July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.1 Bio/Pharma HR Network Strategic Immigration Planning for Bioscience Organizations By: Michael L. Kabik, Esq. © 2004 Immigration, Nationality & Consular Practice Group Shulman, Rogers, Gandal, Pordy & Ecker, P.A Rockville Pike, Suite 300, Rockville, Maryland U.S.A. Telephone: (301) Facsimile: (301) Web Site:

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.2 Today’s Presentation H-1B Cap F-1 Optional Practical Training (“OPT”) Alternatives to H-1B New Dept. of Labor “PERM” E-Filing

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.3 Today’s Presentation Corporate Restructuring Consular Processing/Visa Issues Technology Alert List (“TAL”) Deemed Export Rule

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.4 H-1B Cap H-1B – “Specialty Occupation” Employer-Specific Professional Requires Bachelor’s degree or equivalent –CIS work experience 3:1 rule 3 Year Visa validity period 6 year max. Extensions beyond 6 year max. in limited circumstances FY-2003 Cap = 195,000 visas FY-2004 Cap = 65,000 visas

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.5 H-1B Cap H-1B “Portability” Greatly simplifies mobility among employers H-1B workers can start new employment Upon filing of new “non-frivolous” H-1B Petition –Subject to final approval of new H-1B Petition Need not wait for approval of H-1B Petition to begin work

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.6 H-1B Cap H-1B “Portability” Requirements Lawfully admitted to U.S. New petition filed prior to expiration of authorized stay –CIS has discretion to forgive “lapse in status” No prior employment w/o authorization

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.7 H-1B Cap FY-2004 H-1B Cap hit 2/17/04 Only non-cap H-1B’s approvable until FY (starting 10/1/04) File H-1B Petition for start dates up to 6 months early As of 5/31/ ,100 H-1B’s approved against FY-2005 Cap

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.8 H-1B Cap H-1B Cap Exemptions Institutions of higher education Nonprofit entities related to or affiliated with institutions of higher education Nonprofit research organizations Governmental research organizations

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.9 H-1B Cap H-1B Cap Exemptions Prospective H-1B employees previously granted H-1B status In the past 6 years Not left U.S. for >1 year attaining H-1B status Not previously worked for a cap-exempt organization/not counted against the H-1B cap in past 6 years

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.10 F-1 OPT F-1 – Optional Practical Training University students 1 year validity period (cumulative) Breaks during degree Post degree Limited to field related to academic study Non-employer specific

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.11 F-1 OPT F-1 – Optional Practical Training Impact of expirations before FY-2005 F-1 60 day grace period Without employment authorization CIS “Cap Gap” regulation for F-1 with D/S Pending at OMB since 6/18/04 90 day review period Maintenance of valid status

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.12 H-1B Cap and F-1 OPT Recruitment Remainder of FY-2004 Into FY-2005 Strategic planning to avoid Delayed start new H-1B employees Interruptions to existing employees changing to H-1B status

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.13 H-1B Cap and F-1 OPT Strategic Planning When will FY-2005 H-1B cap hit??? Accelerated H-1B Filings for F-1 OPT’s with FY-2005 expiration dates Premium Processing Identify potential employees not subject to H-1B cap

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.14 Alternatives to H-1B TN – NAFTA Professional H-1B – FTA Professional O-1 – Extraordinary Ability E-1 – Treaty Trader E-2 – Treaty Investor L-1 – Intracompany Transferee

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.15 Alternatives to H-1B TN – NAFTA Professional Employer specific U.S. Employers Canadian or Mexican Employers Limited to Canadians and Mexicans 67 specified professions 1 Year maximum admission Indefinite extensions

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.16 Alternatives to H-1B TN – NAFTA Professional Canadians visa exempt Apply directly at Border or POE Mexicans require TN Visa Apply directly at U.S. Consular Post Changes as of January 2004 –5,500 FY Cap eliminated –LCA approval eliminated –I-129 approval eliminated

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.17 Alternatives to H-1B H-1B – FTA Professional U.S.-Chile Free Trade Agreement Effective January 2004 Limit – 1,400 per FY U.S.-Singapore Free Trade Agreement Effective January 2004 Limit – 5,400 per FY “Specialty Occupation” requirement

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.18 Alternatives to H-1B H-1B – FTA Professional LCA requirement Primary U.S. Consular Posts Limited to 18 months No “Dual Intent” as with regular H-1B’s Required to overcome presumption of “Immigrant Intent” After 5 renewals, counts against regular H- 1B cap

