post student years: immigration options february 2011 klasko, rulon, stock & seltzer, llp kate...

Post Student Years: Immigration Options

February 2011

Klasko, Rulon, Stock & Seltzer, LLP

Kate Kalmykov, Esq.

Philadelphia – New York


Hot Topics in Immigration Law Agenda

H-1B Visas H-1B Requirements H-1B Alternatives Introduction to Permanent Residency EB-5 Immigration Through Investment Q&As


H-1B Visas

Basic requirements Job Offer Prevailing Wage Bachelors or higher degree Specialty occupation

Procedure and processing times


H-1B Visas

Part-time or full-time Length of approval Extensions Portability Spouses and Employment Authorization Travel


H-1B Quota

What is it and what does it mean? 20,000 for US awarded advanced degrees 65,000 H-1Bs

FY 2010 gone by December 2009 FY 2011 gone by January 2011 FY2009 gone by April 2008 FY2008 gone by April 2007 FY2007 gone by May 2006


Travel and Status Issues for H-1B Approvals

Change of status vs. consular visa issuance Travel after April 1 Maintaining status until October 1

“Cap gap” relief


2011 Issues(FY2012 H-1Bs)

■ Fewer job offers■ Impact of layoffs■ Increased USCIS scrutiny of petitions filed by

investors and entrepreneurs■ Increased scrutiny of third-party worksites■ TARP – no longer an issue b/c it expires

2/2011


H-1B Issues for Start-Ups

Must establish company with employer tax I.D. number

Can company be owned by H-1B employee? Must be W-2 employee Company separate entity from owner/employee

Company right of control over employee

Company must prove Financial ability to pay salary Real job to be done by H-1B Place of business


H-1B Issues for Start-Ups

Other employees or owners required? Ability to hire/fire

Importance of business plan/financial projections Prevailing Wage

CEO vs. function-descriptive position


Avoiding H-1B Quota

Exemption based on employer Universities Non-profits affiliated with universities

Increased scrutiny of affiliations Non-profits or gov’t research organizations or place of employment, law says “at”


Avoiding H-1B Quota

Exemption based on employee Previously counted Singapore/Chile Concurrent employment


Can’t avoid the quota, planning strategies?

Filing April 1 for Oct 1 start date CAP GAP Relief

Going from quota exempt to quota subject Portability? Concurrent employment? Working “at” University or non-profit


Other Nonimmigrant (Temporary) Options

Treaty (E) Visas■ Must be national of treaty country

http://www.travel.state.gov./visa

■ Owned at least 50% by treaty nationals

■ Eligible if ■ Owner/Investor or

■ Manager, supervisor or essential employees



Treaty (E) Visas Two Options: E-1 Treaty Trader E-2 Treaty Investor

Visa for 1 to 5 years Each entry limited to two years Visa and entry can be extended indefinitely

Spouse eligible for employment authorization


■ Treaty traders (E-1) “Substantial” import or export Majority of trade between U.S. and treaty country For manager, supervisor or “essential skill”

employees


Treaty (E) Visas



Treaty (E) Visas■ Treaty investors (E-2)

“Substantial” investment Amount Varies depending upon investment For start up business plan & financial projections critical

Number of employees Needs of business Likely profitability and growth potential


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



■ Spouse eligible for EAD■ 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



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


Mexican & Canadian NAFTA Professional Worker (TN) Visa Allows citizens of Canada and Mexico to work in

the U.S. as NAFTA professionals Profession must be on the NAFTA list Position in the U.S. requires a NAFTA

professional Must have employer sponsor Applicant has to have qualifications of the

profession


More Alternatives to H-1B

Alternative Employment Visas: O-1 E-3 (Australians) J-1 (limited applicability) I visa (journalists – disseminate news abroad) OPT Extension- STEM


More Alternatives to H-1B

Alternative Visa Options (cont’d) EAD through spouse’s status

J-2 E L-2 I-485


What is Permanent Residency?

Authorization to Live & Work Indefinitely in the United States

“Immigrant Visa” The “Green Card” or “Form I-551” Not always ‘forever’ – may be abandoned or

taken away


Immigrant Versus Non-Immigrant Visas Immigrant Visa

Green Card/Permanent Residency

Non-Immigrant Visa (NIV) H, F, J, O, etc Limited duration Specific to employer/institution Specific to purpose (work/study/tourism)


Permanent Residency Quotas

Annual Limit on Permanent Residency Per Country Limit – 7% Allocated by:

Priority Date – place in line Preference Category


How Do I Apply?

Family Investment Asylum Employment


Permanent Residency Quotas Employment Based Preference Categories:

First Preference (EB-1) Extraordinary Ability, Outstanding Researcher,

Multinational Executive Second Preference (EB-2)

Nat’l Interest Waivers, Advanced Degreed Professionals, Bachelors plus 5 years exp.

Third Preference (EB-3) Skilled Worker (2+ years experience), Bachelor’s Degree

Fifth Preference (EB-5) Investment in the U.S. that creates at least 10 U.S. jobs


Permanent Residency Quotas,Where are We Now? “Oversubscribed” versus “Available”

Available if: Visa Bulletin indicates “C” = current Priority date earlier than posted date


Permanent Residency Quotas,Where are We Now?

All Chargeability Areas Except Those Listed

CHINA-mainland born

INDIA MEXICO

PHILIPP-INES/ DOMINICAN REPUBLIC

EmploymentBased

1st C C C C C

2nd C 08JUL06 08MAY06 C C

3rd 01JUL05 22JAN04 15MAR02 08JAN04 01JUL05

5th C C C C C

Visa Bulletin March 2011


EB-5:Greencard Through

Investment No quota delay Amount of investment

$1,000,000 or $500,000 in “targeted employment area”

Type of investment Generally cash “At risk”


EB-5:Greencard Through

Investment Employment creation 10 new or 10 additional full-time jobs U.S. citizens or permanent residents

Lawful source of funds Extensive documentation required Can be gift

Must prove giftor's source of funds Can borrow money


EB-5: Greencard Through

Investment Nature of investor’s relationship to business Do not have to be employee (but can) Do not have to be owner (but can)

Two possibilities Individual investment

See above Regional center investment

Over 100 USCIS – approved regional centers Mostly $500,000 investment Indirect employment creation ok


Employment Based (EB) Permanent Residency Considerations

Employer-sponsored or self-sponsored Labor certification or extraordinary/national

interest/exceptional/ EB-5 Multiple petitions Multi-Step Process Non-Immigrant Status?


Travel Issues

Potential Problems Intent to return – F & J vs. H &O Visa interview delays (PIMS) Security clearances Technology Alert List 222(g)


Contact Information

Kate Kalmykov, Esq. Telephone: 212-796-8856 Fax: 212-297-1799 Email: [email protected]

Websites: www.klaskolaw.com http://blog.klaskolaw.com www.eb1immigration.com www.eb5immigration.com

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post student years: immigration options february 2011 klasko, rulon, stock & seltzer, llp kate...

Documents

stock seltzer

b visas h

b requirements h

llp travel

b issues

b employee

b place of business

nonprofit slide