HOW TO WIN VISAS FOR YOUR INTERNATIONAL EMPLOYEES TO WORK

IN AMERICA

A WEBINAR BY JON VELIE

BROUGHT TO YOU BY:

Winning Immigration Strategies for the International Company

Introduction

Jon Velie, Immigration Attorney – Velie Law Firm Winner of the American Bar Association Louis M. Brown Legal

Access to Justice Award for www.OnLineVisas.com Winner of 2013 Business Excellence Award for Best Overall

Small Business in the Americas, International speaker on Immigration Editor of www.ImmigrationMagazine.com

• Stay on the webinar for the full 60 minutes • Be watching the webinar using your unique URL

• Certificates of completion will be delivered electronically to email that you used to register for this webinar

• Sent to you no later than 3/5/2013

To earn RCH you must:

Agenda

WHAT YOU’LL LEARN

Overview of temporary and permanent business visas for the international company, includes:

Fact Patterns Visa Options Winning Strategies Questions and Answers

Overview

International companies are entities that have offices inside the United States and at least one location out of the United States. US Immigration law permits the movement of investors, owners, executives, managers, specialized employees, essential employees, professionals and temporary need employees to work in the US location(s) of international companies.

This webinar will explore a number of options and strategies that an international company and its management may utilize to hire foreign national employees.

Fact Pattern

Oscar is the Owner and Managing Director of a British company. He intends to invest over a million dollars personally into establishing the US entity. The Board of Directors voted to send Oscar to the US to establish the company and grow it to 30 employees; a number that will need to come from the companies existing international locations or be recruited from a world-wide workforce.

L-1 Visa International Transferee

For companies that have offices in US and another nation. L-1A for Executives and Managers. Managers can be manage people or functions Must have nexus between companies, either subsidiary or

affiliate Can be used to establish US entity Practice pointer: Seven year total. Can not extend during

GC like H-1b

L-1 Visa Winning Strategies for Owner Executive

Oscar is an executive. He can hold a different title in US from British office, like President or CEO.

Can enter to establish the new company. Or enter on a B-1 business visitors visa to establish company and change status to L-1 without leaving the US.

Relationship of the foreign and US companies must be subsidiary or affiliate

Oscar must have worked for the British company or other international location as an executive for one of the last three years.

L-1 permits the foreign entity to pay salaries of US employees. USCIS has relied on Supreme Court case law to restrict owners of

companies to enter on the L-1 visa if they have too much control of the company and therefore, are not employees.

If there is a Board of Directors that directs the owner in his/her executive capacity and a precisely constructed employment agreement this issue can be averted. Remember, L-1 visas are temporary and the contract must have a start and end date consistent with the requested visa term.

If more than 50% of the workers are foreign workers may increase fees

Fact Pattern

To increase its suite of services, Oscar’s company acquires Bob’s Canadian technology company and wants to utilize a number of the employees in the US and shut the doors on the Canadian facility.

Bob is the President of the Canadian company since its inception six years ago. Oscar wants to place Bob in charge of developing new technology for a department of the company that provides tech goods and services. He does not have employees under his charge but works with the sales team, production and marketing departments. He will stay in Canada but make frequent trips to the US for meeting with clients and work with the department heads of various other segments of the Company.

L-1 Visa winning strategy for functional manager

Bob was executive, but he isn’t anymore. He is a manager, but not the traditional type that oversees people below him.

Immigration recognizes functional managers. These people manage a function of the company. Key elements: Autonomy of the function or division Oversees a budget Decision making ability Works with other function or division heads Oversight of others on a project basis

Evidence can exist in employment agreements, employment letters, website, execution of contracts on behalf of function or division.

Can still get the L-1 visa even if the Canadian company is closed if another foreign location exists.

Fact Pattern

Chuck has been Vice-President of the Canadian company for the last five years, the US company wants him to be transferred to its new Silicon Valley Office to take the position of Chief Technical Officer.

L-1 Visa Winning Strategy for the Executive

Chuck was an executive as VP and can take another executive position of CTO.

He has worked the requisite 3 years at a foreign office. It is permissible for him to have worked at the newly

acquired Canadian entity instead of the British location.Relationship of the Canadian office to the British parent

company and US subsidiary are important. If the Canadian company and US company are both owned by the British company then they are affiliates and that is permissible. If the US company bought the Canadian company, then it is a subsidiary and that is permissible.

If the owners of the British company and others own the Canadian company and have a different set of stock holders for the American company, it may be problematic.

Fact Pattern

Cindy has worked for the newly purchased company in Canada as regional manager over all sales for three years. She supervises numerous sales professionals, a number of which have management level duties. Some are in the US as well as Canada. She has been having trouble travelling into the US lately, being hassled by Border Officials because she has no visa.

