Visa and Permanent Residence Options for the Entrepreneurial Student Harvard Business School

Visa and Permanent Visa and Permanent Residence OptionsResidence Options for the Entrepreneurial Student

Harvard Business School

H. Ronald Klasko, Esq.Klasko, Rulon, Stock and Seltzer, LLPKlasko, Rulon, Stock and Seltzer, LLP

Philadelphia New York1800 JFK Blvd. Suite 1700 317 Madison Ave. Suite 1518Philadelphia, PA 19103 New York, NY 10017215.825.8600 212.796.8840

www.klaskolaw.com

Klasko, Rulon, Stock & Seltzer, LLP

H. Ronald Klasko, Esq.

Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to universities, hospitals, and research institutions for over 25 years.

Ron is a past National President of the American Immigration Lawyers Association and served for 3 years as the bar association’s General Counsel. His firm is the first immigration law firm global partner of NAFSA: Association of International Educators. Mr. Klasko has been invited by more than 25 universities and hospitals to address students and scholars.

Ron has been selected as one of six top tier immigration lawyers in the US by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers 2007 and 2008 Corporate Immigration Law edition selected Ron as the “most highly regarded” immigration lawyer in the world. He is a frequent author and lecturer on hospital and university-related immigration law topics and is a former Adjunct Professor of Immigration Law at Villanova University Law School.

Ron is a graduate of the University of Pennsylvania School of Law


2009 Issues

■ Fewer job offers■ H-1B quota■ 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■ Options for the entrepreneur

On-campus employment must be services for students

OPT employment must be related to studiesSee “Murky F-1 Employment Issues” (

http://www.klaskolaw.com)


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 employeeCompany 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 years2009What it meansEmployment during “cap gap”

(cont’d)



Quota-exempt H-1B Non-profit company

“Affiliated” with university Research organization

Employed “at” university or other quota- exempt employer

Concurrent employment Previous H-1B

(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


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)


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 be own company

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


Permanent Resident Status

Family Employment Investment Asylum Lottery


Quotas

Per country of birth, per preference category, per fiscal year

Filing date is “priority date” EB-1 (extraordinary ability, outstanding

researcher, multinational manager) No quota wait


Quotas

EB-2 National interest waiver Labor certification requiring

Masters degree Bachelors degree plus 5 years progressive experience, or Exceptional ability

No quota wait, except China and India

EB-3 Labor certification requiring bachelors or 2 years

experience Long quota wait for all countries

(cont’d)


Investment (EB-5) http://www.eb5immigration.com

No quota delay Amount of investment

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


Investment (EB-5)

Type of investmentGenerally cash“At risk”Cannot use debt with investment enterprise

as collateral

(cont’d)


Investment (EB-5)

Type of businessActive businessNew business or expansion of existing

business 40% increase in net worth or number of employees

(cont’d)


Investment (EB-5)

Employment creation10 new or 10 additional full-time jobsU.S. citizens or permanent residentsSaving 10 jobs in “troubled business”

(cont’d)


Investment (EB-5)

Lawful source of funds Extensive documentation required Can be gift

Must prove giftor's source of funds

Can borrow money

(cont’d)


Investment (EB-5)

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

Cannot be purely passive Limited partner ok

(cont’d)


Investment (EB-5)

Two possibilities Individual investment

See above

Regional center investment Approximately 30 USCIS – approved regional

centers Mostly $500,000 investment Indirect employment creation ok

(cont’d)


Investment (EB-5)

Some have long, successful history – some do not

Pilot program Choosing a regional center

Due diligence list at http://www.eb5immigration.com/choosing-a-regional-center.php

(cont’d)


Investment (EB-5)

Choosing between individual and regional center investment

http://www.eb5immigration.com/regional-centers-vs-individual-eb-5.php

(cont’d)


Permanent Resident StatusEmployment

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

interest/exceptional Multiple petitions



Self-SponsoredExtraordinary ability

EB-1 Extensive documentation required Reference letters critical

(cont’d)



National Interest Waiver EB-2 Standard

Exceptional ability or advanced degree National priority National impact

Extensive documentation required Reference letters critical

(cont’d)



Employer-SponsoredOutstanding Researcher or Professor

EB-1 “Permanent position” Similar to extraordinary ability

Multinational Manager EB-1 Same as L-1 except must be manager or executive

overseas

(cont’d)



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)



Timing Electronic filing Possibility of audit First of three steps

(cont’d)



I-140 Petition 1st step for EB-1 and national interest waiver 2nd step for PERM

Employee documents education and experience If adjustment of status, file concurrently with I-485 if

quota current If consular immigrant visa processing, approval sent to

National Visa Center

(cont’d)



I-485 (Application for Adjustment of Status to Permanent Resident)Cannot file until quota is current Importance of filing

Do not need to maintain visa status Can file for spouse and child Can get Employment Authorization Document (EAD)

(cont’d)



Can get advance parole travel document Eliminate need to obtain visas Can still maintain and extend H-1B status

Can leave employer if I-140 approved I-485 pending 180 days Similar occupation

Permanent resident upon approval Timing and delay issues

(cont’d)


Questions?


For Further Information

H. Ronald Klasko, Esq.Klasko, Rulon, Stock & Seltzer, LLP

[email protected]

215-825-8600 (Philadelphia)

212-796-8840 (New York)

www.klaskolaw.comwww.eb5immigration.com

Visa and Permanent Residence Options for the Entrepreneurial Student Harvard Business School

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