Immigration Options for International Entrepreneurs: What You Need To Know.Nadia Yakoob, Esq.

Overview

1. Considering the U.S.?2. Temporary Employment-Based Visas3. The New International Entrepreneur Parole

Program4. Paths to Permanent Residence5. Immigration reform? 6. Common Obstacles to Getting Your Visa7. Q & A

Testing the Waters

Visitor Visa (B-1/VWP) For temporary business activity in U.S. Not for productive employment (must remain on payroll overseas) Ties to home country with intent to return Period of stay authorized is six months (VWP – 90 days)

B-1 extensions allowed; no extensions for VWP entry

Testing the Waters

Studying in the US (F-1) Status is for duration of study One year of work authorization

granted at conclusion of program - OPT (must have completed at least one year of studies in an accredited university).

STEM OPT extension of 24 months**

Temporary Employment-Based Visas

H-1B Visas for High-Skilled Workers:

H-1B Visas for High-Skilled Workers:

Bachelor’s degree or

equivalent work experience

Requirements

Higher of actual or prevailing

wage

Employer-employee

relationship

Government Filing Fees

H-1B Visas for High-Skilled Workers: Wage Requirements

Required Wage – higher of the actual or prevailing

Prevailing Wage Average salary paid to all similarly

situated employees (i.e. similar job duties, experience, education, etc.) in each geographic region as determined by the Department of Labor.

DOL website

Actual Wage Paid by the employer to US workers In the same position At the same work site With similar experience and

qualifications

H-1B Visas for High-Skilled Workers:

USCIS gives specific examples of employment situations that are acceptable: 

Traditional EmploymentTemporary/Occasional Off-Site EmploymentLong-Term/Permanent Off-Site EmploymentThe following scenarios are no longer acceptable: Self-Employed Beneficiaries Independent Contractors Third-Party Placement/ "Job-Shop"

Employer-Employee Relationship

H-1B Visas for High-Skilled Workers:

Employer Must Pay.

H-1B Filing Fees

H-1B Visas for High-Skilled Workers: Base filing fee: $325 American Competitiveness and Workforce Improvement Act of

1998 (ACWIA) fee (cap-subject petitions only): $750 for employers with 1 to 25 full-time equivalent employees, unless exempt $1,500 for employers with 26 or more full-time equivalent employees, unless

exempt Fraud Prevention and Detection fee:

$500 to be submitted with the initial H-1B petition filed on behalf of each beneficiary by a petitioner (does not apply to Chile/Singapore H-1B1 petitions)

Premium Processing fee (Optional): $1,225 for employers seeking Premium Processing

Service

H-1B Visas for High-Skilled Workers:

H-1B CapCap: 65,000 (of which 6,800 are allocated to nationals of Singapore and Chile) + 20,000 additional visas allocated to holders of advanced degrees from U.S. universitiesThe Biggest Filers

Cap Subject vs. Cap Exempt All Universities are cap exempt Some research organizations are cap-exempt Extension, amendment and portability petitions are exempt (have you been

counted once in the last six years?)

H-1B Visa Lottery: First week of

April.

H-1B Visas for High-Skilled Workers:

How Much Can You

Work?

Can work full-time or part-time Can hold dual/concurrent H-1Bs with

multiple employers Work is tied to sponsoring employer Cannot work for someone else without

authorization.

H-1B Visas for High-Skilled Workers:

Duration and DependentsDuration: Six-year maximum (granted in two three-year

increments) H-1B status can be extended past the six-year

maximum in certain situations.

Dependents: Spouses and children under 21 may join H-1B worker

Cannot work** May study

E Visa for Treaty Trader and Investor:

E Visa for Treaty Trader and Investor:

Must be a national of a treaty country (List of E Countries)

The company must be at least 50% owned by individuals/entities who/that are nationals of a treaty country

[E-1] Trade must be significant with the U.S. (at least 50%)

[E-2] Investment must be substantial and for a real, operating enterprise (not marginal and just for making enough money to live on).

E Visa for Treaty Trader and Investor:

E Visa DetailsFiling Fee: $270 at the US Consulate per applicant

Duration: Indefinite in two-year increments

$270

Dependents: Work authorization available

L-1 Visa for Intra-company Transferees:

L-1 Visa for Intra-company Transferees

Opening a new office in the U.S. that is an affiliate, subsidiary, or branch of an entity abroad.

1Employees are eligible for transferring to the U.S. entity after working for one year at the entity abroad.

2Coming to work as an executive/ manager or worker with ”specialized knowledge.”

3

L-1 Visa for Intra-company Transferees

L Visa DetailsFiling Fee: $325 Petition Fee, $500 Anti-Fraud fee,

optional $1,225 for premium processing.

Duration: 5 years max for L-1B specialized knowledge workers7 years max for L-1A for executives/ managers.

$825

Dependents: Work authorization available.

O-1 Visa for Individuals of Extraordinary Ability:

O-1 Individuals with Extraordinary Ability or Achievement:

Sustained national or international acclaim in the sciences, arts, education, business, or athletics.

Coming to the United States to continue work in the area of extraordinary ability.

