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Visa and Permanent Residence Options Visa and Permanent Residence Options for the Entrepreneurial Student Harvard Business School H. Ronald Klasko, Esq.

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Presentation on theme: "Visa and Permanent Residence Options Visa and Permanent Residence Options for the Entrepreneurial Student Harvard Business School H. Ronald Klasko, Esq."— Presentation transcript:

1 Visa and Permanent Residence Options Visa and Permanent Residence Options for the Entrepreneurial Student Harvard Business School H. Ronald Klasko, Esq. Klasko, Rulon, Stock and Seltzer, LLP Philadelphia New York 1800 JFK Blvd. Suite Madison Ave. Suite 1518 Philadelphia, PA New York, NY

2 Klasko, Rulon, Stock & Seltzer, LLP H. Ronald Klasko, Esq. Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to universities, hospitals, and research institutions for over 25 years. Ron is a past National President of the American Immigration Lawyers Association and served for 3 years as the bar association’s General Counsel. His firm is the first immigration law firm global partner of NAFSA: Association of International Educators. Mr. Klasko has been invited by more than 25 universities and hospitals to address students and scholars. Ron has been selected as one of six top tier immigration lawyers in the US by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers 2007 and 2008 Corporate Immigration Law edition selected Ron as the “most highly regarded” immigration lawyer in the world. He is a frequent author and lecturer on hospital and university-related immigration law topics and is a former Adjunct Professor of Immigration Law at Villanova University Law School. Ron is a graduate of the University of Pennsylvania School of Law

3 Klasko, Rulon, Stock & Seltzer, LLP 2009 Issues ■ Fewer job offers ■ H-1B quota ■ Impact of layoffs ■ Increased opportunities for investors and entrepreneurs

4 Klasko, Rulon, Stock & Seltzer, LLP Employment Options for the F-1 Student ■ 20 hours per week on campus ■ OPT after complete studies ■ Options for the entrepreneur  On-campus employment must be services for students  OPT employment must be related to studies  See “Murky F-1 Employment Issues” (http://www.klaskolaw.com)http://www.klaskolaw.com

5 Klasko, Rulon, Stock & Seltzer, LLP H-1B Issues for Start-Up Business  Must establish company with employer tax I.D. number  Company can be 100% owned by H-1B employee  Must be W-2 employee  Company separate entity from owner/employee

6 Klasko, Rulon, Stock & Seltzer, LLP H-1B Issues for Start-Up Business Company must prove  Financial ability to pay salary  Profits and/or capitalization  Real job to be done by H-1B  Place of business (cont’d)

7 Klasko, Rulon, Stock & Seltzer, LLP H-1B Issues for Start-Up Business Importance of business plan/financial projections Other employees helpful – not required Prevailing Wage  CEO vs. function-descriptive position (cont’d)

8 Klasko, Rulon, Stock & Seltzer, LLP H-1B Issues for Start-Up Business “Specialty Occupation”  Use of concepts learned in courses H-1B Quota  Past years  2009  What it means  Employment during “cap gap” (cont’d)

9 Klasko, Rulon, Stock & Seltzer, LLP H-1B Issues for Start-Up Business Quota-exempt H-1B  Non-profit company  “Affiliated” with university  Research organization  Employed “at” university or other quota- exempt employer  Concurrent employment  Previous H-1B (cont’d)

10 Klasko, Rulon, Stock & Seltzer, LLP Other Nonimmigrant (Temporary) Options Treaty (E) Visas ■ Must be national of treaty country  ■ Company must be owned at least 50% by treaty country nationals

11 Klasko, Rulon, Stock & Seltzer, LLP (cont’d) Other Nonimmigrant (Temporary) Options Treaty (E) Visas  Visa for 1 to 5 years  Each entry limited to two years  Visa and entry can be extended indefinitely  No quota  Spouse can work

12 Klasko, Rulon, Stock & Seltzer, LLP ■Treaty traders (E-1)  “Substantial” import or export  Majority between U.S. and treaty country  Can be manager, supervisor or “essential skill” employee (cont’d) Other Nonimmigrant (Temporary) Options Treaty (E) Visas

13 Klasko, Rulon, Stock & Seltzer, LLP ■ Treaty investors (E-2)  “Substantial” investment  No exact amount  Varies depending upon type of investment  Relevant issues  Amount of investment  Number of employees  Needs of business  Likely profitability and growth potential  Business plan and financial projections critical (cont’d) Other Nonimmigrant (Temporary) Options Treaty (E) Visas

14 Klasko, Rulon, Stock & Seltzer, LLP ■ Visa applicant can be  Investor or  Manager, supervisor or essential employee (cont’d) Other Nonimmigrant (Temporary) Options Treaty (E)

15 Klasko, Rulon, Stock & Seltzer, LLP Intracompany Transferee (L-1) Visas ■National of any country ■No quota ■Length of visa  Start up 1 year  Established business 3 years  Maximum length 7 years

16 Klasko, Rulon, Stock & Seltzer, LLP Intracompany Transferee (L-1) Visas ■Spouse can work ■Must be “international” business  Business outside U.S. with at least 50% common ownership  Must be employed by that business one year ■Type of employment (in U.S. and overseas companies)  Manager or executive  “Specialized knowledge” employee (cont’d)

