Presented by: Mark A. Urbanski, Esq. Immigration Attorney Law Offices of Mark A. Urbanski, PLLC Washington, DC Office: 1875 I St., NW, Fifth Floor, Washington, D.C Virginia Office: Hedgewood Dr., Ste. 201, Woodbridge, VA Phone: (DC) (VA) Internet: (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

About Mark A. Urbanski, Esq. B.S. Cornell University J.D. State University of New York Member, American Immigration Lawyers Association since 1996 Admitted to N.Y. & D.C. bar, and numerous U.S. Federal Courts Practice Limited to Immigration Law for 18 years Offices in Washington, D.C. and Woodbridge, V.A. Represents individuals, students, scholars, small businesses, large corporations, investors, educational institutions, hospitals, and municipalities in all aspects of immigration law. (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

Important Disclaimer: This presentation and any information provided are solely for educational purposes and should not be construed or relied upon as legal advice nor as creating an attorney-client relationship. (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

Topics to be Discussed: Introduction to US Immigration System H-1B Professional Working Visas O-1 Outstanding Ability Aliens E-2 Treaty Investors Employment-Based Immigration Labor Certification EB-2 vs. EB-3 National Interest Waivers EB-1: Extraordinary Ability EB-5 Investors (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

Introduction to U.S. Immigration Terminology Nonimmigrant vs. Immigrant Permanent Residence (Green Card) vs. Citizenship Visa vs. Status Adjustment of Status vs. Consular Processing Preference System (numerical limitations) Sponsorship the rule, with some exceptions Relevant U.S. Government Agencies Department of Homeland Security (DHS) U.S. Citizenship & Immigration Services (USCIS) U.S. Immigration & Customs Enforcement (ICE) U.S. Customs and Border Protection (CBP) Department of State (DOS) Visa Office, National Visa Center (NVC) & Consulates Department of Labor (DOL) Social Security Administration (SSA) Internal Revenue Service (IRS) (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

H-1B Professional Working Visas Basics Requirements: Position requires “Specialized Knowledge” Worker possess BA/BS degree Nexus between job and degree Duration: 6 years total (3yr. Increments) Dual-Intent Visas (Compatible with LPR process) Normal processing time is 2-4 months, but eligible for premium processing (15 business days) H-4 Spouse not allowed to work (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

H-1B Professional Working Visas (continued) Numerical Limitation 65,000 total visas 20,000 additional visas for U.S. “master’s cap” Exempt employers– universities, hospitals, certain non- profits, etc. Quota opens each October 1 (start of Federal fiscal year) Allowed to apply up to 6 months early, or April 1 for October 1 start date Unless cap-exempt, when they’re gone they’re gone If more visas are received than are available, a lottery system is applied (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

H-1B Professional Working Visas (continued) Considerations and Features Employer Specific (but can have multiple H-1B’s) Must be paid at prevailing wage or higher (for location and job title)… some exceptions (wage survey, union contract, etc.) Prerequisite to obtain a Labor Condition Application (LCA) from DOL prior to filing with USCIS Employer must pay certain filing fees (and deductions can not drop worker below prevailing wage) Allow 2-4 weeks preparation time minimum “Cap Gap” May/June through October 1… may be allowed to work Can go beyond 6 year limit if Labor Certification or I-140 filed prior to 5-year point of H-1B status USCIS has much larger budget for site inspections and enforcement… be prepared Must be W-2 worker, not 1099 (employee, not independent contractor)… right to control crucial (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

Other Nonimmigrant Options: O-1 (Outstanding Ability) O-1 vs. H-1B Advantages Not subject to annual numeric cap Professional degrees not required No specific wage requirement (LCA not required) No training or fraud prevention fees (saves $1,250-2,000) Agents may file the petition Disadvantages Not everyone who can qualify for an H-1B can qualify for an O-1 (much harder to qualify) Not dual-intent (although not generally a problem) (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

Other Nonimmigrant Options: O-1 (Outstanding Ability) Features of O-1 O-1A: Persons of extraordinary ability in the sciences, arts, education, business or athletics. O-1B: Persons of extraordinary achievements in motion picture or television industry. O-3: Spouses and children of O-1 Principals Extraordinary demonstrated by “sustained national or international acclaim” (O-1A) or “national or international achievement” (O-1B) To qualify, must be the recipient of a major internationally recognized award such as the Nobel prize (sufficient) or at least 3 out of 8 of the following: Receipt of nationally or internationally recognized prizes or awards for excellence in the field Membership in associations that require outstanding achievement Published materials about applicant in major trade journals in the field or in the media Served as a judge of the work of others either individually or in a panel Scientific, scholarly, or business-related contributions of major significance in the field Authorship of scholarly articles in professional journals or other media Employed in a critical or essential role with organizations with a distinguished reputation Has commanded high compensation (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

Other Nonimmigrant Options: E-2 (Treaty Investors) Features No numerical limitation Nationality of dependent not relevant E-2 spouse may obtain EAD Length of visa depends of reciprocity (up to 5 years) but continually renewable (no time limit!) May be consular processed or change status in U.S. Unlike H-1B and other categories, consulate must re- adjudicate E-2 GREAT option for start-ups and entrepreneurs (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