The Silicon Valley office needs her to attend quarterly sales meetings as well as oversee her subordinate team members in the US regularly.

L-1 Visa Winning Strategy for the Manager

Cindy is a traditional manager who oversees others, including supervisory employees.

She has worked the requisite 3 years at a foreign office.

It is permissible for her to obtain an L-1 visa even though she will still reside in Canada.

It is not permissible to enter the US without a visa to perform her job duties in the US.

The L-1 visa for her management position is a good fit.

Fact Pattern

Jerry has been the operator of the British company’s proprietary process that produces a high tech product for the last 17 years. The US office wants to distribute to its customers. Jerry does not have a degree and does not manage anyone, he is just one of the few guys who can make the companies products.

L-1B Visa

L-1B Specialized Employees. Must have acquired skills particular to the company.

Must have worked one of the last three years for international office.

Up to 5 years total.

L-1B Visa Winning Strategy for the Specialized Employee

Bob knows how to make the company’s proprietary products.

Evidence to establish his knowledge can come through payroll records, employment agreements or letters, taking or developing company training programs, other evidence of his experience.

Will have to articulate how Bob will train US workers and detail how long he will be needed in the US office. Total of 5 years max.

EB-1 Permanent Residency Visa-Greencard

For Multi-National Executives and Managers.

Similar to the L-1, Some executives and managers of companies with offices in both US and abroad can petition for permanent residence for these workers.

Must have worked for the office overseas for one full year within last three years and US office must have been in existence for at least a year. This time is tolled, if in the US on an L-1 visa for the same company.

Must have Corporate Petitioner but no labor certification.

Cannot apply until the US company’s relationship with the foreign entity has existed one year.

Oscar, Bob, Chuck and Cindy meet the requirements for this Greencard. Jerry does not.

Fact Pattern

Elizabeth is the British company’s VP of Business Development. She developed a strategy that increased the revenues of the Company from a start up to $200 Million in annual sales. She won an award by a European industry association, has been subject to articles in major business magazines, has authored white papers and given presentations at industry conferences, she sits on a panel which selects Britain’s Woman of the Year.

ELIGIBILITY:

An international beneficiary who possesses extraordinary ability in the arts, sciences, business, education, or athletics may enter the United States to perform for a U.S. employer temporary services relating to an event or events. The petitioner must demonstrate extraordinary ability through sustained or international acclaim. The O-2 visa is also offered to those who assist or accompany the petitioner, and their family members, O-3. The employer of the extraordinary ability individual must petition for the O-1 visa on behalf of the Beneficiary.

O-1 Visa Extraordinary Ability

Winning Strategies for O-1 Visa

Elizabeth will have to prove she has risen to the top of the her industry. She can define her profession as narrowly as she wants.

To meet this she must show evidence of at least three of the following: internationally or nationally recognized prizes or awards; Her award by the

European industry association. Published material about the alien's work; Articles in the major biz mags Membership with an association that requires members to have outstanding

achievement; Her membership on the panel that selects Britain's woman of the year.

Major contributions in the field of science, business, or scholastics; Taking her company to a $200M, probably inked some impressive deals

Articles published in any type of major media or professional journals; White paper

High salary or any other type of compensation commanded by the alien; Assuming she would generate on of these. Compare to others in the field.

Participation on a panel, or as a judge for other peoples works; Yes Evidence of past employment for organizations or establishments that have a high

reputation. Company with these kind of revenues likely meets this

EB-1 Visa Extraordinary Ability Green Card

EXTRAORDINARY ABILITY: The petitioner must show that he/she has reached a level of expertise indicating that the individual is one of a small percentage who have risen to the very top of the field of endeavor.

SUSTAINED INTERNATIONAL ACCLAIM FOR ACHIEVEMENTS: The petitioner must show evidence of achievement through receipt of an internationally recognized award, or at least three of the following:

Winning Strategies: EB-1 Extraordinary Ability Visa

While the criteria for the O-1 and EB-1 are very similar, the adjudication is much more stringent. First, the achievements must show the individual has sustained his/her high level of achievements, rookies of the year need not apply.

Three types of evidence exists: Primary: A photograph of an award, an article, a book, a contractSecondary: Expert letters that discuss the importance of the primary

evidence. Experts should not be with in the circle of friends but independent people that can explain how an achievement meets a criteria.

Tertiary: Articles or letters that support the primary or secondary evidence, such as an article about the award or a publication or a resume of an expert.

Utilize all three types to fully substantiate how the individual reached the top of the profession.