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.19 Alternatives to H-1B O-1 – Extraordinary Ability Employer specific Aliens of “Extraordinary Ability” Sciences, Arts, Education, Business & Athletics 3 Year maximum visa validity period Unlimited extensions EB-1 Greencard Benefit

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.20 Alternatives to H-1B O-1 Criteria Receipt of a major internationally recognized award e.g., the Nobel Prize Receipt of 3/10 of other forms documentation

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.21 Alternatives to H-1B O-1 – 3/10 Criteria Nationally/Intl’ly recognized prizes/awards for excellence in the field of endeavor Membership in associations in the field which require outstanding achievements as judged by recognized nat’l or int’l experts Published material about the person in professional or major trade publications or other major media

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.22 Alternatives to H-1B O-1 – 3/10 Criteria Participation (on a panel or individually) as a judge of the work of others in the field Original scientific, scholastic, artistic, athletic or business-related contributions of major significance in the field Authorship of scholarly articles in the field in professional journals or major media

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.23 Alternatives to H-1B O-1 – 3/10 Criteria Employment in a critical or essential capacity for organizations or establishments that have distinguished reputations High salary or other high remuneration in relation to others in the field Other comparable evidence

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.24 Alternatives to H-1B E-1 – Treaty Trader Employer Specific No prior employment req’d (unlike L-1) Treaty must exist – U.S. & other country Majority ownership/control of U.S. entity At least 50% by treaty country nationals Alien must be citizen of treaty country 2 Year maximum visa validity period Indefinite extensions Initial consular jurisdiction abroad

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.25 Alternatives to H-1B E-1 Special Requirements Trade Exchange, purchase, or sale of goods, services or technology Substantial No minimum dollar threshold Volume of trade Number of transactions Includes binding contracts Continued course of trade

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.26 Alternatives to H-1B E-1 Special Requirements Principally with U.S. 50%+ of total volume of international trade of the U.S. entity must consist of trade between U.S. and treaty country Duties Supervisory, Executive, Managerial Highly Specialized Essential Skills Not including “ordinarily skilled” workers

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.27 Alternatives to H-1B E-2 – Treaty Investor Employer specific No prior employment req’d (unlike L-1) Treaty must exist - U.S. & other country Majority ownership/control of U.S. entity At least 50% by treaty country nationals Alien must be citizen of treaty country 2 Year maximum visa validity period Indefinite extensions Initial consular jurisdiction abroad

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.28 Alternatives to H-1B E-2 Special Requirements Active investment Irrevocable commitment of funds Actual active investment Substantial investment No minimum dollar amount –Standards for new or existing business Investment in process – start up company Investor’s own resources “At risk”

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.29 Alternatives to H-1B E-2 Special Requirements Creation of jobs Cannot be marginal –To only support the investor & his family Create job opportunities for U.S. workers Significant impact upon U.S. Essential role in enterprise Investor to develop and direct investment Executives, Supervisors, Specially Qualified Essential employee Not including “ordinarily skilled” workers

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.30 Alternatives to H-1B L-1 – Intracompany Transferee Employer specific Alien must be employed abroad by foreign entity 1 continuous year out of prior 3 years In “Executive,” “Managerial,” or “Specialized Knowledge” position Transfer to U.S. to fill “Executive, ” “Managerial,” or “Specialized Knowledge” position

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.31 Alternatives to H-1B L-1 – Intracompany Transferee Foreign entity must be related to U.S. company Same company Subsidiary Affiliate Qualifying Organization Doing business in U.S. and other country During whole period of transfer

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.32 Alternatives to H-1B L-1 – Intracompany Transferee L-1A -- Executives & Managers L-1B -- Specialized Knowledge Personnel Visa Validity Terms 5-7 Year Maximum (3 years initially) Start-Ups (1 year initially) EB-1 Greencard Benefit

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.33 DOL “PERM” E-Filing Current Permanent Residence Sponsorship “Labor Certification” Based upon shortage of qualified U.S. workers In metropolitan area of job location Willing to work for the “prevailing wage” Requires attempted job recruitment Managed by State Workforce Agency Certified by U.S. Department of Labor

