Immigration Options for the Entrepreneur

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Visa and Permanent Residence Options for MBA
Students
William A. Stock, Esq. Klasko, Rulon, Stock
Seltzer, LLP Philadelphia New
York 1800 John F. Kennedy Blvd., Floor 17 317
Madison Avenue, Suite 1518 Philadelphia, PA
19103 New York, NY 10017 215.825.8600
212.796.8840
wstock_at_klaskolaw.com www.klaskolaw.com
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William A. Stock, Esq.

• Bill Stock is a founding partner of Klasko,
  Rulon, Stock Seltzer, LLP and has been
  providing immigration assistance and solutions to
  leading universities, research institutions,
  hospitals, multinational corporations, and
  individuals for over 18 years.
• Bill is featured in Chambers Global, Best Lawyers
  in America, Pennsylvania Super Lawyers, Whos Who
  of Business Lawyers and other guides to prominent
  attorneys. He is active in the American
  Immigration Lawyers Association on a national
  level, currently serving as a national Director
  on the Associations Board of Governors and
  chairing two national committees. He is also
  active in NAFSAs Region VIII and as a Regulatory
  Ombudsman for the region on scholar and faculty
  issues.
• Bill is a graduate of the University of Minnesota
  Law School and is a frequent author and lecturer
  on business-related immigration topics and has
  served as an Adjunct Faculty Member at Villanova
  University School of Law.

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2011 Issues

• Fewer job offers/less quota problems
• Fewer employers willing to sponsor
• Impact of layoffs/unemployed U.S. workers
• Mixed bag for investors and entrepreneurs

For more information, visit www.klaskolaw.com
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Employment Options for the F-1 Student

• 20 hours per week on campus
• OPT after complete studies
• 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)

For more information, visit www.klaskolaw.com
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General H-1B Issues

• Employer preconceptions and misconceptions
• Employer requirements
• U.S. employer
• Pay fees
• Post notice
• Keep public examination file

For more information, visit www.klaskolaw.com
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H-1B Visas

• Basic requirements
• Job Offer
• Part-time or full-time
• Bachelors or higher degree
• Determine U.S. equivalence of foreign degree
• Combination of education and experience
• Specialty occupation
• Job requires bachelors or higher degree in
  specific field
• Prevailing wage

For more information, visit www.klaskolaw.com
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H-1B Visas
(contd)

• Procedure and processing time
• File Labor Condition Application with DOL
• File H-1B petition with CIS
• Change of status or consular visa issuance
• Processing time
• 3 to 5 months
• 15 days or less with premium processing

For more information, visit www.klaskolaw.com
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H-1B Visas
(contd)

• Length of approval and extensions
• 3 year initial approval and 3 year extension
• 6 year maximum any combination of employers
• Extensions beyond 6 years
• Recapture time out of U.S.
• 1 year extension if file labor certification
  application or immigrant petition one year before
  expiration
• 3 year extension if immigrant petition approved
  and quota backlog

For more information, visit www.klaskolaw.com
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H-1B Visas
(contd)

• H-1B portability
• Present or prior H-1B
• Commence employment upon new employer filing
  petition
• Spouses
• H-4 cannot work
• Travel
• Dual intent

For more information, visit www.klaskolaw.com
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H-1B Quota

• What is it, and what does it mean?
• 65,000 visas
• Separate quota for US-educated advanced degree
  holders
• 20,000 visas
• Separate options for Canada, Mexico, Australia,
  Chile and Singapore
• TN-1, E-3, H-1B
• Prospects for change
• Timing
• April 1 filing date
• October 1 start date

For more information, visit www.klaskolaw.com
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Quota-Exempt Employment

• Who is not subject to the quota?
• Universities
• Nonprofit institutions affiliated with
  universities
• Employed at university
• Nonprofit or government research organization
• Concurrent employment
• Previous H-1B

For more information, visit www.klaskolaw.com
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Strategies to Enhance Chances of Getting H-1B

• Obtaining masters degree
• Filing multiple years
• Filing first day
• Using previously-obtained degree
• Start your own business
• Apply as H-1B employee?

