Visa and Permanent Residence Options Harvard Business School Visa and Permanent Residence Options...

Visa and Permanent Visa and Permanent Residence OptionsResidence Options for the

MBA Graduate

Harvard Harvard Business Business SchoolSchool

H. Ronald Klasko, 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

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 editions 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■ Fewer employers willing to sponsor■ Impact of layoffs■ TARP restrictions■ Labor certification applications difficult or impossible■ H-1B quota■ Increased opportunities for investors and entrepreneurs


General H-1B Issues

Employer preconceptions and misconceptions

TimingPremium ProcessingPortability

Employer requirements


H-1B Quota

Numbers 65,000 20,000 extra for U.S. masters

Quota used up Past years 2009

File April 1; Start October 1 Employment during “cap gap” Travel Issues


Quota Exempt H-1B

University Non-profit company

“Affiliated” with university Research organization

Employed “at” university or other quota-exempt employer

Concurrent employment Previous H-1B


H-1Bs for TARP Recipients

Attestations by covered employersNo Layoffs of U.S. Workers

“Essentially equivalent” jobs 90 days before and after H-1B filing date

Must Recruit for U.S. Workers Internal and external recruitment Must offer job to equally or better qualified U.S.

worker


Which Employers are Required to Make the Additional Attestations: Recipients of TARP funds

http://www.financialstability.gov/latest/index.html (Note: This website 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.

Recipients of FRA Section 13 funds Recipient determination depends upon the type of borrowing

arrangement between the entity and the Federal Reserve

H-1Bs for TARP Recipients(cont’d)


H-1B for TARP Recipients

Term Asset-Backed Securities Loan Facility (TALF) (received discounted government loans)

May be more to come

Does Not Apply to Every H-1BApplies to “new hires” after February 17, 20092 year program – till February 16, 2011 Only Relevant to H-1B

(cont’d)


H-1B for TARP Recipients(cont’d)

Hires before February 17, 2009H-1B extensions not coveredOPT change of status to H-1B not covered

Hires after February 17, 2009New H-1B hires coveredOPT hires changing status to H-1B

May not be covered Some employers rescinding offers


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-1B Part time or full time

Place of business

(cont’d)



Importance of business plan/financial projections

Other employees helpful – not required Prevailing Wage

CEO vs. function-descriptive position

(cont’d)


Impact of Employer Cutbackson H-1B Employee

Termination or layoff Impact of severance pay Impact on OPT

Leave of absence Reduction in salary or benefits


H-1B Time Limits Length of approval and extensions

3 year initial approval and 3 year extension6 year maximum – any combination of

employersExtensions beyond 6 years

Recapture time out of U.S. 1 year extension if file labor certification application

or immigrant petition one year before expiration 3 year extension if immigrant petition approved and

quota backlog


Other Visa Options

F-1 Going back to school

Advantages of Masters or PhD

Working overseas for U.S. employer Entering U.S. as B-1 Eligibility for L-1 after one year

Look at spouse’s status Spouse of J,E and L can work

Country-Specific Options: TN-1, E-3, H-1B1


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)



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


Corporate trainee Training not available overseas Formal training program required Productive employment incidental to training Training will qualify for position abroad

Trainee (H-3) Visa


Permanent Resident Status

Family Employment Investment Asylum Lottery


Spouse of U.S. citizenNo quota waitEAD and AP within 3 months

All other relationshipsLong quota waitNo interim benefits

Family


Asylum

Individualized fear of persecution Race, religion, nationality, political opinion,

social group, sexual persuasion


Lottery

Only specified countries One year window www.travel.state.gov


Permanent Resident Status Investment(EB-5)

http://www.eb5immigration.com

No quota delay Amount of investment

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


Permanent Resident Status Investment (EB-5)

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

as collateral

(cont’d)



Type of businessActive businessNew business or expansion of existing

business 40% increase in net worth or number of employees

(cont’d)



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

(cont’d)



Lawful source of funds Extensive documentation required Can be gift

Must prove giftor's source of funds

Can borrow money

(cont’d)



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)



Two possibilities Individual investment

See above

Regional center investment Approximately 45 USCIS – approved regional

centers Mostly $500,000 investment Indirect employment creation ok

(cont’d)



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)


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)


Materials

Please visit www.klaskolaw.com for this PowerPoint presentation and relevant articles.


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 Harvard Business School Visa and Permanent Residence Options...

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