Other Nonimmigrant Options: E-2 (Treaty Investors) Requirements Investor must be national of treaty country Investment enterprise must have nationality of treaty country Has invested or is actively in the process of investing ( Funds must be “at risk”) Legal source of funds Must be a “commercial enterprise” Investor must “develop and direct” enterprise (not passive) Investment must be “substantial” (usually $100,000 or more is enough) Investment must not be “marginal” (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

Employment-Based Immigration EB-1 Outstanding Professor/Researcher, Multinational Manager/Executive, Outstanding Ability Alien (in arts, science, business, education or athletics) EB-2 Advanced Degree Professional* and National Interest Waiver EB-3 Skilled and Professional Worker* EB-4 Special Immigrant EB-5 Immigrant Investor *Labor Certification Required (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

Employment-Based Immigration (continued) Labor Certification Immigrant Petition Consular Processing Adjustment of Status Work Permit Advance Parole Current Priority Date (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

Labor Certification Test of U.S. Labor Market to determine if U.S. Citizen available Must first obtain official prevailing wage determination (60 days) Then min. 60 day recruitment period (3 ads, or 5 if professional) Uses PERM Online Filing System 6-12 month processing time Filing of LC establishes priority date Must meet minimum job requirements Skilled = requires BA/BS degree or higher or 2+ years of experience Based on an OFFER of permanent, full-time employment (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

EB-2 vs. EB-3 EB-2 requires both that you have an advanced degree (Masters or higher) AND that the position also requires that degree Can also use Bachelor’s plus 5 years of progressive experience to qualify for EB-2 Schedule A, Group I professions can waive labor certification (EB-2 or EB-3), currently just nurses and physical therapists EB-2 also offers Schedule A, Group II option for an “ alien of exceptional ability in the sciences, arts or business”… no labor cert. required, but employer sponsorship is Exceptional ability is defined as “a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business” Therefore, EB-2 is often riskier since requirements can be scrutinized by DOL and USCIS (and audited) Main advantage of EB-2 has been shorter waiting time (current priority dates for most countries), but that has changed recently EB-3 down to around 1.5 years in Visa Bulletin (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

National Interest Waivers As name implies, requests that labor certification requirement be waived Only EB-2 petition category which does NOT require employer sponsorship Must meet general EB-2 requirements (advance degree, or bachelor’s plus 5 years progressive experience, etc.) Must satisfy the requirements of the three-prong test laid out in New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998): The beneficiary must seek to work in an area of substantial intrinsic merit The beneficiary’s work must have a benefit which will be national in scope The beneficiary must serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications. The national interest would be adversely affected if a labor certification were required for the beneficiary. Must keep in mind that national interest of the UNITED STATES is what counts To qualify, must really demonstrate “what makes you so special”… that the U.S. can not do without you (no one else can do what you do) (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

EB-1: Extraordinary Ability No labor certification required, and can self-petition, but must show coming to work in area of expertise For EB-1, must have “extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation.” Extraordinary ability is defined as “a level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.” Also a category of EB-1 for “Outstanding Professors or Researchers”… requires employment in Academia, 3 years post- degree experience, and evidence of “outstanding ability.” (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

EB-1: Extraordinary Ability Receipt of recognized major international award Or at least 3 of: Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of endeavor Membership in associations in the field for classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields Published material about the alien in professional/major trade publications or other major media, relating to the alien’s work in the field for which classification is sought. Evidence of the alien’s participation (individually or on a panel) as a judge of the work of others in the same or an allied field of specialization for which classification is sought Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field Authorship of scholarly articles in the field, in professional or major trade publications or other major media Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases Evidence the alien has performed in a leading or critical role for organizations that have a distinguished reputation Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field Evidence of commercial success in the performing arts (ex. box office receipts or recording or video sales) (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

EB-5 Immigrant Investor Category 10,000 Immigrant Visas per year available (5,000 reserved for Regional Centers) Investment of $1,000,000 (or $500,000 if Targeted Employment Area (TEA) Must be new commercial enterprise, or substantial expansion of existing enterprise Must create 10 jobs within 2 years Green Card is Conditional for 2 years For Regional Center investments, no need to actively manage enterprise or live in proximity to investment location Spouse and children granted green cards By far the best (easiest, fastest) option if you have an extra $500K that you can do without for 5-6 years (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved

Contact Info If you would like more information, or have questions that you didn’t have a chance to ask, please feel free to schedule a free consultation by contacting me at… Law Offices of Mark A. Urbanski, PLLC Washington, DC Office: 1875 I St., NW, Fifth Floor, Washington, D.C Virginia Office: Hedgewood Dr., Ste. 201, Woodbridge, VA Phone: (DC) (VA) Washington, D.C Internet: Important Disclaimer: This presentation and any information provided are solely for educational purposes and should not be construed or relied upon as legal advice nor as creating an attorney-client relationship. (c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved