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Visa and Permanent Residence Options for the Entrepreneurial Student

Learn about visa and permanent residence options for entrepreneurial students, including H-1B, treaty visas, and L-1 visas. Find out about H-1B quota, TARP recipients, start-up businesses, and other nonimmigrant options.

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Visa and Permanent Residence Options for the Entrepreneurial Student

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  1. Visa and Permanent Residence Optionsfor the Entrepreneurial Student Suzanne Seltzer, Esq. Kate Kalmykov, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd., 17th Floor 317 Madison Ave., Suite 1518 Philadelphia, PA 19103 New York, NY 10017 215.825.8600 212.796.8840www.klaskolaw.com

  2. 2009-2010 Issues • Fewer job offers • H-1B quota • Effect of TARP requirements on H-1Bs • Impact of layoffs • Increased opportunities for investors and entrepreneurs

  3. H-1B • Basic requirements • Procedure and processing times • Specialty occupation issues • Part-time or full-time • Length of approval • Extensions • Portability • Travel

  4. 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

  5. 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

  6. 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.

  7. 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: http://www.financialstability.gov/latest/reportsanddocs.html • (Note: This Web site lists recipients of TARP funding, but not recipients of direct Federal Reserve credit, so it is not all-inclusive).

  8. TARP and Student Issues • TARP provisions apply only to H-1B employees: • Students working on OPT not affected • Other Nonimmigrant visa categories not affected

  9. 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

  10. H-1B Issues for Start-Up Business (cont’d) • Company must prove • Financial ability to pay salary • Profits and/or capitalization • Real job to be done by H-1B • Place of business

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

  12. H-1B Issues for Start-Up Business (cont’d) • H-1B Quota • Past years- lottery • 2009- visas still available • What it means for you • Employment during “cap gap”

  13. Other Nonimmigrant (Temporary) Options Treaty (E) Visas • Must be national of treaty country • http://www.travel.state.gov./visa • Company must be owned at least 50% by treaty country nationals

  14. Other Nonimmigrant (Temporary) Options Treaty (E) Visas (cont’d) • Visa for 1 to 5 years • Each entry limited to two years • Visa and entry can be extended indefinitely • No quota • Spouse can work

  15. Other Nonimmigrant (Temporary) Options Treaty (E) Visas • 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)

  16. Other Nonimmigrant (Temporary) Options Treaty (E) Visas • Treaty investors (E-2) • “Substantial” investment • No exact amount • Varies depending upon type of investment • Business plan and financial projections critical (cont’d)

  17. 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

  18. Other Nonimmigrant (Temporary) Options Treaty (E) • Visa applicant can be • Investor or • Manager, supervisor or essential employee (cont’d)

  19. 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

  20. Intracompany Transferee (L-1) Visas (cont’d) • 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

  21. Intracompany Transferee (L-1) Visas (cont’d) • Start-up issues • Place of business • Employees • Capitalization • Need for “manager” • Business plan and financial projections

  22. 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

  23. 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

  24. Permanent Resident Status • Family • Employment • Investment • Asylum • Lottery

  25. 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 Quotas

  26. Permanent Residency Quotas, Where Are We Now? Visa Bulletin for December 2009

  27. 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 Quotas (cont’d)

  28. Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions Permanent Resident StatusEmployment

  29. Self-Sponsored Extraordinary Ability EB-1 Extensive documentation required Reference letters critical Permanent Resident StatusEmployment (cont’d)

  30. Permanent Resident StatusEmployment 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

  31. National Interest Waiver EB-2 Standard Exceptional ability or advanced degree National priority National impact Permanent Resident StatusEmployment (cont’d)

  32. Permanent Resident StatusEmployment 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

  33. 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 Permanent Resident StatusEmployment (cont’d)

  34. 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 Permanent Resident StatusEmployment (cont’d)

  35. Termination of Employment • Implications depend on where you are in the permanent residency process • Certain cases can “port” to a new employer

  36. Investment (EB-5) http://www.eb5immigration.com • No quota delay • Amount of investment • $1,000,000 or • $500,000 in “targeted employment area”

  37. Investment (EB-5) (cont’d) • Type of investment • Generally cash • “At risk” • Cannot use debt with investment enterprise as collateral

  38. Investment (EB-5) (cont’d) • Type of business • Active business • New business or expansion of existing business • 40% increase in net worth or number of employees

  39. Investment (EB-5) (cont’d) • Employment creation • 10 new or 10 additional full-time jobs • U.S. citizens or permanent residents • Saving 10 jobs in “troubled business”

  40. Investment (EB-5) (cont’d) • Lawful source of funds • Extensive documentation required • Can be gift • Must prove giftor's source of funds

  41. Investment (EB-5) (cont’d) • 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

  42. Investment (EB-5) (cont’d) • Two possibilities • Individual investment • See above • Regional center investment • Approximately 30 USCIS – approved regional centers • $500,000 investment • Indirect employment creation ok

  43. 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) Permanent Resident StatusEmployment (cont’d)

  44. Questions ?

  45. For Further Information Suzanne Seltzer, Esq. Klasko, Rulon, Stock & Seltzer, LLP sseltzer@klaskolaw.com Kate Kalmykov, Esq. Klasko, Rulon, Stock & Seltzer, LLP kkalmykov@klaskolaw.com 212-796-8840 (New York) www.klaskolaw.com

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