17 Klasko, Rulon, Stock & Seltzer, LLP Intracompany Transferee (L-1) Visas (cont’d) Start-up issues  Place of business  Employees  Capitalization  Need for “manager”  Business plan and financial projections

18 Klasko, Rulon, Stock & Seltzer, LLP Extraordinary Ability (O-1) Visas ■National or international renown ■“One of a few at the top of his peers” ■Must be employer or agent  Can be own company ■Length of visa  3 years  1 year extensions  Can extend indefinitely

19 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Family Employment Investment Asylum Lottery

20 Klasko, Rulon, Stock & Seltzer, LLP Quotas Per country of birth, per preference category, per fiscal year Filing date is “priority date” EB-1 (extraordinary ability, outstanding researcher, multinational manager)  No quota wait

21 Klasko, Rulon, Stock & Seltzer, LLP Quotas EB-2  National interest waiver  Labor certification requiring Masters degree Bachelors degree plus 5 years progressive experience, or Exceptional ability  No quota wait, except China and India EB-3  Labor certification requiring bachelors or 2 years experience  Long quota wait for all countries (cont’d)

22 Klasko, Rulon, Stock & Seltzer, LLP Investment (EB-5) No quota delay Amount of investment  $1,000,000 or  $500,000 in “targeted employment area”

23 Klasko, Rulon, Stock & Seltzer, LLP Investment (EB-5) Type of investment  Generally cash  “At risk”  Cannot use debt with investment enterprise as collateral (cont’d)

24 Klasko, Rulon, Stock & Seltzer, LLP Investment (EB-5) Type of business  Active business  New business or expansion of existing business  40% increase in net worth or number of employees (cont’d)

25 Klasko, Rulon, Stock & Seltzer, LLP Investment (EB-5) Employment creation  10 new or 10 additional full-time jobs  U.S. citizens or permanent residents  Saving 10 jobs in “troubled business” (cont’d)

26 Klasko, Rulon, Stock & Seltzer, LLP Investment (EB-5) Lawful source of funds  Extensive documentation required  Can be gift Must prove giftor's source of funds  Can borrow money (cont’d)

27 Klasko, Rulon, Stock & Seltzer, LLP Investment (EB-5) Nature of investor’s relationship to business  Do not have to be employee (but can)  Do not have to be owner (but can)  Cannot be purely passive  Limited partner ok (cont’d)

28 Klasko, Rulon, Stock & Seltzer, LLP Investment (EB-5) Two possibilities  Individual investment  See above  Regional center investment  Approximately 30 USCIS – approved regional centers  Mostly $500,000 investment  Indirect employment creation ok (cont’d)

29 Klasko, Rulon, Stock & Seltzer, LLP Investment (EB-5)  Some have long, successful history – some do not  Pilot program  Choosing a regional center  Due diligence list at regional-center.php regional-center.php (cont’d)

30 Klasko, Rulon, Stock & Seltzer, LLP Investment (EB-5)  Choosing between individual and regional center investment  vs-individual-eb-5.php vs-individual-eb-5.php (cont’d)

31 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions

32 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Self-Sponsored  Extraordinary ability EB-1 Extensive documentation required Reference letters critical (cont’d)

33 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment  National Interest Waiver EB-2 Standard  Exceptional ability or advanced degree  National priority  National impact Extensive documentation required Reference letters critical (cont’d)

34 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Employer-Sponsored  Outstanding Researcher or Professor EB-1 “Permanent position” Similar to extraordinary ability  Multinational Manager EB-1 Same as L-1 except must be manager or executive overseas (cont’d)

35 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment  Labor Certification Application (PERM) EB-2 or EB-3 Employer must:  Pay attorney fees and advertising costs  Define “minimum requirements”  Engage in required recruitment (approximately 4-5 months)  Interview U.S. worker applicants  Prove unavailability of qualified, interested, and available U.S. worker  Pay prevailing wage  Not available to owner of business (cont’d)

36 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Timing  Electronic filing  Possibility of audit  First of three steps (cont’d)

37 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment I-140 Petition  1 st step for EB-1 and national interest waiver  2 nd step for PERM Employee documents education and experience  If adjustment of status, file concurrently with I-485 if quota current  If consular immigrant visa processing, approval sent to National Visa Center (cont’d)

38 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment I-485 (Application for Adjustment of Status to Permanent Resident)  Cannot file until quota is current  Importance of filing Do not need to maintain visa status Can file for spouse and child Can get Employment Authorization Document (EAD) (cont’d)

39 Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Can get advance parole travel document  Eliminate need to obtain visas  Can still maintain and extend H-1B status Can leave employer if  I-140 approved  I-485 pending 180 days  Similar occupation Permanent resident upon approval Timing and delay issues (cont’d)

40 Klasko, Rulon, Stock & Seltzer, LLP Questions?

41 Klasko, Rulon, Stock & Seltzer, LLP For Further Information H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP (Philadelphia) (New York)


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