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.34 DOL “PERM” E-Filing LPR Process -- Long backlogs and delays Labor Certification Application State Workforce Agency U.S. Department of Labor Immigrant Petition CIS Adjustment of Status (or Consular Processing) CIS (or U.S. Embassy abroad)

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.35 DOL “PERM” E-Filing New “PERM” Program Elimination of Labor Certification at SWA and DOL Electronic Filing Decisions expected within 2-3 weeks 2 National processing centers

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.36 DOL “PERM” E-Filing New “PERM” Program Prior employer recruitment Attestations Enhanced advertising requirements DOL audits

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.37 DOL “PERM” E-Filing Pending Labor Certification Applications No conversion to “PERM” Withdraw pending LC Application File new “PERM” Application Same job and same employee Carry forward the same priority date Use prior LC advertising if it meets new “PERM” requirements

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.38 DOL “PERM” E-Filing New “PERM” Program Provisional Regulations issued June 2003 Elimination of “Business Necessity” “PERM” Implementation 120 days after OMB approval Labor Certification program discontinuation after 120 days

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.39 DOL “PERM” E-Filing “PERM” Implementation Final DOL regulations sent to OMB in February 2004 Decision expected in May 2004 Still waiting....

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.40 DOL “PERM” E-Filing Good Signs New software beta tested DOL advertising for directors of new “PERM” national processing centers

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.41 DOL “PERM” E-Filing Unknowns Status of “Business Necessity” elimination Timing of implementation Will DOL have funds to implement “PERM”?

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.42 Corporate Restructuring Changes in Corporate Structure Forward Mergers Reverse Mergers Acquisitions Consolidations Spin-Offs Contact Immigration Counsel BEFORE the Corporate Restructuring

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.43 Corporate Restructuring H-1B Visas Amended H-1B Petition is not required if New corporate entity succeeds to the interests and obligations of the original petitioning employer Terms and conditions of employment remain the same, except for the identity of the petitioner Specifically includes, but not limited to Mergers, Acquisitions, Consolidations

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.44 Corporate Restructuring H-1B Visas New LCA’s not required if documentation made to new entity’s Public Access File List of transferred H-1B workers List of affected LCA’s and dates of certification Description of new entity actual wage system New entity EIN Sworn statement from new entity re: LCA

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.45 Corporate Restructuring H-1B Visas Prior to the continued employment of the H-1B nonimmigrants Sworn statement from new entity assuming liabilities and obligations of existing LCA’s Including liability for any LCA violations of predecessor

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.46 Corporate Restructuring E-1 & E-2 Visas New E-1 or E-2 Petition required with change in ownership File at CIS or U.S. Embassy/Consulate Due to E-1/E-2 treaty trader/investor basis Analysis of corporate ownership structure is required to determine continuing E-1/E-2 qualification –Based on treaty country national ownership

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.47 Corporate Restructuring L-1 Requirements New L-1 Petition required with change in ownership Due to L-1 intracompany transferee basis Analysis of corporate ownership structure is required to determine continuing L-1 qualification –Based upon related foreign entity

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.48 Corporate Restructuring Immigrant Petitions Amended Immigrant Petitions required UNLESS Labor Certification/Immigrant Petition are “portable” –Application to Adjust Status filed & unadjudicated for 180+ days –New job is in the same or similar occupational classification

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.49 Consular Processing/ Visa Issues Visa Application and Issuance U.S. Embassies and Consulates Abroad

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.50 Consular Processing/ Visa Issues New Rules and Restrictions Implementation of integrated entry-exit control system Increased law enforcement and intelligence agency coordination Inter-agency data sharing “Zero Tolerance”

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.51 Consular Processing/ Visa Issues Mandatory visa interviews Long waits for appointments Biometric identifier requirements Intensive multiple security clearances Further delays (weeks to months) High number false positive “hits” with similar names Risks of getting stuck abroad

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.52 Consular Processing/ Visa Issues Enhanced Security Clearances Focus on nationality (place of birth) Focus on time spent in certain countries State Sponsors of Terrorism List “List of 26” (Muslim countries) Technology Alert List Deemed Export Controls

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.53 Consular Processing/ Visa Issues End of visa revalidation H, L, O, P NIV classifications End date 7/16/04 due to new biometric requirements

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.54 Technology Alert List The TAL and Export Controls Originally designed to help maintain superiority over the Warsaw Pact Recently updated and expanded 3/03

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.55 Technology Alert List Security Objectives Stem proliferation of WMD and missile delivery systems Restrain development of destabilizing conventional military capabilities in certain regions of the world

