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Visa Options for Student Entrepreneurs Presentation for Harvard UNIVERSITY February 20, 2013

Visa Options for Student Entrepreneurs Presentation for Harvard UNIVERSITY February 20, 2013. Presented by: Iandoli & Desai, PC Richard Iandoli Prasant Desai Madeline Cronin www.iandoli.com. OVERVIEW OF IMMIGRATION CATEGORIES. US CITIZENS FOREIGN NATIONALS

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Visa Options for Student Entrepreneurs Presentation for Harvard UNIVERSITY February 20, 2013

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  1. Visa Options for Student EntrepreneursPresentation for Harvard UNIVERSITYFebruary 20, 2013 Presented by: Iandoli & Desai, PC Richard Iandoli Prasant Desai Madeline Cronin www.iandoli.com

  2. OVERVIEW OF IMMIGRATION CATEGORIES • US CITIZENS • FOREIGN NATIONALS • Immigrants: Lawful Permanent Residents – Immigrants or Green Card Holders • Nonimmigrants: Persons Permitted in US for Temporary Stay • Refugees/Asylees/TPS • Persons present without lawful status www.iandoli.com

  3. Common Nonimmigrant Categories FOR ENTREPRENEURS • B-1: Visitors for business • F-1: Students • E-1/E-2: Treaty traders/investors • E-3: Australian national professionals • H-1B: Professional Workers • H-1B1: Professionals from Chile and Singapore • TN: Canadian and Mexican Professionals • L-1: Intra-company transferees • O-1: Persons of extraordinary ability www.iandoli.com

  4. OPTIONS FOR ENTREPRENEURIAL ACTIVITIES ON STUDENT VISAS Harvard International Office Advises: • F-1 part time OPT while school is in session • F-1 CPT not an option for all F-1 students • Entrepreneurial activities taking place on campus is not considered on campus employment • F-1 OPT for post-completion entrepreneurial activities www.iandoli.com

  5. WHAT Is employment? • No clear-cut definition: Courts and USCIS look to common law to determine if there is a master-servant relationship. “Employee means an individual who provides services or labor for an employer for wages or other remuneration.” (USCIS regulations) • Volunteering-at non-profit organization but in an activity related to major to gain experience? • Volunteering where some are paid and some not for same activity? • Investment – passive vs. active management? • Working on U.S. soil for employer outside of U.S.? • On campus/off campus? • Working on scholarships or stipends? • Hobbies--student’s painting hobby receives attention by others and people offer money for the paintings?

  6. Consequences of Unlawful Employment Students working without authorization: • Status violation • Forfeit eligibility for CPT and OPT • No Change of Status, no Extension of Stay, no Adjustment to Permanent Resident • How are violations discovered? - When requesting benefit from DHS and denied - Worksite raid/audit • Student is then deportable/removable

  7. B-1 Business visitor • Must have residence abroad • Must receive compensation from abroad • Consulting with business associates • Traveling for a scientific, educational, professional or business convention, or a conference on specific dates • Settling an estate • Negotiating a contract • Participating in short-term training www.iandoli.com

  8. Establishing your business • Will USCIS Perceive as a Real, Viable Business? • Timing Considerations • Capital • Business Plan • Articles of Incorporation • Business License • Media • Patent Applications • Lease www.iandoli.com

  9. H-1B Professionals BENEFITS: • No “intent” problems as in F or J or TN status • Can have concurrent H-1B employment • Part-time permitted • H-1B’s are non-competitive • Part-time study allowed • Spouse & minor children eligible for H-4 status LIMITATIONS: • Requires Employer • H-1B stay generally may not exceed 6 years, exceptions apply • 6 year clock rewinds if worker spends 1 year outside US www.iandoli.com

  10. ANNUAL H-1B QUOTA & TIMING • Annual, national quota of 65,000 new H-1B positions • Additional 20,000 H-1Bs for holders of a U.S. master’s degree or higher • Colleges, universities & affiliated non-profits exempt from quota • Other cap exemptions • Petitions ideally filed during 1st five business days beginning April 1st each year (if tight economy, must be filed then) • Cap gap protection for F-1 students on OPT www.iandoli.com

  11. Establishing employer / employee relationship • Control & Supervision (Master/Servant) • Board of Directors • Employer/Employee Contract • Minority stock holders www.iandoli.com

