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Bank of America Merrill Lynch Webinar Series

© Sheppard Mullin Richter & Hampton LLP 2014

DISCLAIMER:

This presentation was written by a third party not affiliated with Bank of America Merrill Lynch or any of its affiliates and is for information and educational purposes only. The opinions and views expressed do not necessarily reflect the opinions and views of Bank of America Merrill Lynch or any of its affiliates. Any assumptions, opinions and estimates are as of the date of this material and are subject to change without notice. The information contained in this material does not constitute advice on the tax consequences of making any particular investment decision. This material does not take into account your particular investment objectives, financial situations or needs and is not intended as a recommendation, offer or solicitation for the purchase or sale of any security, financial instrument, or strategy. Before acting on any recommendation in this material, you should consider whether it is suitable for your particular circumstances and, if necessary, seek professional advice.

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Agenda

Introductions Overview of Immigration Policy Visa Basics and Survey H-1B Overview H-1B Policy Outlook

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Presenter

Jonathan MeyerPartnerWashington, DC Office 2099 Pennsylvania Avenue, NWSuite 100Washington, DC 20006TEL: 202.747.1920jmeyer@sheppardmullin.com

Jonathan Meyer is a partner in the Government Contracts, Investigations & International Trade Practice Group in the firm's Washington, DC office, and a member of the Privacy & Cybersecurity Team. Jon was most recently Deputy General Counsel at the U.S. Department of Homeland Security (DHS), where he advised the Secretary, Deputy Secretary, General Counsel, Chief of Staff and other senior leaders of the agency on law and policy issues, including immigration reform, cyber security, high technology, airline security, drones, encryption and intelligence law. In this position, he supervised attorneys at Customs and Border Protection (CBP), the Federal Emergency Management Agency (FEMA), the Transportation Security Administration (TSA), Immigrations and Customs Enforcement (ICE), the Secret Service, and the Coast Guard, among others.

Previously, Jon served as Deputy Assistant Attorney General in the Office of Legal Policy at the U.S. Department of Justice, Special Deputy General Counsel at Amtrak, and Counsel to Senator Joseph R. Biden, Jr., on the Senate Judiciary Committee. Earlier, he worked in private practice for seven years as a litigator and corporate lawyer, as well as an aide to Congressman Bill Gradison of Ohio.Education J.D., Columbia University Law School, 1992 M.P.A., Princeton University, 1992 B.A., Harvard College, 1986

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PresenterGreg Berk is a special counsel in the Labor and Employment Practice Group in the firm's Orange County office, where he leads the firm's immigration practice. He is a Certified Specialist in Immigration and Nationality Law by the State Bar of California Board of Legal Specialization.

Areas of PracticeGreg has many years of experience advising on U.S. immigration matters. He and his team jump to meet the short filing window that clients frequently face and they also try hard to simplify the immigration process. He is a frequent author and speaker on immigration matters and developments.

Education J.D., Western State University College of Law 1990 M.B.A., George Washington University 1984 B.A., California State University 1982

Greg BerkSpecial CounselOrange County Office650 Town Center DriveFourth FloorCosta Mesa, CA 92626TEL: 714.424.2877gberk@sheppardmullin.com

Agenda

Introductions Overview of Immigration Policy Visa Basics and Survey H-1B Overview H-1B Policy Outlook

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Basic Immigration Facts

Approximately 11 million illegal immigrants in U.S.

15% of LPR admissions are job-based. 13% refugees/asylum 64% through family ties to US persons 5% through diversity lottery for under-

represented countries

Migration Policy Institute, 2014

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Security

Protect U.S. workers

Protect U.S. wages

Limit visa eligibility

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Overview: Trump Administration Priorities

Trump Administration: What We’ve Seen and What’s Coming

Stricter immigration climate− Enforcement

• Enforcement E.O.• Stepped up enforcement, hiring

− More audits by DOL and USCIS Travel Ban E.O.

− First version blocked by the courts− Rewrite coming, maybe

• Stronger legally• But still difficulties

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Trump Administration: What We’ve Seen and What’s Coming

Talk of Merit-Based System− More emphasis on qualifications and education− Less on low-skilled labor− E.g., Canadian system based on points for merit− Would lead to more employment-based visas, less

based on family ties− Mentioned “financial self-sufficiency for immigrants” in

address to Congress− Not clear this would be good for economy – need for

low/un-skilled labor

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Agenda

Introductions Overview of Immigration Policy Visa Basics and Survey H-1B Overview H-1B Policy Outlook

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Visa Waiver: Visitor Visas for Business

Certain Countries Qualify (ESTA)

Can Come for 90 Days Without Visa

Must Be Paid by Overseas Co.

Can’t Work in the U.S.

Careful of back-to-back entries

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B-1 Visitor Visa for Business

Can Visit for Up to 6 months

Must Show Ties to Home Country

Must Have Valid Business Purpose

Meetings, Conferences and Training

Can’t Work in the U.S.

Must Be Paid by Overseas Co.

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B-1 Visitor Visa for Business

Staying more than a few weeks, DOL may scrutinize wage & hour compliance.

Joint Employer issue if U.S. entity controls or benefits from the work.

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Optional Practical Training (OPT)

For F-1 Students After Graduation OPT ‒ 12 Months Max Requires Work Permit from USCIS Apply Early – 3 Months Prior to Grad Usually Transition to H-1B Professional Then PERM Labor Cert/Green Card

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OPT – Stem Extensions

Regular OPT only good for 1 Year

Can get 24 month ext. for STEM majors

Can get 3 bites at the H-1B apple

STEM Employer must use E-verify for STEM & prepare Training Plan

STEM extension could be curtailed

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E-3 Australia Free Trade Agreement

Citizens of Australia

H-1B Professional Positions

Apply at U.S. Consulate in Australia

Valid for 2 years. Eligible for Unlimited Extensions

Spouse Can Get Work Permit

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H-1B1 Singapore/Chile FTA

For Citizens of Singapore or Chile

Same criteria as H-1B

Annual Quota Never Reached

Admission for 1 Year at a Time

No Limit on Renewals

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TN Status – NAFTA Agreement Trade NAFTA Visa (TN)

Canadian and Mexican Citizens

Occupation Must Be on NAFTA List

Computer Systems Analyst & Engineer on the List

Canadian Citizens Apply at U.S. Border or with USCIS

Mexican Citizens Apply at U.S. Consulate in Mexico

Valid for 3 Years & No Max on Extensions

Spouse / Children Get TD Status ‒ Can’t Work

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L-1 Intra-Company Transferee

L-1A Executive or Sr. Manager ‒ 7 Years Max Worked for Overseas Affiliate 1 Yr of last 3 years

L-1B – Specialized Knowledge Worker Must show skills and knowledge not easily available in

U.S. and time is of the essence Worked for overseas affiliate 1 Yr in last 3 5 Years max for L-1B Spouse gets work permits for both L-1A & L-1B

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O-1 Extraordinary Ability

Not Subject to Quotas

Extraordinary Ability: Top of Their Field in Sciences, Arts, Education, Biz or Athletics

Evidence of awards, publicity, success, high salary, original contributions, critical roles for prestigious organizations etc.

Valid for 3 Years. No max on Extensions

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E-2 Investor Visa

Need treaty between U.S. and other country No treaty with India or China U.S. corp must be 50% owned by treaty nationals Substantial investment $150K + Business plan to hire U.S. workers over time E-2 applicant must have same nationality as treaty Principal investor (Individual or Company) Manager Essential employee Spouse Can Get Work Permit (could change)

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Permanent Residency (Green card)

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Quota system -- nationality & job requirements PERM labor cert. (prove shortage to DOL) Extraordinary Ability (EB-1) Multinational Managers (EB-1) Outstanding Researchers (EB-1) Exceptional Ability (EB-2) EB-5 Investor ($1.8M urban / $1.35 M TEA) Family sponsorship Asylum Diversity Lottery

Agenda

Introductions Overview of Immigration Policy Visa Basics and Survey H-1B Overview H-1B Policy Outlook

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H-1B Visa

Common Visa for Professionals Have College Degree in the Field Practical Application of Theoretical Knowledge Examples:

− Software Developers− Engineers− Analysts− Medical professionals

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H-1B Visa

Good for 3 Years

Renewable for 3 Additional Years

6 Year Maximum. Eligible for 7th Year Ext. if labor cert pending with DOL 1 Year

3 Year Ext. if I-140 petition approved

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H-1B Quotas

Quota Quickly Used Up in Recent Years Fills up on 1st day 25% Chance of Getting into Quota unless have

U.S. Masters, then 35% chance 65,000 visas for Bachelors Degrees 20,000 visas for U.S. Masters Un-used Singapore / Chile H-1B numbers Cap Exempt filings

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Exemptions From H-1B Quota

H-1B Transfers to new Employer Universities Non-Profit Affiliated with University Incubators Affiliated with University Non-Profit Research Organization Government Research Organization

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H-1B Dependency Rules

H-1B Dependent ER’s must recruit U.S. workers if:

≤ 25 FTE EE’s and 8+ H-1B’s

26 to 50 EE’s and 13+% H-1B’s

51+ EE’s and 15+ % H-1B’s

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H-1B Dependency Rules

H-1B Dependent employers must attest in the LCA they are not displacing U.S. workers

