Klasko, Rulon, Stock and Seltzer, LLP Visa and Permanent Residence Options for the MBA Student Wharton Business School H. Ronald Klasko, Esq. Klasko, Rulon, Stock and Seltzer, LLP Philadelphia New York 1800 JFK Blvd. Suite 1700 317 Madison Ave. Suite 1518 Philadelphia, PA 19103 New York, NY 10017 215.825.8600 212.796.8840 www.klaskolaw.com

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

2009 Issues Fewer job offers H-1B quota Impact of layoffs Increased opportunities for investors and entrepreneurs

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)

H-1B Basics Need employer sponsorship Employer obligations fees prevailing wage posting notice public examination file Specialty occupation Employer misconceptions and preconceptions Advantage of “Portability” Part-time or Full-time

New H-1B Hurdles Employers receiving TARP funds Recruitment Must hire equally qualified U.S. Citizen

H-1B Quota Numbers Quota used up File April 1; Start October 1 65,000 20,000 extra for U.S. masters Quota used up Past years 2009 File April 1; Start October 1 Employment during “cap gap” Travel Issues

Quota Exempt H-1B University Non-profit company “Affiliated” with university Research organization Employed “at” university or other quota-exempt employer Concurrent employment Previous H-1B

Strategies to Enhance Chances of Getting H-1B Obtaining masters degree Filing multiple years Filing first day Using previously-obtained degree Combination of education and experience Start your own business Apply as H-1B employee

H-1B Visas 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

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 employee Company separate entity from owner/employee

H-1B Issues for Start-Up Business (cont’d) Company must prove Financial ability to pay salary Profits and/or capitalization Real job to be done by H-1B Place of business

H-1B Issues for Start-Up Business (cont’d) Importance of business plan/financial projections Other employees helpful – not required Prevailing Wage CEO vs. function-descriptive position

Other Visa Options F-1 Working overseas for U.S. employer 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 spouse’s status Spouse of J,E and L can work Country-Specific Options: TN-1, E-3, H-1B1

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

Other Nonimmigrant (Temporary) Options Treaty (E) Visas (cont’d) Visa for 1 to 5 years Each entry limited to two years Visa and entry can be extended indefinitely No quota Spouse can work

Other Nonimmigrant (Temporary) Options Treaty (E) Visas (cont’d) Treaty traders (E-1) “Substantial” import or export Majority between U.S. and treaty country Can be manager, supervisor or “essential skill” employee

Other Nonimmigrant (Temporary) Options Treaty (E) Visas (cont’d) 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

Other Nonimmigrant (Temporary) Options Treaty (E) Visas (cont’d) Visa applicant can be Investor or Manager, supervisor or essential employee

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

Intracompany Transferee (L-1) Visas (cont’d) 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

Intracompany Transferee (L-1) Visas (cont’d) Start-up issues Place of business Employees Capitalization Need for “manager” Business plan and financial projections

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

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

Permanent Resident Status Family Employment Investment Asylum Lottery

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

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

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

Permanent Resident Status Investment(EB-5) http://www. eb5immigration No quota delay Amount of investment $1,000,000 or $500,000 in “targeted employment area”

Permanent Resident Status Investment (EB-5) (cont’d) Type of investment Generally cash “At risk” Cannot use debt with investment enterprise as collateral

Permanent Resident Status Investment (EB-5) (cont’d) Type of business Active business New business or expansion of existing business 40% increase in net worth or number of employees

Permanent Resident Status Investment (EB-5) (cont’d) Employment creation 10 new or 10 additional full-time jobs U.S. citizens or permanent residents Saving 10 jobs in “troubled business”

Permanent Resident Status Investment (EB-5) (cont’d) Lawful source of funds Extensive documentation required Can be gift Must prove giftor's source of funds Can borrow money

Permanent Resident Status Investment (EB-5) (cont’d) Nature of investor’s 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

Permanent Resident Status Investment (EB-5) (cont’d) Two possibilities Individual investment See above Regional center investment Approximately 30 USCIS – approved regional centers Mostly $500,000 investment Indirect employment creation ok

Permanent Resident Status Investment (EB-5) (cont’d) 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

Permanent Resident Status Employment Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions

Permanent Resident Status Employment (cont’d) Self-Sponsored Extraordinary ability EB-1 Extensive documentation required Reference letters critical

Permanent Resident Status Employment (cont’d) National Interest Waiver EB-2 Standard Exceptional ability or advanced degree National priority National impact Extensive documentation required Reference letters critical

Permanent Resident Status Employment (cont’d) Employer-Sponsored Outstanding Researcher or Professor EB-1 “Permanent position” Similar to extraordinary ability Multinational Manager Same as L-1 except must be manager or executive overseas

Permanent Resident Status Employment (cont’d) 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

Permanent Resident Status Employment (cont’d) Timing Electronic filing Possibility of audit First of three steps

Permanent Resident Status Employment (cont’d) 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

Permanent Resident Status Employment (cont’d) 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)

Permanent Resident Status Employment (cont’d) 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

Questions?

For Further Information H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP rklasko@klaskolaw.com 215-825-8600 (Philadelphia) 212-796-8840 (New York) www.klaskolaw.com www.eb5immigration.com