Swiss American Business Council NAVIGATING THE TUMULTUOUS WATERS OF THE U.S. IMMIGRATION SYSTEM

1. Swiss American Business Council NAVIGATING THE TUMULTUOUS WATERS OF THE U.S. IMMIGRATION SYSTEM October 9, 2013 Schaumburg, Illinois

2. VISA WAIVER - WB • For Temporary Business Trips Consistent with B-1 Category or Tourism • Duration of Stay 90 Days or Less • Foreign Employer and Salary Abroad • Cannot Appeal Decision at Port-of-Entry • Countries NOT Currently Qualifying: • India • Brazil • China • Poland

3. WB/B-1 BUSINESS VISITOR VISACURRENTLY UNDER HIGH SCRUNTINY • Commercial Transactions Which Do Not Involve Gainful Employment • Negotiate Contracts • Consult with Business Associates • Litigate • Participate in Scientific, Educational, Professional or Business Conventions, Conferences or Seminars • Independent Research

4. IMMIGRATION CONSIDERATIONS: EMPLOYMENT TRIGGERS • Nature of Visit • Frequency of Visit • Duration of Visit • Salary

5. B-1 EXCEPTIONS • B-1 in lieu of H-1 • B-1 in lieu of H-3 • Commercial Installation Exception

6. L-1 INTRACOMPANY TRANSFEREE REQUIREMENTS • Qualifying Relationship • Prior Employment Abroad: One Out of the Last Three Years • Executive • Managerial • Specialized Knowledge • Nature of U.S. Position • Executive • Managerial • Specialized Knowledge

7. L-1A MANAGERS DEFINED: TRADITIONAL • Primary Duties: Manages organization, department or subdivision or a function • Controls work of other professional, supervisory or managerial employees • Cannot be a first-line supervisor • Authority to hire and fire or recommend those actions or other personnel actions • Exercises discretionary authority over day-to-day operations • 7 year maximum period (3 yrs + 2 yrs + 2 yrs)

8. L-1A MANAGERS DEFINED: FUNCTIONAL • Management of an Important Function • Narrowly Define Function • Provide Economic Value of Function, Division or Subdivision Managed • Delineate Discretionary Authorities with Regard to Function, such as Budgetary Responsibilities

9. SPECIALIZED KNOWLEDGE – WHAT EXACTLY IS THE STANDARD? • Proprietary Knowledge • Specialized knowledge of the company’s product and its application in international markets • Advanced level of knowledge of processes and procedures of the company • 5 year maximum period (3 yrs + 2 yrs)

10. L-1 BLANKET PETITIONS • Streamlined Process for Certain Multinational Companies • Qualifying entities pre-adjudicated • Quicker and less costly • Available For: • Executives • Managers • Specialized Knowledge Professional • Degree or Degree Equivalent

11. H-1B VISAS Which Occupations and Foreign Nationals Qualify? • Specialty occupation – Professional position for which a bachelor’s degree is required in an area of specialization (IT professions most commonly processed) • Quota • Permits a maximum period of 6 years of temporary stay (3 yrs + 3 yrs) • Restrictive

12. ATTESTATIONS • LCA filed with Department of Labor • Public Access File • Posting requirement, Payment of Actual Wage, No Strike, Lockout or Work Stoppage and No Adverse Effect on U.S. workers • Return Transportation Obligation if Terminate Employee

13. E-1/E-2 Treaty Requirements • Existing Treaty • Nationality of U.S. Company Must Be Traced Back to the Nationality of the Ultimate Owners/Shareholders. • E-1 Companies Must Demonstrate That They are Engaged in Substantial International Trade between the U.S. and the Treaty Country. • E-2 Companies Must Demonstrate That a Substantial Investment Has Been Made in the U.S. From the Treaty Investors Abroad.

14. E-1/E-2 Treaty Requirements (cont’d) • The U.S. Position Must Be Executive, Supervisory or One Requiring Special Qualifications, e.g. Essential to Operations of the U.S. Company. • The Applicant must Possess the Nationality of the Treaty Country and Be Qualified for the Position.

15. E-1/E-2 Advantages • Apply Directly at the Embassy. • Does Not Require Prior Employment With the Parent Company Abroad. • Spouse May Obtain Employment Authorization.

16. E-1/E-2 Disadvantages • The Applicant Must be the Same Nationality as the Ultimate Owners/Treaty Nationals. • The Category Does Not Allow “Dual” Intent.

17. QUALIFICATIONS UNDER EB-1 STATUS AS MULTINATIONAL EXECUTIVE OR MANAGER • Similar to L-1 Intracompany Transferee • Qualifying relationship between U.S. employer and overseas employer • U.S. position: Executive or Managerial • Position Abroad: Executive or Managerial

18. TWO-STAGE PROCESS • Petition Approval (Form I-140) • Adjustment of Status or Consular Processing • Can maintain L-1/L-2 status while completing process

19. TRADITIONAL PROCESS FOR LOCALLY HIRED EMPLOYEES AND NON-MANAGERIAL TRANSFEREES • Three-Stage Process • Document to Department of Labor that there are no willing, able or qualified U.S. workers for the position (PERM) • National Recruitment Effort • Petition Approval (Form I-140) • Adjustment of Status or Consular Process • Subject to Quota • Current Quota Backlog as of October 2013: • EB-2: India – September 15, 2008 • EB-2: Worldwide – Current • EB-3: India – September 22, 2003 • EB-3: Worldwide – July 1, 2010

20. ICEAudits • 2010 – ICE collects over $50 million in fines for employer violations. • Abercrombie & Fitch pays $1.3 million in fines. • No findings of hiring unauthorized workers. • 2011 – ICE Announces increased employer audits.

21. PURPOSE OF I-9 FORM • All U.S. employers must complete and retain a Form I-9 for each individual they hire for employment in the United States. • This includes citizens and noncitizens. • The employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and relate to the individual and record the document information on the Form I-9. • The list of acceptable documents can be found on the last page of the form.

22. I-9 BASICS • Employers must complete an I-9 for: • New hires • Reverification • When to complete I-9? • Employee must complete Section 1 on the first day of work • Employer must complete Section 2 within three business days • Do not commence I-9 until job offer accepted • How to complete the I-9 • Maintenance of I-9 Records & Retention Requirements

23. USCIS INVESTIGATIONS • USCIS Fraud Detection and National Security Division (FDNS) • Mechanics of H-1B Site Visits • At Employer Site or Client Site • Potential Outcome of Site Visits • How To Prepare for Site Visits

24. Presented by: Kathleen M. Gaber Fazila Vaid Esther Contreras Masuda, Funai, Eifert & Mitchell, Ltd. 200 North Martingale Road, Suite 800 Schaumburg, IL 60173 Phone: 847-734-8811 Email: kgaber@masudafunai.com fvaid@masudafunai.com econtreras@masudafunai.com