Must take good faith steps to recruit U.S. workers

Exempt if salary is $60K+ or EE has Masters

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DOL 4 Level Wage Scheme

San Jose-Sunnyvale-Santa Clara, CA MSA

Software Developers, Systems Software

Level 1 Wage: $49.09 hour - $102,107 yearLevel 2 Wage: $58.91 hour - $122,533 yearLevel 3 Wage: $68.72 hour - $142,938 yearLevel 4 Wage: $78.54 hour - $163,363 yearMean Wage (H-2B): $68.73 hour - $142,958 year

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H-1B Filing Fees

I-129 Petition fee: $460 I-907 Premium Processing: $1,225 Fraud Prevention Fee: $500 ACWIA Training Fee: $750 / $1,500 Public Law 114-113: $4,000 per H-1B and

$4,500 per L-1 employers 50+ EE’s, and 51%+ are H-1B or L-1

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Long-term H-1B EE’s

Very long backlogs for green cards AC-21 allows EE to remain in H-1B with

approved I-140 or PERM pending 1 year With I-140 approval or PERM pending 1 year

then H-4 spouse can get EAD New regs eff Jan 17 could allow EAD for spouse

if they prove hardship EAD’s for spouses could be challenged

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H-1B Facts and Figures

Cap History− Before FY 99: 65,000− FY 99: 115,000− FY 00: 115,000− FY 01: 195,000− FY 02: 195,000− FY 03: 195,000− Since 03: 65,000+20,000 for master’s degree or higher

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Petition Approval History− FY 11: 269,653− FY 12: 262,569− FY 13: 286,773− FY 14: 315,857− FY 15: 275,317

− 13% decrease− (but 9% increase in

applications)− 113,603 for initial

employment

H-1B Facts and Figures

Actual new H-1B arrivals yearly: about 115,000− Includes cap exemption for non-profits

Cap Applicants: 250,000 per year Education level: 45% BA, 44% MA, 7%

doctorate, 3% professional degree Job sectors: 67% computer-related

− Other occupations 9% or below Median salary: $79,000 (up $4,000 from FY14) Countries: India 71%, China 9.7%

− Every other country 1.3% or below

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Agenda

Introductions Overview of Immigration Policy Visa Basics and Survey H-1B Overview H-1B Policy Outlook

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The President’s Position

Candidate Trump said H-1B should not exist.− “I will end forever the use of the H-1B as a cheap

labor program, and institute an absolute requirement to hire American workers first for every visa and immigration program. No exceptions.” March 2016

But reportedly agreed to fix the H-1B program at meeting with tech execs. December 2016

But Spokesman Spicer has said illegal immigration is the priority.

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Potential Administrative Action

Enhanced enforcement - audits Draft Executive Order (leaked)

− Calls for review of program, report within 90 days with suggestions on how to make the program more efficient and how to allocate the visas.

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H-1B legislation

Issues –− Demand for H-1B visas outstrips supply− Distribution is random (lottery) rather than objective− Critics believe it has been “hijacked” by outsourcing

companies• Used to replace U.S. workers for cheaper foreign labor

− Options for permanent stay differ by country of origin

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H-1B legislation

Grassley-Durbin – aimed at prioritizing U.S. workers− prohibit companies with more than 50 employees, of

which at least half are H-1B or L-1, from hiring more.− Prohibits displacement of U.S. workers by H-1B.− Directs USCIS to prioritize based on U.S. education,

advanced degree, high wage, advanced skills.− Enhanced DOL audit authority

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H-1B legislation

Issa –− Eliminates advanced degree requirement for exempt

H-1B’s, but raises their salary threshold to $100K from $60K, with inflation adjustment every 3 years.

− Supported by Consumer Technology Association− Reportedly has the votes to pass the House.

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H-1B legislation

Lofgren –− Eliminates advanced degree requirement for exempt

H-1B’s, but raises their salary threshold to c. $130K from $60K, with automatic inflation adjustment.

− Prioritizes H-1B’s based on pay. Pay more, higher priority.

− Sets aside 20% for small business (50 or fewer employees)

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H-1B legislation

Comprehensive Immigration Reform – the gorilla in the room− Would likely bind H1-B reform’s fate to it

• As happened in 2013− Could be useful vehicle, but could be death knell.− Unclear if Trump will really push it, and if Dems would

go along.

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Greg Berk, Esq.Special CounselSheppard Mullin714.424.2877gberk@sheppardmullin.com

Jonathan Meyer, Esq.PartnerSheppard Mullin202.747.1920jmeyer@sheppardmullin.com

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