Employer specific, but can hold dual O-1s

Duration: 3 years at first, renewable in one-year increments indefinitely

Dependents: O-3 status; no work authorization

O-1 Individuals with Extraordinary Ability or Achievement:Evidentiary CriteriaEvidence that the beneficiary has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following:  

National or international awards in your field

Membership in associations that require outstanding achievements

Published material about you or your work Important and original scientific, scholarly, or business-related contributions

Scholarly articles A high salary

Being asked to judge the work of others in your field

Employment in a critical role for established organizations

Other Visa Options

E-3 Visa for Australian Nationals: High-skilled Worker Visa for Australian citizens only 10,500 available per year Job offered must be for a “specialty occupation” Prevailing wage requirement applies. Controlling shareholder of a startup – not the visa

for you!

Duration: 2-year validity; renewable indefinitely

Dependents: Spouses may apply for employment authorization

TN Category for Canadian and Mexican Professionals: Must be nationals of either Canada or Mexico Coming to U.S. to work in profession listed on

NAFTA schedule No prevailing wage requirement Employer-specific (controlling shareholder issue

returns)

Duration: Three year stay, renewable indefinitely

Dependents: TD status; no work authorization

J-1 Internship/Trainee Visa

J-1 Visa (must meet program requirements, such as relevant degree, benefit to future employment abroad). For internship, must be enrolled in university abroad or have

graduated from university abroad no more than twelve months before starting internship

For traineeship, must have graduate degree from university abroad plus one year of related professional experience or five years of related work experience abroad.

Must show ties to home country and intent to return home Generally admitted for 18 months or less US companies can have their own J-1 program or can sponsor candidates through umbrella J-1 program Increased use of on-site visits.

Interning at a for-profit company will be seen as employment so you need a visa.

New International Entrepreneur Parole Program

BackgroundEncourage Innovation, and Support US Businesses and Job Creation Since November 2014, President Obama has been

planning executive actions to fill in gaps in our immigration system.

Of the top 50 venture capital-funded startups in the US, 48% had at least one immigrant founder.

Allowing international entrepreneurs to live in the US and grow their companies is of “significant public benefit.”

Qualifying Criteria to Show Potential for Rapid Growth and Job Creation

Applicant must:

Have established a U.S. start-up business within three years before the application for parole;

Hold an ownership interest in the startup of at least 15%;

Play an active and central role in the operations of the business (cannot be just an investor)

Show proof of funding.

< 3 Years > 15%$

How Much Funding is Required?

The startup must have received a capital investment of at least $345,000 from qualified US investors; What is a qualified investor?

1. Must have made one or more investments 2. …in at least 3 different calendar years in the preceding 5 years3. …totaling US$ 1 million

Investors cannot be relatives. The startup must have received $100,000 in grants and awards from qualifying US federal, state or local government entities.

Proof of Funding

Alternatively, “additional reliable and compelling evidence” of rapid growth and job creation can be submitted if threshold funding amounts cannot be shown.

$

What is Parole Status?

It’s a legal entry into the United States.

1It is not a visa status(like F-1, H-1B or O-1).

2No direct path to permanent residence.

3

International Entrepreneurs Parole Status

Filing Procedure and DurationDuration:

Household Size Income 2 80,100 3 100,800 4 121,500

Initial grant of 2 year 5-year maximum

Application procedures: Form I-941 Application for Entrepreneur Parole $1,200 Filing Fee Must show household income of 400% above

poverty guidelines.

The start-up continues to operate; Entrepreneur continues to play a central role in the business (at least

10% ownership); and The start-up has…

Obtaining an Extension of Parole

Extension permitted for 3 years if…

…or a combination of the above.

Created jobs (at least 10 full-time employees),

Received more funding (at least $500,000),

Generated significant revenue($500,000 annually at a 20% average annual growth),

International Entrepreneurs Parole Status

Dependents

Spouses and children under 21 may join Spouse may work (must apply for EAD) May study

Limitations

No more than three entrepreneurs can be granted parole per start-up entity

No appeal of denial

Parole status can be revoked at any time if the startup ceases to operate or ceases to provide a significant public benefit to the U.S.

3x

Timeline for Implementation:

45 Days For Comments

After publication on August 31, individuals and organizations will have 45 days to provide comments.

Finalized Regulation

After the comment period closes on Monday, October 17, DHS will review the feedback and prepare a finalized regulation (it could be different from this version).

Final Rule Approved

The international entrepreneur parole program will not be implemented until the final rule is approved (this could take several months).

Avenues for Permanent Residence

Avenues for Permanent Residence Employment-Based Family-Based Diversity Visa Lottery Asylum (One-year requirement unless exceptional

circumstances) Investment-Based ($1 Million GC)**Can obtain citizenship five years after obtaining permanent residence; spouses of US citizens can apply after three years of permanent residence.

Likelihood of Immigration Reform?

Common Obstacles

Common Obstacles Two-year home residency requirement for J-1s. Previous overstays. Bad Memory: Fingerprint checks can discover many

things and then you could be charged with wilful misrepresentation.

Criminal Record: If you have been arrested and/or convicted anywhere in the world, this will affect processing times and visa eligibility. Also, speak with an immigration attorney before pleading to any crime in the U.S.

Best of Luck!Nadia Yakoob, Esq.SW Law Group, P.C. 3340 Walnut Ave., Suite 120Fremont, CA 94538 Phone: (408) 329-9184 ext. 104nadia@swlgpc.com