The Impact of the Recession on the Foreign National Community: Immigration Considerations

1. The Impact of the Recession on the Foreign National Community:Immigration Considerations Kate Kalmykov, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd., 17th Floor 317 Madison Ave., Suite 1518 Philadelphia, PA 19103 New York, NY 10017 215.825.8600 212.796.8840www.klaskolaw.com

2. 2009 Issues • Fewer job offers • H-1B quota • Effect of TARP requirements on H-1Bs • Impact of layoffs • Increased opportunities for investors and entrepreneurs

3. Employment Options for the F-1 Student • 20 hours per week on campus • OPT after complete studies • 90 day rule • STEM Extension • 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)

4. H-1B • Basic requirements • Procedure and processing times • Specialty occupation issues • Part-time or full-time • Length of approval • Extensions • Portability • Travel

5. H-1B Quota • What is it and what does it mean? • Who is not subject to the quota? • Universities • Nonprofit institutions affiliated with universities • Employed “at” university • Nonprofit or government research organization • Previous H-1B under cap • Concurrent employment • Strategies and timing

6. The H-1B and TARP Recipients • American Recovery and Reinvestment Act of 2009 requires employers who accept TARP or FRA Section 13 funds to make additional attestations on the LCA when hiring H-1Bs. • H-1B employers must attest that they took good faith steps to recruit U.S. workers and that no U.S. worker was displaced by the employment of an H-1B worker either at the employer's own worksite or at any outside worksite where the employer has placed an H-1B worker.

7. The H-1B and TARP Recipients • The Federal government is expected to introduce additional programs under FRA Section 13 that will be open to both U.S. entities and qualifying U.S. branches and subsidiaries of foreign entities. One such program is the Term Asset-Backed Securities Loan Facility (TALF), which will offer discounted Federal Reserve loans to eligible borrowers.

8. The H-1B and TARP Recipients • The Specifics: • This provision does not apply to H-1B extensions • 2 year program, ending on February 16, 2011 • Does not apply to Change of Status if employee is already working with employer including on OPT • Cap subject filings for FY2010 must include addt’l attestations • List of TARP recipients is available at http://www.financialstability.gov/latest/index.html • (Note: This Web site 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.

9. TARP and Student Issues • TARP provisions apply only to H-1B employees: • Students working on OPT not affected • Some employers are rescinding offers to these students b/c eventually they will need to file H-1B to keep the employee • Other Nonimmigrant visa categories

10. 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

11. 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

12. 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

13. H-1B Issues for Start-Up Business (cont’d) • “Specialty Occupation” • Use of concepts learned in courses • H-1B Quota • Past years • 2009- CAP not reached • What it means • Employment during “cap gap”

14. 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

15. 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

16. 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)

17. 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)

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

19. 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 for L-1A/ 5 years for L-1B

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

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

22. 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 own company • Length of visa • 3 years • 1 year extensions • Can extend indefinitely

23. Termination of Employment • Upon termination, employee loses legal status and may be required to leave the U.S. unless the employee finds a new employer willing to file a new petition on his or her behalf on a timely basis, or is able to obtain a different nonimmigrant status. • No grace period • If employer terminates H1-B employee before the end of that employee’s period of authorized stay, employer is responsible for the “reasonable costs” of return transportation to last country of residence • For permanent residence process implications depend on where you are in the process

24. Questions?

25. For Further Information Kate Kalmykov Esq. Klasko, Rulon, Stock & Seltzer, LLP kkalmykov@klaskolaw.com 212-796-8840 (New York) www.klaskolaw.com