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Visa and Permanent Visa and Permanent Residence OptionsResidence Options for the Entrepreneurial Student
Harvard Business School
H. Ronald Klasko, Esq.Klasko, Rulon, Stock and Seltzer, LLPKlasko, Rulon, Stock and Seltzer, LLP
Philadelphia New York1800 JFK Blvd. Suite 1700 317 Madison Ave. Suite 1518Philadelphia, PA 19103 New York, NY 10017215.825.8600 212.796.8840
www.klaskolaw.com
Klasko, Rulon, Stock & Seltzer, LLP
H. Ronald Klasko, Esq.
Ron Klasko is the Managing Partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to universities, hospitals, and research institutions for over 25 years.
Ron is a past National President of the American Immigration Lawyers Association and served for 3 years as the bar association’s General Counsel. His firm is the first immigration law firm global partner of NAFSA: Association of International Educators. Mr. Klasko has been invited by more than 25 universities and hospitals to address students and scholars.
Ron has been selected as one of six top tier immigration lawyers in the US by The Chambers Global Guide. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers 2007 and 2008 Corporate Immigration Law edition selected Ron as the “most highly regarded” immigration lawyer in the world. He is a frequent author and lecturer on hospital and university-related immigration law topics and is a former Adjunct Professor of Immigration Law at Villanova University Law School.
Ron is a graduate of the University of Pennsylvania School of Law
Klasko, Rulon, Stock & Seltzer, LLP
2009 Issues
■ Fewer job offers■ H-1B quota■ Impact of layoffs■ Increased opportunities for investors and
entrepreneurs
Klasko, Rulon, Stock & Seltzer, LLP
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 studiesSee “Murky F-1 Employment Issues” (
http://www.klaskolaw.com)
Klasko, Rulon, Stock & Seltzer, LLP
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 employeeCompany separate entity from
owner/employee
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Issues for Start-Up Business
Company must proveFinancial ability to pay salary
Profits and/or capitalization
Real job to be done by H-1BPlace of business
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Issues for Start-Up Business
Importance of business plan/financial projections
Other employees helpful – not required Prevailing Wage
CEO vs. function-descriptive position
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Issues for Start-Up Business
“Specialty Occupation”Use of concepts learned in courses
H-1B QuotaPast years2009What it meansEmployment during “cap gap”
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Issues for Start-Up Business
Quota-exempt H-1B Non-profit company
“Affiliated” with university Research organization
Employed “at” university or other quota- exempt employer
Concurrent employment Previous H-1B
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
(cont’d)
Other Nonimmigrant (Temporary) Options Treaty (E) Visas
Visa for 1 to 5 yearsEach entry limited to two yearsVisa and entry can be extended indefinitely
No quota Spouse can work
Klasko, Rulon, Stock & Seltzer, LLP
■ Treaty traders (E-1)“Substantial” import or exportMajority between U.S. and treaty countryCan be manager, supervisor or “essential
skill” employee
(cont’d)
Other Nonimmigrant (Temporary) Options Treaty (E) Visas
Klasko, Rulon, Stock & Seltzer, LLP
■ 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)
Other Nonimmigrant (Temporary) Options Treaty (E) Visas
Klasko, Rulon, Stock & Seltzer, LLP
■Visa applicant can be Investor orManager, supervisor or essential employee
(cont’d)
Other Nonimmigrant (Temporary) Options Treaty (E)
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
Intracompany Transferee (L-1) Visas
■ 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
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Intracompany Transferee (L-1) Visas(cont’d)
Start-up issues Place of business Employees Capitalization Need for “manager” Business plan and financial projections
Klasko, Rulon, Stock & Seltzer, LLP
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
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident Status
Family Employment Investment Asylum Lottery
Klasko, Rulon, Stock & Seltzer, LLP
Quotas
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
Klasko, Rulon, Stock & Seltzer, LLP
Quotas
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
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Investment (EB-5) http://www.eb5immigration.com
No quota delay Amount of investment
$1,000,000 or$500,000 in “targeted employment area”
Klasko, Rulon, Stock & Seltzer, LLP
Investment (EB-5)
Type of investmentGenerally cash“At risk”Cannot use debt with investment enterprise
as collateral
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Investment (EB-5)
Type of businessActive businessNew business or expansion of existing
business 40% increase in net worth or number of employees
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Investment (EB-5)
Employment creation10 new or 10 additional full-time jobsU.S. citizens or permanent residentsSaving 10 jobs in “troubled business”
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Investment (EB-5)
Lawful source of funds Extensive documentation required Can be gift
Must prove giftor's source of funds
Can borrow money
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Investment (EB-5)
Nature of investor’s relationship to businessDo not have to be employee (but can)Do not have to be owner (but can)
Cannot be purely passive Limited partner ok
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Investment (EB-5)
Two possibilities Individual investment
See above
Regional center investment Approximately 30 USCIS – approved regional
centers Mostly $500,000 investment Indirect employment creation ok
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Investment (EB-5)
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
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Investment (EB-5)
Choosing between individual and regional center investment
http://www.eb5immigration.com/regional-centers-vs-individual-eb-5.php
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusEmployment
Employer-sponsored or self-sponsored Labor certification or extraordinary/national
interest/exceptional Multiple petitions
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusEmployment
Self-SponsoredExtraordinary ability
EB-1 Extensive documentation required Reference letters critical
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusEmployment
National Interest Waiver EB-2 Standard
Exceptional ability or advanced degree National priority National impact
Extensive documentation required Reference letters critical
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusEmployment
Employer-SponsoredOutstanding 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
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusEmployment
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
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusEmployment
Timing Electronic filing Possibility of audit First of three steps
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusEmployment
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
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusEmployment
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)
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Permanent Resident StatusEmployment
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
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
For Further Information
H. Ronald Klasko, Esq.Klasko, Rulon, Stock & Seltzer, LLP
215-825-8600 (Philadelphia)
212-796-8840 (New York)
www.klaskolaw.comwww.eb5immigration.com