immigration considerations the impact of the recession on the foreign national community:...

The Impact of the Recession on the Foreign National

Community:Immigration ConsiderationsImmigration Considerations

Kate Kalmykov, Esq.Klasko, Rulon, Stock & Seltzer, LLPKlasko, Rulon, Stock & Seltzer, LLP

Philadelphia New York1800 JFK Blvd., 17th Floor 317 Madison Ave., Suite 1518Philadelphia, PA 19103 New York, NY 10017215.825.8600 212.796.8840

www.klaskolaw.com

Klasko, Rulon, Stock & Seltzer, LLP

2009 Issues

■ Fewer job offers■ H-1B quota■ Effect of TARP requirements on H-1Bs■ Impact of layoffs■ Increased opportunities for investors and

entrepreneurs


Employment Options for the F-1 Student

■ 20 hours per week on campus■ OPT after complete studies

■ 90 day rule■ STEM Extension

■ 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)


H-1B

Basic requirements Procedure and processing times Specialty occupation issues Part-time or full-time Length of approval Extensions Portability Travel


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


The H-1B and TARP Recipients

American Recovery and Reinvestment Act of 2009 requires employers who accept TARP or FRA Section 13 funds to make additional attestations on the LCA when hiring H-1Bs.

H-1B employers must attest that they took good faith steps to recruit U.S. workers and that no U.S. worker was displaced by the employment of an H-1B worker either at the employer's own worksite or at any outside worksite where the employer has placed an H-1B worker.


The H-1B and TARP Recipients

The Federal government is expected to introduce additional programs under FRA Section 13 that will be open to both U.S. entities and qualifying U.S. branches and subsidiaries of foreign entities. One such program is the Term Asset-Backed Securities Loan Facility (TALF), which will offer discounted Federal Reserve loans to eligible borrowers.


The H-1B and TARP Recipients The Specifics:

This provision 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 including on OPT Cap subject filings for FY2010 must include addt’l

attestations List of TARP recipients is available at

http://www.financialstability.gov/latest/index.html (Note: This Web site lists recipients of TARP funding, but not recipients of

direct Federal Reserve credit, so it is not all-inclusive). It is best to discuss with the prospective employer if they are considered a TARP recipient.


TARP and Student Issues

TARP provisions apply only to H-1B employees: Students working on OPT not affected

Some employers are rescinding offers to these students b/c eventually they will need to file H-1B to keep the employee

Other Nonimmigrant visa categories


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



Company must proveFinancial ability to pay salary

Profits and/or capitalization

Real job to be done by H-1BPlace of business

(cont’d)



Importance of business plan/financial projections

Other employees helpful – not required Prevailing Wage

CEO vs. function-descriptive position

(cont’d)



“Specialty Occupation”Use of concepts learned in courses

H-1B QuotaPast years2009- CAP not reachedWhat it meansEmployment during “cap gap”

(cont’d)


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


(cont’d)


Visa for 1 to 5 yearsEach entry limited to two yearsVisa and entry can be extended indefinitely

No quota Spouse can work


■ Treaty traders (E-1)“Substantial” import or exportMajority between U.S. and treaty countryCan be manager, supervisor or “essential

skill” employee

(cont’d)



■ 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)



■Visa applicant can be Investor orManager, supervisor or essential employee

(cont’d)

Other Nonimmigrant (Temporary) Options Treaty (E)


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/ 5 years for L-1B


Intracompany Transferee (L-1) Visas

■ Must be “international” businessBusiness outside U.S. with at least 50%

common ownershipMust be employed by that business one year

■ Type of employment (in U.S. and overseas companies)Manager or executive“Specialized knowledge” employee

(cont’d)


Intracompany Transferee (L-1) Visas(cont’d)

Start-up issues Place of business Employees Capitalization Need for “manager” Business plan and financial projections


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


Termination of Employment

Upon termination, employee loses legal status and may be required to leave the U.S. unless the employee finds a new employer willing to file a new petition on his or her behalf on a timely basis, or is able to obtain a different nonimmigrant status. No grace period If employer terminates H1-B employee before the end of that

employee’s period of authorized stay, employer is responsible for the “reasonable costs” of return transportation to last country of residence

For permanent residence process implications depend on where you are in the process


Questions?


For Further Information

Kate Kalmykov Esq.Klasko, Rulon, Stock & Seltzer, LLP

[email protected]

212-796-8840 (New York)

www.klaskolaw.com

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