Visa and Permanent Residence Options Visa and Permanent Residence Options for the Entrepreneurial Student Suzanne Seltzer, Esq. Kate Kalmykov, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd., 17 th Floor317 Madison Ave., Suite 1518 Philadelphia, PA New York, NY

Klasko, Rulon, Stock & Seltzer, LLP Issues ■ Fewer job offers ■ H-1B quota ■ Effect of TARP requirements on H-1Bs ■ Impact of layoffs ■ Increased opportunities for investors and entrepreneurs

Klasko, Rulon, Stock & Seltzer, LLP H-1B Basic requirements Procedure and processing times Specialty occupation issues Part-time or full-time Length of approval Extensions Portability Travel

Klasko, Rulon, Stock & Seltzer, LLP H-1B Quota What is it and what does it mean? Who is not subject to the quota?  Universities  Nonprofit institutions affiliated with universities  Employed “at” university  Nonprofit or government research organization  Previous H-1B under cap  Concurrent employment Strategies and timing

Klasko, Rulon, Stock & Seltzer, LLP The H-1B and TARP Recipients Under the Employ American Workers Act:  Banks and other companies that receive TARP funds or credit directly from the Federal Reserve System must make "H-1B Dependent Employer" attestations on the Labor Condition Applications  Additional attestations required on the USCIS portion of the application

Klasko, Rulon, Stock & Seltzer, LLP The H-1B and TARP Recipients H-1B employers must attest that:  They took good faith steps to recruit U.S. workers  No U.S. worker was displaced by the H-1B worker either at the employer's worksite or at any outside worksite where the employer has placed an H-1B worker.

Klasko, Rulon, Stock & Seltzer, LLP The H-1B and TARP Recipients  Does not apply to H-1B extensions  2 year program, ending on February 16, 2011  Does not apply to Change of Status if employee is already working with employer  No clear guidance on whether it applies to employers who have repaid TARP funds  List of TARP recipients is available at: html  (Note: This Web site lists recipients of TARP funding, but not recipients of direct Federal Reserve credit, so it is not all-inclusive).

Klasko, Rulon, Stock & Seltzer, LLP TARP and Student Issues TARP provisions apply only to H-1B employees:  Students working on OPT not affected  Other Nonimmigrant visa categories not affected

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

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)

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

Klasko, Rulon, Stock & Seltzer, LLP H-1B Issues for Start-Up Business H-1B Quota  Past years- lottery  visas still available  What it means for you  Employment during “cap gap” (cont’d)

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

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

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

Klasko, Rulon, Stock & Seltzer, LLP ■ Treaty investors (E-2)  “Substantial” investment  No exact amount  Varies depending upon type of investment  Business plan and financial projections critical (cont’d) Other Nonimmigrant (Temporary) Options Treaty (E) Visas

Klasko, Rulon, Stock & Seltzer, LLP Other Nonimmigrant (Temporary) Options Treaty (E) Visas ■ Treaty investors (E-2)- cont.  Relevant issues  Amount of investment  Number of employees  Needs of business  Likely profitability and growth potential

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

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 for L-1A or 5 years for L-1B

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)

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

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 own company ■Length of visa  3 years  1 year extensions  Can extend indefinitely

Klasko, Rulon, Stock & Seltzer, LLP Termination of Employment Upon termination, non-immigrant employee loses legal status. May be required to leave the U.S. unless the employee finds a new employer willing to file a new petition on their behalf on a timely basis, or is able to obtain a different nonimmigrant status.  No grace period  Certain employees (H-1B, O-1) terminated before the end of their period of authorized stay are entitled to “reasonable costs” of return transportation to last country of residence

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

Klasko, Rulon, Stock & Seltzer, LLP Quotas Per country of birth, per preference category, per fiscal year Filing date is “priority date” Job requirements and not your credentials determine the preference category

Klasko, Rulon, Stock & Seltzer, LLP Permanent Residency Quotas, Where Are We Now? Visa Bulletin for December 2009 All Chargeability Areas Except Those Listed CHINA- mainland born INDIAMEXICO PHILIPP- INES Employment Based 1stCCCCC 2ndC22MAR0522JAN05 CC 3rd01JUN0222FEB0215APR0101MAY0201JUN02 Other Workers 01JUN01 15APR0101JUN01 4thCCCCC

Klasko, Rulon, Stock & Seltzer, LLP Quotas EB-1 (extraordinary ability, outstanding researcher or professor multinat’l manager)  No quota wait EB-2  National Interest Waiver  Labor certification requiring Advanced degree + Exceptional ability  No quota wait, except China and India EB-3  Labor certification requiring BA or 2 yrs experience  Long quota wait for all countries (cont’d)

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

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

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Extraordinary Ability/EB-1 (I-140, filing fee $475)  “One of a Few at the Top”  Factors Considered in Initial Evaluation Publications Material/ Press About the Work Conference Presentations Judge of the Work of Others High Salary References from Independent Experts Documenting Regulatory Criteria  Preparation/Processing Times

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

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment National Interest Waiver/EB-2 (I-140, filing fee $475)  Three Prong Test Field is of Substantial Intrinsic Merit National Impact of Your Contributions You Are “Substantially Better” Than Your Peers  Extensive documentation required  Reference letters critical

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-1A except must be manager or executive overseas (cont’d)

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)

Klasko, Rulon, Stock & Seltzer, LLP Termination of Employment Implications depend on where you are in the permanent residency process Certain cases can “port” to a new employer

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

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)

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)

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)

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 (cont’d)

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)

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

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 Can file for spouse and child Can get Employment Authorization Document (EAD) (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Questions ?

Klasko, Rulon, Stock & Seltzer, LLP For Further Information Suzanne Seltzer, Esq. Klasko, Rulon, Stock & Seltzer, LLP Kate Kalmykov, Esq. Klasko, Rulon, Stock & Seltzer, LLP (New York)