For more information, visit www.klaskolaw.com
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Travel and Status Issues for H-1B Approvals

• Change of status vs. consular visa issuance
• Travel after April 1
• Maintaining status until October 1
• Cap gap relief

For more information, visit www.klaskolaw.com
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H-1B Issues for Start-Up Business

• Must establish company with employer tax I.D.
  number
• Can company be owned by H-1B employee?
• Must be W-2 employee
• Company separate entity from owner/employee
• Company right of control over employee

For more information, visit www.klaskolaw.com
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H-1B Issuesfor Start-Up Business
(contd)

• Company must prove
• Financial ability to pay salary
• Profits and/or capitalization
• Real job to be done by H-1B
• Place of business

For more information, visit www.klaskolaw.com
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H-1B Issues for Start-Up Business
(contd)

• Other employees or owners required?
• Ability to hire/fire
• Independent Board of Directors
• Importance of business plan/financial projections
• Prevailing Wage
• CEO vs. function-descriptive position

For more information, visit www.klaskolaw.com
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Other Visa Options

• F-1
• Going back to school
• Advantages of Masters or PhD
• Working overseas for U.S. employer
• Entering U.S. as B-1
• Eligibility for L-1 after one year
• Look at spouses status
• Spouse of J, E and L can work
• Country-Specific Options TN-1, E-3, H-1B1

For more information, visit www.klaskolaw.com
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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

For more information, visit www.klaskolaw.com
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Other Nonimmigrant (Temporary) OptionsTreaty (E)
Visas
(contd)

• Visa for 1 to 5 years
• Each entry limited to two years
• Visa and entry can be extended indefinitely
• No quota
• Spouse can work

For more information, visit www.klaskolaw.com
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Other Nonimmigrant (Temporary) Options Treaty
(E) Visas
(contd)

• Treaty traders (E-1)
• Substantial import or export
• Majority between U.S. and treaty country
• Can be manager, supervisor or essential skill
  employee

For more information, visit www.klaskolaw.com
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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

(contd)
For more information, visit www.klaskolaw.com
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Other Nonimmigrant (Temporary) Options Treaty (E)
Visas
(contd)

• Visa applicant can be
• Investor or
• Manager, supervisor or essential employee

For more information, visit www.klaskolaw.com
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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 more information, visit www.klaskolaw.com
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Intracompany Transferee(L-1) Visas
(contd)

• 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

For more information, visit www.klaskolaw.com
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Intracompany Transferee(L-1) Visas
(contd)

• Start-up issues
• Place of business
• Employees
• Capitalization
• Need for manager
• Business plan and financial projections

For more information, visit www.klaskolaw.com
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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 be own company
• Length of visa
• 3 years
• 1 year extensions
• Can extend indefinitely

For more information, visit www.klaskolaw.com
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Trainee (H-3) Visa

• Corporate trainee
• Training not available overseas
• Formal training program required
• Productive employment incidental to training
• Training will qualify for position abroad

For more information, visit www.klaskolaw.com
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Permanent Resident Status

• Family
• Employment
• Investment
• Asylum
• Lottery

For more information, visit www.klaskolaw.com
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Family

• Spouse of U.S. citizen
• No quota wait
• EAD and AP within 3 months
• All other relationships
• Long quota wait
• No interim benefits

For more information, visit www.klaskolaw.com
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Asylum

• Individualized fear of persecution
• Race, religion, nationality, political opinion,
  social group, sexual persuasion

For more information, visit www.klaskolaw.com
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Lottery

• Only specified countries
• One year window
• www.travel.state.gov

For more information, visit www.klaskolaw.com
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Permanent Resident StatusEmployment

• Employer-sponsored or self-sponsored
• Labor certification or extraordinary/national
  interest/exceptional
• Multiple petitions

For more information, visit www.klaskolaw.com
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Permanent Resident StatusEmployment
(contd)

