Options for Entrepreneurs and Emerging Businesses

1. Options for Entrepreneurs and Emerging Businesses Leslie Tuttle DiTrani (DL), Andrew Wilson, and Prasant Desai

2. H-1B Challenges: Keeping it Special and Proving it’s Real • Scrutiny of H-1B petitions filed by new and/or small employers is generally guided by three sources of authority:  • H-1B Fraud and Compliance Initiative • Neufeld Memo • Entrepreneurs in Residence (EIR) initiative

3. H-1B Challenges: Keeping it Special and Proving it’s Real • Be aware of the Fraud Alert Factors: • less than $10 million in revenue, • fewer than 25 employees, and • less than 10 years in business

4. H-1B Challenges: Keeping it Special and Proving it’s Real Affirmative Actions your Client can take to improve their H-1B petition. • Provide a comprehensive business plan. • Set up a board of directors. • Establish an advisory committee. • Suggest that your client verify with Dunn & Bradstreet. • Use shared office space or flex office space for those clients without a physical location outside their home-Apple may never have been able to start out of a garage if Steve Jobs needed an H-1B. • File for a part-time position for companies that can’t justify a full time professional. • Ensure to identify a support staff who handles administrative tasks.

5. H-1B Challenges: Keeping it Special and Proving it’s Real • Issues in selecting a prevailing wage • Tips for proving it’s a specialty occupation • Specific job duties • Percentages of time on each duty • Information on why those duties require someone to possess a bachelor’s degree in a specific field • Highlight coursework the beneficiary completed related to the duties • Role of the attorney • Proving it is a real position of real need to the business.

6. E Visa Investment: How Low Can You Go? Substantiality Test • Prove that the investment is real, the business enterprise is viable, and the invested funds are at risk. If these points are convincingly made, and the adjudication officer can see that there are tangible business activities that will take place, then the amount of the investment will have been substantial enough in the context of this particular business for the case to be approved. Marginality Test • A small rock thrown into a pond-It is the attorney’s challenge to identify and document all of the ripples that were caused by that rock.

7. E Visa Investment: How Low Can You Go? Source of Money Invested • Must trace and document the source(s) of money used for the investment. • What about gifts and loans? What if a loan is secured against the business? Against personal property such as a home? What types of evidence are needed in these situations? • Putting the money at risk-If purchasing a business, is it possible to make the deal contingent upon approval of E-2 visa? • What can be counted in investment? Lease for space and equipment? Employee compensation? Attorney fees?

8. How can you be an Owner and Employee? • USCIS Memorandum, D. Neufeld, “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements” • Right to Control, Not Actual Control is Paramount • Spread of the Memo to Other Areas: L-1s, EB-1s, O-1s etc.

9. How can you be an Owner and Employee? • USCIS’ Entrepreneur in Residence (EIR) Initiative • Use to Counterbalance the Memo • Specifically suggests types of evidence to demonstrate right of control including: • Term Sheet • Capitalization Table • Stock purchase Agreement • Investor rights Agreement • Voting Agreement • Organizational documents and operating agreements • Has there been a difference in RFEs or adjudications since the EIR initiative?

10. Options for Entrepreneurs and Emerging Businesses Questions?