Fact Pattern

Raxit, a citizen of India, received his Master’s

Degree in Computer Engineering from the University of British Columbia has numerous skills in IT. Raxit has been with the Canadian company for six months.

ELIGIBILITY:

An international beneficiary who is offered a skilled specialty occupation by a U.S. Employer who qualifies as a professional worker may enter the U.S. temporarily to accept employment within his or her profession.

H1-B Specialty Occupation Professional

H1-B Specialty Occupation Professional

APPLICABILITY:

Professional positions. Managers, accountants, lawyers, IT workers, marketing personnel or similar positions. In plain language this is typically for college grads in jobs that require degrees. Exception for those with work that equals degree equivalency

H1-B Specialty Occupation Professional

CRITERIA:

U.S. Company is offering employment Minimum Prevailing Wage for county and state at site of

employment – Determined by DOL "Specialty Occupation” Labor Condition Application Must be professionally qualified A four-year Degree or equivalent Special category for Chileans Similar E-3 is available for Australians

H1-B Specialty Occupation Professional

DURATION:

Three years, with the same employer in substantially the same professional occupation as long as the underlying business on which the visa is based remains a viable trading entity. The visa can be renewed for 3 more years.Can extend beyond 6 years if Labor Cert or I-140 for Permanent Residency is filed 365 days prior to expiration of sixth year.

H1-B Specialty Occupation Professional

Issues:

Subject to numerical cap of 65,000 per year for regular H-1b and 20,000 Master Degree from US universities October 1st is the start of the fiscal year for counting against cap.Can apply six months prior to start of fiscal year or April 1st.Chile and Singapore are not subject to H-1b cap under treaty. Australia, Canada and Mexico have different but similar visas for professionals

Winning Strategies for the H-1b Visa

Raxit is an advanced degree professional so he can utilize the additional 20,000 visas above the regular cap. Keys to successfully obtaining H-1b visas are:

Applying as early to April 1st as possible to reduce risk of hitting cap. Obtaining Prevailing Wage Determination consistent with the job and what the Company can pay. Drafting an employment letter that details specifically the duties of the job and how it requires the knowledge learned in a university degree. Tying the duties of the job to Raxit’s degree. Must get Raxit’s degree determined to be equivalent to a US Degree.

Fact Pattern

Sarah, from Australia, is in a position that requires a degree in marketing. Her degree from Sydney University is in business management. She took a number of marketing and advertising classes while in college.

E-3 Visa Specialty Occupation Professional

E-3 is a treaty created version of the H-1b for professional Australians.

E-3 is not subject to the same numerical limitation of visas per year.

Spouses of E-3 can obtain work authorization.

An E-3 visa is granted for up to two years. At the end of each two-year period, the Australian citizen may reapply for another E-3 visa. At present, there is no maximum number of times that an Australian citizen may renew his or her E-3 visa

Winning Strategies for the E-3 Visa

E-3 can be applied directly through US Consulate, either in Australia or some third nationsAustralian degrees do not need to be evaluated to be equivalent to US, but degrees from other nations do

Fact Pattern

Samir, a naturalized Canadian who was born in New Delhi, India, is a database programmer with a computer engineering degree.

TN-1 Visa NAFTA Workers

ELIGIBILITY:

A Canadian or Mexican Citizen who seeks temporary entry as a professional may be admitted to the United States under the provisions of Appendix 1603.D.1 of Chapter 16 of NAFTA on a TN visa.

TN-1 Visa NAFTA Workers

APPLICABILITY:

Similar applicability to the H-1b or E-3 except there is a list of qualifying jobs. Those that may have applicability are : Accountant, Computer Systems Analyst, Graphic Designer, Hotel Manager, Lawyer, Management Consultant.

Winning Strategies for TN-1 Visas

TN Visa must be petitioned for at a U.S. Port of Entry or Airport Inspector. The Canadian or Mexican Citizens must present all necessary documentation on site. Approval or denial is usually same day at site where petition was made.

Consult the list or TN jobs before attempting to apply for a TN-1 visa.

TN visas do not require prevailing wage requests. Can now be granted in three year terms If utilizing the management consultant position, hire as a

contractor not an employee.

Fact Pattern

Shirley is the niece of one of the Executives of the company from England; she just graduated with a degree in Business Administration. She would like to work for the company, but has no experience.

J-1 Visa Management Trainee or Intern

CRITERIA:

Sufficient funds

Educational or Employment Background

English speaking ability

Intent to leave the U.S. at end of stay

Winning Strategies for J-1 Visa Mgt. Trainee

Develop a plan to train management level workers for the company.