• Self-Sponsored
• Extraordinary ability
• EB-1
• Extensive documentation required
• Reference letters critical
• One of a few at the top of his peers
• National or international recognition

For more information, visit www.klaskolaw.com
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Permanent Resident StatusEmployment
(contd)

• National Interest Waiver
• EB-2
• Standard
• Exceptional ability or advanced degree
• National priority
• National impact
• Extensive documentation required
• Reference letters critical

For more information, visit www.klaskolaw.com
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Permanent Resident StatusEmployment
(contd)

• Employer-Sponsored
• Outstanding Researcher or Professor
• EB-1
• Permanent position
• Similar to extraordinary ability
• Multinational Manager
• EB-1
• Same as L-1 except must be manager or executive
  overseas

For more information, visit www.klaskolaw.com
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Permanent Resident StatusEmployment
(contd)

• Labor Certification Application (PERM)
• EB-2 or EB-3
• Employer must
• Pay attorney fees and advertising costs
• Define minimum requirements
• Engage in required recruitment
• Interview U.S. worker applicants
• Prove unavailability of qualified, interested,
  and available U.S. worker
• Pay prevailing wage
• Not available to owner of business

For more information, visit www.klaskolaw.com
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Permanent Resident StatusEmployment
(contd)

• Timing
• Electronic filing
• Possibility of audit
• First of three steps

For more information, visit www.klaskolaw.com
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Permanent Resident StatusEmployment
(contd)

• 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

For more information, visit www.klaskolaw.com
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Permanent Resident StatusEmployment
(contd)

• 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)

For more information, visit www.klaskolaw.com
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Permanent Resident StatusEmployment
(contd)

• 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

For more information, visit www.klaskolaw.com
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Permanent Resident Status Investment
(EB-5)http//www.eb5immigration.com

• No quota delay
• Amount of investment
• 1,000,000 or
• 500,000 in targeted employment area

For more information, visit www.klaskolaw.com
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Permanent Resident Status Investment (EB-5)
(contd)

• Two possibilities
• Individual investment
• Requires 10 full time US citizens or permanent
  resident employees
• Regional center investment
• Over 170 USCIS - approved regional centers
• Mostly 500,000 investment
• Indirect employment creation ok
• 90-95 of all EB-5 applications

For more information, visit www.klaskolaw.com
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Permanent Resident Status Investment (EB-5)
(contd)

• Some have long, successful history some do not
• Choosing a regional center
• Due diligence list at http//www.eb5immigration.co
  m/choosing-a-regional-center.php
• Investor can live and work anywhere

For more information, visit www.klaskolaw.com
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Permanent Resident Status Investment (EB-5)
(contd)

• Type of business
• Active business
• New business or expansion of existing business
• 40 increase in net worth or number of employees

For more information, visit www.klaskolaw.com
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Permanent Resident Status Investment (EB-5)
(contd)

• Employment creation
• 10 new or 10 additional full-time jobs
• U.S. citizens or permanent residents
• Saving 10 jobs in troubled business

For more information, visit www.klaskolaw.com
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Permanent Resident Status Investment (EB-5)
(contd)

• Lawful source of funds
• Extensive documentation required
• Can be gift
• Must prove giftor's source of funds
• Can borrow money

For more information, visit www.klaskolaw.com
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Permanent Resident Status Investment (EB-5)
(contd)

• Nature of investors 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

For more information, visit www.klaskolaw.com
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Materials

• Please visit www.klaskolaw.com to download this
  PowerPoint presentation and relevant articles.

For more information, visit www.klaskolaw.com
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For more information, visit www.klaskolaw.com
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For Further Information

• William A. Stock, Esq.
• Klasko, Rulon, Stock Seltzer, LLP
• E-mail wstock_at_klaskolaw.com
• Telephone [phone] (Philadelphia)
• 212-796-8840 (New York)
• Websites www.klaskolaw.com
• www.eb5immigration.com
• www.eb1immigration.com
• Blog http//blog.klaskolaw.com