Visa and Permanent Residence Options for the Entrepreneurial Student

1. Visa and Permanent Residence Optionsfor the Entrepreneurial Student 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. Kate Kalmykov, Esq. • Kate Kalmykov, an Associate in the Firm's New York City office, focuses her practice on business immigration and compliance. • Kate represents clients in a wide-range of employment based immigrant and non-immigrant visa matters including professionals, managers and executives, artists and entertainers, treaty investors and traders, persons of extraordinary ability, outstanding researchers/ professors and national interest waivers.  In addition, Kate assists clients with obtaining J-1 waivers of the two-year home country residence requirement.  • Kate has extensive experience in preparing immigrant petitions for investors.  She regularly develops creative immigration solutions for high net worth individuals and entrepreneurs investing in the United States. • Kate is an active member of the American Immigration Lawyers Association and the American Bar Association Section of Litigation, Immigration Committee

3. 2009 Issues • Fewer job offers • H-1B quota • Effect of TARP requirements on H-1Bs • 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 • 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)

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

6. 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

7. 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.

8. 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.

9. The H-1B and TARP Recipients • What we know so far: • 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 • Cap subject filings for FY2010 must include addt’l attestations • List of TARP recipients is available at http://www.treas.gov/initiatives/eesa/transactions.shtml • (Note: This Web site lists recipients of TARP funding, but not recipients of direct Federal Reserve credit, so it is not all-inclusive).

10. 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 • Negotiating with employers- precautions that employee must take when offering to pay fees • $500 Fraud Fee and $1500 ACWIA training fee must be paid by employer

11. 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

12. 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

13. 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

14. 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”

15. 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

16. 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

17. 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)

18. 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)

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

20. 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

21. 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

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

23. 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

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

25. 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

26. 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)

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

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

29. 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

30. 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”

31. 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

32. 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

33. 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

34. 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

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

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

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

38. 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)

39. Employer-Sponsored Outstanding Researcher or Professor EB-1 “Permanent position” Similar to extraordinary ability Multinational Manager EB-1 Same as L-1A except must be manager or executive overseas Permanent Resident StatusEmployment (cont’d)

40. 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)

41. Timing Electronic filing Possibility of audit and supervised recruitment First of three steps Permanent Resident StatusEmployment (cont’d)

42. 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)

43. 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)

44. 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)

45. 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

46. Questions?

47. For Further Information Kate Kalmykov Esq. Klasko, Rulon, Stock & Seltzer, LLP kkalmykov@klaskolaw.com 212-796-8840 (New York) www.klaskolaw.com www.eb5immigration.com