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.56 Technology Alert List Security Objectives Prevent transfer of arms and sensitive dual-use items to terrorist states Maintain U.S. advantage in certain military critical technologies

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.57 Technology Alert List Part 1: Critical Fields List Major fields of technology transfer concern Prevent transfer of sensitive technology or material, particularly dual-use technologies Part 2: State Sponsors of Terrorism List

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.58 Technology Alert List Critical Fields List Conventional Munitions Nuclear Technology Rocket Systems Rocket System and Unmanned Air Vehicle Subsystems

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.59 Technology Alert List Critical Fields List Navigation, Avionics and Flight Control Usable in Rocket Systems and Unmanned Air Vehicles Chemical, Biotechnology, and Biomedical Engineering Remote Sensing, Imaging and Reconnaissance

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.60 Technology Alert List Critical Fields List Advanced Computer/Microelectronic Technology Materials Technology Information Security Laser and Directed Energy System Technology

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.61 Technology Alert List Critical Fields List Sensors and Sensor Technology Marine Technology Robotics Urban Planning

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.62 Technology Alert List CFL – Chemical, Biotechnology and Biomedical Engineering Technology used to produce chemical and biological weapons Inherently dual-use Wide use by civilian research labs and industry Advanced biotechnology Potential to support biological weapons research

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.63 Technology Alert List CFL – Chemical, Biotechnology and Biomedical Engineering Aerobiology, Biochemistry, Pharmacology, Immunology, Virology, Bacteriology, Mycology, Microbiology, Pathology, Toxicology, Genetic Engineering, Lyophilization, Fermentation Technology, Cross-filtration Equipment, High DOP- rated filters, Microencapsulation, Aerosol/ Aerosolization Technology,

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.64 Technology Alert List CFL – Chemical, Biotechnology and Biomedical Engineering (continued) Chemical Absorption, Organo-phosphate Chemistry, Neurochemistry, Chemical Engineering, Chemical Separation Technology, Pesticide Production Technology, Pharmaceutical Production Technology, Chemical Separation Technology, Neurology, Production of glass-lined steel reactors/vessels, pipes, flanges, other equipment

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.65 Technology Alert List Immigration Law Impact Nonimmigrant aliens inadmissible where reason to believe intention to violate or evade laws prohibiting export goods, technology, or sensitive information At NIV application, Consular Post may examine involvement in TAL CFL dual-use technologies

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.66 Technology Alert List Immigration Law Impact If possibly ineligible, Consular Officer must submit Security Advisory Opinion (SAO) via Visa Mantis check Visa Mantis check avg. time is 30 days (up to 6 months) Visa Mantis check is mandatory of nationals of State Sponsors of Terrorism

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.67 Technology Alert List TAL Exempt Information in public domain Information presented in academic courses

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.68 Technology Alert List TAL Impact on Consular Processing Expect long delays Overly cautious Consular Officers Security checks for any applicants with scientific or research background

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.69 Technology Alert List TAL Impact on Consular Processing Avoid travel abroad for visa processing Especially for nationals of: State Sponsors of Terrorism Muslim countries Countries of “Concern” (PRC, Russia)

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.70 Deemed Exports Export Controls and Licenses Deemed Export Rule Release of controlled technology to nonimmigrant foreign national in course of employment Presumption of export to home country Release of technology to foreign national in U.S. considered export to foreign country

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.71 Deemed Exports Covered Technologies Dual-use technologies Including Chemicals, Microorganisms, and Toxins Munitions Including Weapons Technologies

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.72 Deemed Exports Exempt Technologies Patent applications open for public inspection Publicly available technology Technology arising during or resulting from “Fundamental Research” Educational technology

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.73 Deemed Exports “Fundamental Research” Basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community Results normally published in scientific literature making it publicly available Only needs to be intended for publication

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.74 Deemed Exports Proprietary Research/Industrial Development, Design, Production, and Product Utilizations Results are restricted for proprietary and/or national security reasons

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.75 Deemed Exports Impact on Consular Processing Delayed visa issuance Initiation of inquiry re: employer liability for Illegal technology transfer Failure to obtain export license

July 21, 2004 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.76 Legal Disclaimer Facts of individual cases differ The information provided herein is general in nature and should not be relied upon Consult with an experienced immigration attorney with regard to specific cases