Can pay the Trainees, no prevailing wage required Training program can be up to 18 months maximum J-1 applicants must have sufficient education or experience,

but cannot be too old Changes of Status to other non-immigrant categories are not

automatically granted. The exchange visa holder must have a privately funded J-1 Visa to be eligible to change status without first obtaining a waiver from the two-year foreign residency requirement .

Be aware of 2 year home residency requirements for certain nations and skill sets before applying for J-1 visa. Waivers are very difficult to obtain.

Processing time can be very quick. It requires a J-1 issuing company, which can process in less than a week and a consular interview.

E-1 and E-2 Visas Treaty Trader/Treaty Investor

Applicable to nationals of certain countries.Can be used to start US companyNo specific amount of investment needed, but must be reasonable to type of industry.USCIS have different interpretations. Determining whether to change status or consular process must examine this issue as well as particular consulate’s process.Can use loans for investment. Must have other investments.Can’t create company just to create job for investor.Can be extended as long as company is viableAlternative if cannot meet L-1 or EB-5.

Winning Strategies for E-2 Visas

• As a British citizen, Oscar could utilize the E-2 visa as well. • His investment of $1 M is more than substantial.• His staffing of US workers also helps.

Evidence necessary to win the case would include as many of the following as possible: Business plan, organizational documents, checking account reports, deposits of checks or wires of investment into the company, loan documents, tax records, 3 or more years of projections, client or customer invoices, vendor invoices and payments, marketing materials, organizational charts, payroll records and other indicators of the investment, viability and operations of the company

EB-2 Visa Degreed Professionals, Skilled Professionals & Other Workers

ELIGIBILITY:

Prospective immigrants who are members of the professions holding advanced degrees or their equivalent, or who possess exceptional ability in the sciences, arts, professions, or business, and whose services are sought by an employer in the United States.

EB-2 Visa Degreed Professionals,Skilled Professionals & Other Workers

Advanced Degree Professionals and Aliens of Exceptional Ability

Any degree above a Baccalaureate or a B.A./B.S. plus 5 years experience, unless it requires PhD.

Also includes physicians intending to practice in underserved areas and soviet scientists. Now includes athletes.

Exceptional ability proven through degrees, experience, salary, associations, contribution.

Needs special labor cert, unless a National Interest Waiver can be obtained.

EB-2 and EB-3 Permanent Residency Visa

CRITERIA:

Labor Certification required, called PERM

No qualified American worker is available to fill the job; and

The prospective immigrant shall be paid at a minimum the prevailing wage for the industry as set by the DOL of the State where the services are to be rendered.

Priority Dates

EB-3 visas are suffering lengthy delays because USCIS officials are processing cases with priority dates years ago. Priority date is the date the labor certification was filed with DOL.

Practice point: Priority dates are released around the 15th of each month.

Priority dates for February 2013 for the EB-3 are March 15, 2007 for all nations with exceptions for following: Mainland China November 15, 2006,India November 15, 2002, Mexico March 11, 2007 and Philippines August 1, 2006

Priority dates for February 2013 for EB-2 are current for all countries with exceptions for China, January 15, 2008 and India September 1, 2004

EB-5 Permanent Residency Visa

Immigrant Investor

For investors in new US companies of $1 Million that create 10 jobs within 2 years of approval.

Investment is $500,000.00 for high unemployment and rural areas.

Can invest in pre-designated areas called regional centers and get credit for indirect jobs.

Other applicability: International entrepreneurs can open US offices under this visa.

Winning Strategies for EB-5 Visas

Oscar could obtain a Green card under the EB-5 visa as well. His investment of $1 M meets the criteria. If his employees were to be in a rural or high unemployment area it would only need to be $500,000.

Staffing of at least ten US workers out of his proposed 30 is also a necessity.

Key to obtaining the visa will be the ability to trace the source of his funds. This is proven with personal and corporate tax documents, his other investments or revenue streams.

Business Plan drafting and corporate organizational and ownership structure is critical here.

Questions?

50

Jon VelieVelie Law Firm

405.310.4333 (office)405.821.5959 (cell)jon@velielaw.com

www.OnlineVisas.ComImmigrationMagazine.com

Contact me for: Free Strategy, Free Legal OpinionFlat Fee Pricing and Guaranteed Results

• Stay on the webinar for the full 60 minutes • Be watching the webinar using your unique URL

• Certificates of completion will be delivered electronically to email that you used to register for this webinar

• Sent to you no later than 3/5/2013

To earn RCH you must:

More RCH Webinars

Form W-2: All You Need to Know for 2013Tuesday, February 12

10am PST/1pm EST

Giving Effective Feedback and Performance Reviews

Thursday, February 1410am PST/1pm EST

www.ascentis.cominfo@ascentis.com800.229.2713