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

Visa and Permanent Residence Options for the Entrepreneurial Student Harvard Business School. H. Ronald Klasko, Esq. Klasko, Rulon, Stock and Seltzer, LLP Philadelphia New York 1800 JFK Blvd. Suite 1700 317 Madison Ave. Suite 1518

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

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  1. Visa and Permanent Residence Optionsfor the Entrepreneurial StudentHarvard Business School H. Ronald Klasko, Esq. Klasko, Rulon, Stock and Seltzer, LLP Philadelphia New York 1800 JFK Blvd. Suite 1700 317 Madison Ave. Suite 1518 Philadelphia, PA 19103 New York, NY 10017 215.825.8600 212.796.8840www.klaskolaw.com

  2. 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

  3. 2009 Issues • Fewer job offers • H-1B quota • Impact of layoffs • Increased opportunities for investors and entrepreneurs

  4. 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 studies • See “Murky F-1 Employment Issues” (http://www.klaskolaw.com)

  5. 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 employee • Company separate entity from owner/employee

  6. H-1B Issues for Start-Up Business (cont’d) • Company must prove • Financial ability to pay salary • Profits and/or capitalization • Real job to be done by H-1B • Place of business

  7. H-1B Issues for Start-Up Business (cont’d) • Importance of business plan/financial projections • Other employees helpful – not required • Prevailing Wage • CEO vs. function-descriptive position

  8. H-1B Issues for Start-Up Business (cont’d) • “Specialty Occupation” • Use of concepts learned in courses • H-1B Quota • Past years • 2009 • What it means • Employment during “cap gap”

  9. H-1B Issues for Start-Up Business (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

  10. 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

  11. Other Nonimmigrant (Temporary) Options Treaty (E) Visas (cont’d) • Visa for 1 to 5 years • Each entry limited to two years • Visa and entry can be extended indefinitely • No quota • Spouse can work

  12. Other Nonimmigrant (Temporary) Options Treaty (E) Visas • Treaty traders (E-1) • “Substantial” import or export • Majority between U.S. and treaty country • Can be manager, supervisor or “essential skill” employee (cont’d)

  13. Other Nonimmigrant (Temporary) Options Treaty (E) Visas • 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)

  14. Other Nonimmigrant (Temporary) Options Treaty (E) • Visa applicant can be • Investor or • Manager, supervisor or essential employee (cont’d)

  15. 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

  16. Intracompany Transferee (L-1) Visas (cont’d) • 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

  17. Intracompany Transferee (L-1) Visas (cont’d) • Start-up issues • Place of business • Employees • Capitalization • Need for “manager” • Business plan and financial projections

  18. 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

  19. Permanent Resident Status • Family • Employment • Investment • Asylum • Lottery

  20. 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

  21. 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 Quotas (cont’d)

  22. Investment (EB-5) http://www.eb5immigration.com • No quota delay • Amount of investment • $1,000,000 or • $500,000 in “targeted employment area”

  23. Investment (EB-5) (cont’d) • Type of investment • Generally cash • “At risk” • Cannot use debt with investment enterprise as collateral

  24. Investment (EB-5) (cont’d) • Type of business • Active business • New business or expansion of existing business • 40% increase in net worth or number of employees

  25. Investment (EB-5) (cont’d) • Employment creation • 10 new or 10 additional full-time jobs • U.S. citizens or permanent residents • Saving 10 jobs in “troubled business”

  26. Investment (EB-5) (cont’d) • Lawful source of funds • Extensive documentation required • Can be gift • Must prove giftor's source of funds • Can borrow money

  27. Investment (EB-5) (cont’d) • Nature of investor’s relationship to business • Do not have to be employee (but can) • Do not have to be owner (but can) • Cannot be purely passive • Limited partner ok

  28. Investment (EB-5) (cont’d) • Two possibilities • Individual investment • See above • Regional center investment • Approximately 30 USCIS – approved regional centers • Mostly $500,000 investment • Indirect employment creation ok

  29. Investment (EB-5) (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

  30. Investment (EB-5) (cont’d) • Choosing between individual and regional center investment • http://www.eb5immigration.com/regional-centers-vs-individual-eb-5.php

  31. Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions Permanent Resident StatusEmployment

  32. Self-Sponsored Extraordinary ability EB-1 Extensive documentation required Reference letters critical Permanent Resident StatusEmployment (cont’d)

  33. National Interest Waiver EB-2 Standard Exceptional ability or advanced degree National priority National impact Extensive documentation required Reference letters critical Permanent Resident StatusEmployment (cont’d)

  34. Employer-Sponsored Outstanding 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 Permanent Resident StatusEmployment (cont’d)

  35. 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 Permanent Resident StatusEmployment (cont’d)

  36. Timing Electronic filing Possibility of audit First of three steps Permanent Resident StatusEmployment (cont’d)

  37. 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 Permanent Resident StatusEmployment (cont’d)

  38. 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) Permanent Resident StatusEmployment (cont’d)

  39. 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 Permanent Resident StatusEmployment (cont’d)

  40. Questions?

  41. For Further Information H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP rklasko@klaskolaw.com 215-825-8600 (Philadelphia) 212-796-8840 (New York) www.klaskolaw.com www.eb5immigration.com

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