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On June 26, 2013, the U.S. Supreme Court struck down provisions of the Defense of Marriage Act (DOMA), which previously limited certain federal benefits strictly to traditional opposite-sex married couples. In light of this, U.S. citizens in a same-sex marriage can now sponsor his or her foreign spouse for a green card. Same-sex marriage is legal in the following states: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, Vermont, Washington, Minnesota, and the District of Columbia. Please click here for more information about sponsoring a same-sex spouse for permanent residency.

Many people have been asking me whether they should apply for an E-2 treaty trader visa or an EB-5 green card. I have previously discussed each one of them in my previous posts below. There are several advantages and disadvantages to each one, which I will outline in this post. Which one is right for you depends on your specific needs and resources.

If your goal is to simply live in the United States, I would recommend an EB-5 green card through a Regional Center. An investment of $500,000.00 gets you and your family an immediate green card without the need to start up a company or to oversee operations.

If your goal is to start up your own business operation, then an E-2 visa would be ideal unless you have a significant amount of money to invest – in which case a $1 million EB-5 green card may be appropriate.

Advantages of an E-2 visa

– Renewable indefinitely

– Smaller investment than and EB-5 green card (as little as $50,000.00 to $250,000.00)

Disadvantages of an E-2 visa

– Money must be substantial and at risk

– No path to permanent residency

– Visa expires upon termination of the business

– Unable to accept income until E-2 is granted; even though you have already put the investment at risk prior to approval

Advantages of an EB-5 green card

– Immediate residency in the U.S.

– Spouse and children under 21 obtain residency under the primary applicant’s investment

– Live, work, travel, study in the United States without any restrictions

– Residency is permanent – generally no expiration

Disadvantages of an EB-5 green card

– Higher investment amount ($500,000.00 to $1 million)

– Investment tied up for extended period of time

Transferring to a U.S. company

The L visa allows a U.S. employer to transfer a manager or an executive from an affiliated foreign office to one of its U.S. offices. The employer must be doing business in the U.S. and it must have an existing relationship with the foreign company (such as being a parent company, affiliate, subsidiary etc.). Furthermore, the employee must have been working for the affiliated employer in the foreign country for at least one continuous year within the three years prior to being issued an L visa, and he/she must be going to the U.S. to render services as a manager/executive. Employees will be granted an initial three-year L visa.

Example: KPMG is an accounting company with offices in Canada and in the United States. Sally is a Canadian citizen who has been working as a financial accounting director for KPMG in its Vancouver offices for the past four years. She has accepted a position to work as a financial accounting director at KPMG in its New York office. She is eligible to work in New York under an L visa.

Example: Sally has only been working as a financial accounting director at KPMG in Vancouver for the past six months. She is not eligible for an L visa to work in the New York office. However, she may be eligible for a TN visa or an H-1B visa if, for example, she is a CPA or has at least a bachelor’s degree in accounting or a related field.

Setting up a U.S. affiliate company

The L visa also allows a foreign company that does not yet have an affiliated U.S. office to send a manager/executive to the United States for the purpose of setting one up. To do so, the foreign company must demonstrate that: 1) sufficient physical premises to house the new office have been secured; 2) the employee has been employed as a manager/executive for one of the three previous years; and 3) the new U.S. offices will support an executive/managerial position within a year of the L visa being issued. These employees will be granted an initial one-year L visa. This is an ideal visa for foreign companies looking to expand to the United States and should be considered as an alternative to the E visa.

Family of L visa holders

Employees under an L visa are also allowed to bring their spouses and unmarried children under 21 years of age to the U.S. under an L-2 classification for the same period of stay as the primary employee. Spouses of L visa holders are allowed to work in the United States as well.

Please click here for more information on the L-1 visa.

The J visa originates from the Exchange Visitor Program, “promotes mutual understanding between the people of the United States and the people of other countries by educational and cultural exchanges, under the provisions of U.S. law.” There are several categories of individuals who may be eligible for a J visa, including physicians, scholars, nannies, au pairs, students, teachers. camp counsellors, interns and government visitors. To obtain a J visa, the applicant must first be accepted into a SEVP (Student and Exchange Visitor Program) approved program. These programs usually charge a fee to the applicant or the sponsor/host/employer. Furthermore, the foreign applicant has to demonstrate that their intent to remain in the United States is temporary; that they have sufficient funds to cover their expenses while in the United States; and that they have “compelling social and economic ties abroad” that will ensure that they return home upon the expiration of the J visa.

J visas require jumping through more hurdles than a B visa. So one should consider whether a B visa is more appropriate for your intended activity. In fact, some activities under a J visa are also permitted on the B visa. For example, studying for short periods of time, or recreational study (as opposed to vocational study), may be permitted on a B visa. For example, you may take a one day dance class or cooking class on a B visa, so long as you do not earn any type of formal credit or certification.

Finally, one crucial component of the J visa is the 2-year foreign residence requirement, which requires certain J-1 visa holders to return to their country of nationality or permanent residence for an aggregate of at least two years upon completion of their program. This prevents a J visa holder who is subject to the requirement from changing or adjusting status until the 2-year requirement is satisfied. So who falls under the home residency requirement?

– The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor’s nationality or last residence
– The exchange visitor entered the U.S. to receive graduate medical education or training
– The exchange visitor is a national or permanent resident of a country which has deemed the field of specialized knowledge or skill necessary to the development of the country.

However, applicants subject to the requirement may be able to apply for a waiver of the foreign residence requirement under certain circumstances, such as persecution or exceptional hardship.

The J visa is an excellent visa for a narrow category of individuals. However, I would always recommend that foreign applicants consider other visas before deciding on a J visa, simply because it may eliminate the need to go through an approved exchange program. For example, nannies/au pairs may opt for an H-2B visa instead of a J visa. A medical doctor may opt for an F, H-1B or L-1 visa. Many others may simply qualify for a B visa.

Both Canada and the United States have a family-based sponsorship program that allows its respective citizens to sponsor members of its immediate (and sometimes extended) family. Below is a list of some notable differences between the two countries’ programs:

Canada recently implemented a 2-year conditional residency requirement that a married couple must reside together if they had been together for less than 2 years and have no children together. The US has a 2-year conditional residency requirement, but it only requires that the couple jointly apply to remove the condition prior to the 2-year anniversary of when the green card was issued
US has no language testing requirement to be a permanent resident, whereas Canada does have language requirements
Canada allows sponsorship of common law partners and conjugal partners for permanent residency, whereas the U.S. only allows citizens to sponsor a legally married, opposite-sex spouse
Canadians sponsoring a spouse, common law partner or conjugal partner do not have to meet minimum income requirements, whereas US petitioners have to meet minimum income requirements to sponsor a spouse
In Canada, only the spouse or common law partner of a sponsoring citizen can co-sign to meet the income requirements, whereas in the US, non-family members can act as a joint sponsor
Canada does not have a fiancé visa, whereas the U.S. does
Canada does not permit a citizen to sponsor a sibling (unless he/she has no other relative); whereas the U.S. permits siblings sponsorship
In Canada, an inadmissible non-accompanying family members may render the principal applicant inadmissible; but not in the U.S.