February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.1 MICPEL CLE Seminar The Nuts and Bolts of Immigration Practice Alternative Employment Visa Options to H-1B By: Michael L. Kabik, Esq. © 2005 Immigration, Nationality & Consular Practice Group Shulman, Rogers, Gandal, Pordy & Ecker, P.A Rockville Pike, Suite 300, Rockville, Maryland U.S.A. Telephone: (301) Facsimile: (301) Web Site:

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.2 Alternatives to H-1B F-1 Optional Practical Training (OPT) TN NAFTA Professional(Canada/Mexico) FTA H-1B Professional (Chile/Singapore) E-1 Treaty Trader E-2 Treaty Investor

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.3 Alternatives to H-1B L-1 Intracompany Transferee O-1 Extraordinary Ability P-1 Athletes and Entertainers J-1 Trainee

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.4 Alternatives to H-1B F-1 – Optional Practical Training University students 1 year validity period (cumulative) Breaks during degree Post degree Limited to field related to academic study Non-employer specific

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.5 Alternatives to H-1B F-1 – Optional Practical Training Impact of future expirations F-1 60 day grace period Without employment authorization Past FYs CIS Cap Gap regulation for F-1 with D/S Maintenance of valid status

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.6 Alternatives to H-1B H-1B Cap issues for F-1 OPT Recruitment Remainder of FY-2005 Strategic planning to avoid Delayed start new H-1B employees Interruptions to existing employees changing to H-1B status

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.7 Alternatives to H-1B Strategic Planning FY-2005 H-1B cap hit on 10/1/2004 When will FY-2006 H-1B cap hit? Accelerated H-1B Filings for F-1 OPTs with FY-2006 expiration dates Premium Processing Identify potential employees not subject to H-1B cap

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.8 Alternatives to H-1B TN – NAFTA Professional Employer specific U.S. Employers Canadian or Mexican Employers Limited to Canadians and Mexicans 67 specified professions 1 Year maximum admission Indefinite extensions

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.9 Alternatives to H-1B TN – NAFTA Professional Canadians visa exempt Apply directly at Border or POE Mexicans require TN Visa Apply directly at U.S. Consular Post Changes as of January 2004 –5,500 FY Cap eliminated –LCA approval eliminated –I-129 approval eliminated

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.10 Alternatives to H-1B H-1B – FTA Professional U.S.-Chile Free Trade Agreement Effective January 2004 Limit – 1,400 per FY U.S.-Singapore Free Trade Agreement Effective January 2004 Limit – 5,400 per FY Specialty Occupation requirement

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.11 Alternatives to H-1B H-1B – FTA Professional LCA requirement Primary U.S. Consular Posts Limited to 18 months No Dual Intent as with regular H-1Bs Required to overcome presumption of Immigrant Intent After 5 renewals, counts against regular H- 1B cap

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.12 Alternatives to H-1B E-1 – Treaty Trader Employer Specific No prior employment reqd (unlike L-1) Treaty must exist – U.S. & other country Majority ownership/control of U.S. entity At least 50% by treaty country nationals Alien must be citizen of treaty country 2 Year maximum visa validity period Indefinite extensions Initial consular jurisdiction abroad

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.13 Alternatives to H-1B E-1 Special Requirements Trade Exchange, purchase, or sale of goods, services or technology Substantial No minimum dollar threshold Volume of trade Number of transactions Includes binding contracts Continued course of trade

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.14 Alternatives to H-1B E-1 Special Requirements Principally with U.S. 50%+ of total volume of international trade of the U.S. entity must consist of trade between U.S. and treaty country Duties Supervisory, Executive, Managerial Highly Specialized Essential Skills Not including ordinarily skilled workers

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.15 Alternatives to H-1B E-2 – Treaty Investor Employer specific No prior employment reqd (unlike L-1) Treaty must exist - U.S. & other country Majority ownership/control of U.S. entity At least 50% by treaty country nationals Alien must be citizen of treaty country 2 Year maximum visa validity period Indefinite extensions Initial consular jurisdiction abroad

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.16 Alternatives to H-1B E-2 Special Requirements Active investment Irrevocable commitment of funds Actual active investment Substantial investment No minimum dollar amount – Standards for new or existing business Investment in process – start up company Investors own resources At risk

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.17 Alternatives to H-1B E-2 Special Requirements Creation of jobs Cannot be marginal –To only support the investor & his family Create job opportunities for U.S. workers Significant impact upon U.S. Essential role in enterprise Investor to develop and direct investment Executives, Supervisors, Specially Qualified Essential employee Not including ordinarily skilled workers

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.18 Alternatives to H-1B L-1 – Intracompany Transferee Employer specific Alien must be employed abroad by foreign entity 1 continuous year out of prior 3 years In Executive, Managerial, or Specialized Knowledge position Transfer to U.S. to fill Executive, Managerial, or Specialized Knowledge position

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.19 Alternatives to H-1B L-1 – Intracompany Transferee Foreign entity must be related to U.S. company Same company Subsidiary Affiliate Qualifying Organization Doing business in U.S. and other country During whole period of transfer

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.20 Alternatives to H-1B L-1 – Intracompany Transferee L-1A -- Executives & Managers L-1B -- Specialized Knowledge Personnel Visa Validity Terms 5-7 Year Maximum (3 years initially) Start-Ups (1 year initially) EB-1 Greencard Benefit

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.21 Alternatives to H-1B O-1 – Extraordinary Ability Employer specific Aliens of Extraordinary Ability Sciences, Arts, Education, Business &Athletics 3 Year maximum visa validity period Unlimited extensions EB-1 Greencard Benefit

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.22 Alternatives to H-1B O-1 Criteria Receipt of a major internationally recognized award e.g., the Nobel Prize Receipt of 3/10 of other forms documentation

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.23 Alternatives to H-1B O-1 – 3/10 Criteria Nationally/Intlly recognized prizes/awards for excellence in the field of endeavor Membership in associations in the field which require outstanding achievements as judged by recognized natl or intl experts Published material about the person in professional or major trade publications or other major media

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.24 Alternatives to H-1B O-1 – 3/10 Criteria Participation (on a panel or individually) as a judge of the work of others in the field Original scientific, scholastic, artistic, athletic or business-related contributions of major significance in the field Authorship of scholarly articles in the field in professional journals or major media

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.25 Alternatives to H-1B O-1 – 3/10 Criteria Employment in a critical or essential capacity for organizations or establishments that have distinguished reputations High salary or other high remuneration in relation to others in the field Other comparable evidence

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.26 Alternatives to H-1B J-1 – Trainee Exchange Visitor Designation Training not available in home country Dept. of State jurisdiction Apply via DOS approved Program Sponsors 18 Month maximum

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.27 Legal Disclaimer Facts of individual cases differ The information provided herein is general in nature and should not be relied upon Consult with an experienced immigration attorney with regard to specific cases