  12. E-1/E-2Traders/Investors • Available to a citizen of a country that has a treaty of commerce and navigation (trade) with the U.S. • Approximately 83 countries have treaties with U.S. http://www.state.gov/documents/organization/87221.pdf • Two types of E visas each with distinct requirements • A treaty may encompass both E-1 and E-2, while some are limited to one www.iandoli.com

  13. E-1/E-2 • E-1 Treaty Traders • Investment that promotes substantial trade in goods or services b/w US and home country • Trade need not be exclusively between home country and US but should be at least 51% • Substantiality test: • flow of the goods or services exchanged must be continuous and numerous transactions over time. • Volume and monetary value taken into account • Income produced by US operations must be large enough to support alien, his/her family and other workers. Must not be marginal enterprise—venture which only supports Applicant • No minimum $$ amounts required • E-2 Treaty Investor • Investment in a commercial enterprise • Investment must be substantial and at risk • May not count money that is secured by assets to be purchased • Cash secured by applicant’s personal assets may be counted • Amount of cash at risk must be proportional to cost of business • Sliding scale: for business that normally requires $100,000 for purchase, cash invest would need to approach 100% • Commercial enterprise must not be marginal www.iandoli.com

  14. E-1/2Common Issues • E’s must seek to develop and direct the U.S. operations of the qualifying business • E’s are not required to have a home abroad • Status is available for the life of the US business; must renew periodically • Nationality of individuals determined by country of claimed nationality (dual nationals must choose) • Nationality of business entity determined by nationality of shareholders • Applicant for E classification must own at least 50% of U.S. enterprise www.iandoli.com

  15. Free Trade Agreement Professionals • NAFTA: Mexico and Canada • Offered job must be one that is identified by the treaty • Approximately 63 occupations identified • Examples: Accountants; Economists; Computer Systems Analysts; Technical Writers; Management Consultants; Engineers; Scientific Technicians • 3 year admission; extendable in 3 year increments • FTA: Singapore and Chile • Open to any specialty occupation • Employer required to make wage attestations • 1 year admission; extendable in 1 year increments • USCIS action not required if worker is abroad • Worker may apply for visa directly at US consulate; no USCIS pre-approval required • Worker must demonstrate that she has permanent home outside of US that she will return to at the end of stay www.iandoli.com

  16. L-1: Intra-company transferees • Requires sponsorship by U.S. employer • Employee must have worked abroad for one complete year in the last three years • Qualifying employment must be with the Parent, Branch, Subsidiary or Affiliate of the U.S. employer • L-1A – 7 years for Executive or Manager • L-1B – 5 years for a person with ‘specialized knowledge’ www.iandoli.com

  17. L-1 Definitions • Executive, Manager, and Specialized Knowledge Worker are terms of art • Executive primarily • General supervision from higher level executives, board of directors, or stockholders • Wide latitude • Establishes goals and policies • Directs management and or major component of company • Manager primarily • Manages function of company and operates with high level of autonomy, or • Manages department/component of organization • Supervises and controls workers, with authority to hire and fire or recommend such action • Specialized Knowledge • Worker must have special (unusual) knowledge of the company’s products and/or systems • USCIS has wide latitude in adjudications because of nature of terms • Although not required, worker with proprietary knowledge that is restricted within company should qualify as “specialized” www.iandoli.com

  18. O-1: PERSON OF EXTRAORDINARY ABILITY • The O-1(a) category is for aliens of extraordinary ability in the sciences, arts, education, business or athletics. • A foreign national may prove that he or she meets this standard by providing evidence of either: • 1. Receipt of a "major, internationally recognized award, such as the Nobel Prize”; or • 2. Documentation of at least 3 of the following eligibility criteria: www.iandoli.com

  19. O-1(A) CRITERIA • Receipt of lesser nationally or internationally recognized prizes/awards • Membership in associations that demand outstanding achievement of their members • Published material about the alien in professional publications • Evidence that the alien has judged the work of others, either individually or on a panel • Evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field; • Evidence of the alien's authorship of scholarly articles in professional or major trade publications or other major media; • Evidence that the alien's work has been displayed at artistic exhibitions or showcases; • Performance of a leading or critical role in distinguished organizations. • Miscellaneous: If listed criteria do not readily apply, comparable evidence of eligibility may be submitted www.iandoli.com

  20. PATHWAYS TO Lawful Permanent Residence • Family Based • Employment Based • Diversity Lottery • Investment • Asylum/Refugee • Cancellation of Removal • Registry • Others: VAWA, Comprehensive Immigration Reform (CIR) www.iandoli.com

  21. PRIMARY EMPLOYMENT BASED CATEGORIES • EB-1(a) Persons of Extraordinary Ability • EB-1(b) Outstanding Professors & Researchers • EB-1(c) Multinational Managers & Executives • EB-2 Master’s Degree/Exceptional Ability/National Interest Waiver • EB-3 Bachelor’s Degree/Skilled Workers www.iandoli.com

  22. CATEGORY & COUNTRY QUOTA BACKLOGS • Annual Quota is divided by Category and Country of Chargeability • The backlogs occur both in the category and country queues. See: Visa Bulletin in materials • Significant backlogs in some categories and for some countries • Planning the entire process early, while maintaining legal nonimmigrant status is critical www.iandoli.com

  23. VISA BULLETIN march 2013 www.iandoli.com

  24. EB-1(A): PERSONS OF EXTRAORDINARY ABILITY • The EB-1(A): Persons of extraordinary ability in the sciences, arts, education, business or athletics. May Self-Sponsor • Must present evidence of either: • Receipt of a "major, internationally recognized award, such as the Nobel Prize”; or • Documentation of at least three of the following eligibility criteria: www.iandoli.com

  25. EB-1(A) ELIGIBILITY CRITERIA • Lesser nationally or internationally recognized prizes • Membership in associations which demand outstanding achievement of their members • Published material about the alien in major media • Judging the work of others • Original scientific, scholarly, artistic, athletic, or business-related contributions of major significance to the field www.iandoli.com

  26. EB-1(A) ELIGIBILITY CRITERIA(Continued) • Authorship of scholarly articles in professional or major trade publications or other major media • Work has been displayed at artistic exhibitions or showcases • Performance of a leading or critical role in distinguished organizations • Having commanded a high salary or other remuneration in comparison to others in the field • Evidence of commercial success in the performing arts • Miscellaneous: If listed criteria do not readily apply, comparable evidence of eligibility may be submitted www.iandoli.com

  27. EB-2 MASTERS DEGREE OR EXCEPTIONAL ABILITY • Foreign National possesses Master’s Degree or Equivalent OR be of “Exceptional Ability” AND • Labor Certification for a job which requires a Master’s Degree or Equivalent OR • National Interest Waiver (NIW) (NIW May Self-Sponsor) www.iandoli.com

  28. NATIONAL INTEREST WAIVER • Examples of work deemed to be in the “National Interest” of the United States are pursuits that: • Promote economic development • Improve wages and working conditions • Improve education and training programs for children and under-qualified workers • Improve health care, or • Provide more affordable housing for the young and/or old and poor • Must show that national interest will be adversely affected if waiver is not granted www.iandoli.com

  29. Labor Certification--PERM • Test of US job market to ensure hiring foreign national will not take job from qualified US worker • Advertisements in newspapers and websites • Often counterintuitive, “minimally qualified” standard • Position must be offered at prevailing wages www.iandoli.com

  30. RECAP OF PRIMARY EMPLOYMENT-BASED IMMIGRANT CATEGORIES • EB-1A may self-sponsor and does not need Labor Certification • EB-2’s do need labor certification and employer sponsor unless National Interest Waiver • EB-3’s DO need Labor Certification and employer sponsor www.iandoli.com

  31. EB-5 investor visa • Investor must invest $500,000 to $1,000,000 in a commercial enterprise—any lawful for-profit activity. • Enterprise must be new: • Established after Nov. 29, 1990, or • Established on or before Nov. 29, 1990, that is: • 1. Purchased and the existing business is restructured or reorganized in such a way that a new commercial enterprise results, or • 2. Expanded through the investment so that a 40-percent increase in the net worth or number of employees occurs • Create or preserve 10 Full Time U.S. worker jobs within 2 years • May invest in DHS approved Regional Investment Center www.iandoli.com

  32. FAMILY BASED • Sponsored by U.S. Citizen: • Parent • Spouse • Son or Daughter – married or unmarried • Sister or Brother • Sponsored by Lawful Permanent Resident • Spouse • Unmarried son or daughter • Many Family Based Immigration Categories are also subject to Quota (see Visa Bulletin for Backlogs), except for Immediate Relatives. www.iandoli.com

  33. COMPREHENSIVE IMMIGRATION REFORM POSSIBILITIES • Dual intent for student visa holders • Increasing the H-1B quota • Authorizing employment for spouses of H-1B visa holders • Recapturing green card numbers • Increase in Immigrant Visa quotas • Reforming fees on H-1B visas and employment-based green cards www.iandoli.com

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