $1 million in a new commercial enterprise that employs at least 10 full-time U.S. workers. Conditional residency means that the beneficiary receives temporary residency for a two-year period, at which time the application is made to remove the conditions and grant permanent residence. Within 90 days of the anniversary of the grant of conditional resident status, the person may request that the condition be removed and the individual will be granted permanent legal resident, hence they will be a Lawful Permanent Resident (LPR).

The visa allocation for this category is 7.1 percent of the total number of employment-based visas set aside annually, of which 3000 are reserved for ‘targeted employment areas’. A lesser investment of $500000 may qualify the investor if the investment is in one of the targeted employment areas that includes rural areas with populations of less than 20000, or locations that have experienced unemployment at 150 percent of the national average. The investment must be personally connected to the person seeking the status and may be made from jointly held bank accounts.

Under the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act of 1993, a pilot investor program was established that relaxes the standards for the EB-5 investor. The pilot program permits investments through Regional Centers with a relaxed job-creation requirement. The Regional Centers apply to USCIS demonstrating how the program will promote economic growth. Upon approval, a foreign investor’s investment in one of these Regional Centers may qualify you for the immigrant visa. This program was a success and was extended until 2008, therefore is under review this year. The likelihood is a further extension. Currently 3000 EB-5 visas through Regional Centers are allocated each year. The demand for these visas is rapidly growing and proving one the more streamlined ways to LPR status and to most peoples surprise the most cost effective.

I now assist many British clients looking to live and work in Central Florida. Call me for your free consultation to find out more.

Please feel free to check any of my qualifications and references with the following worldwide professional organizations and regulating bodies.

To contact me and arrange your fee consultation click the contact button below