OVERVIEW OF MOST COMMON WORK VISAS AND EMPLOYMENT-BASED IMMIGRATION MARCH 24, 2014 INNOVATION NORWAY WORKSHOP LAW OFFICES OF FARIBA FAIZ 1 SANSOME STREET, SUITE 3500, SAN FRANCISC0, CA94104

Visa Waiver Program (ESTA): Allows entry into the U.S. for up to 90 days. Purpose for visit may be business or pleasure. Extension or change of status not allowed. B-1/B-2 visa: Allows entry for up to six months. Purpose of visit may be business or pleasure. Extension or change of status permissible. VISA WAIVER PROGRAM VS. B-1/B-2 VISA Copyright © 2013 by Law Offices of Fariba Faiz

BUSINESS VISITOR VS. WORKER Business visitors may enter the U.S. to conduct business activities. Business visitors may not engage in employment. The distinction between these categories may become blurry at times and may lead to an inadvertent violation of U.S. immigration laws. A business visitor is a foreign national who: Has entered the U.S. to engage in business activities but is not directly entering the U.S. labor market; Resides outside the U.S.; Has no intention of abandoning foreign residence; and Is employed abroad and receives a salary from abroad. Copyright © 2013 by Law Offices of Fariba Faiz

TYPES PERMISSIBLE BUSINESS ACTIVITIES UNDER THE VISA WAIVER PROGRAM AND B-1/B-2 VISAS Conduct contract negotiations. Conduct recruitment and hire personnel. Attend and participate in educational or professional conferences and seminars. Conduct independent research activities. Participate as a witness in a trial. Copyright © 2013 by Law Offices of Fariba Faiz

COMMON US TEMPORARY EMPLOYMENT VISAS Temporary Work Visas: A Temporary Worker visa is a nonimmigrant visa for individuals who wish to work temporarily in the United States. There are several categories ("classifications") of Temporary Worker visas. Some of these classifications have annual limits. The worker’s qualifications, type of work to be performed and other factors determine the type of visa that required under U.S. immigration law. Common temporary work visas include the TN, H-1, L-1, E, O-1, visa types. Each visa is briefly described in the next slides. Copyright © 2013 by Law Offices of Fariba Faiz

TN (NAFTA) VISA NAFTA stands for North American Free Trade Agreement. It is a special trade agreement between Canada, United States and Mexico. The NAFTA Professional (also known as the TN Visa, TN1 Visa, TN Status) allows Canadian and Mexican citizens to work in the United States. They must be working in jobs classified as professional or as a “NAFTA Professional”. To qualify for a TN: Must be a citizen of Canada or Mexico; The U.S. job requires a NAFTA Professional; Job must be listed on NAFTA professions list; The Mexican or Canadian applicant will work for a U.S. employer (self-employment is not allowed with exception of management consultants) ; and The Mexican or Canadian applicant is qualified for the NAFTA profession. Copyright © 2013 by Law Offices of Fariba Faiz

H-1B PROFESSIONAL WORKER VISA: For individuals having the equivalent of a US bachelor degree (Foreign degrees and/or work experience may be found to be equivalent to a US bachelor degree). Need an employer to sponsor the visa (self-employment is not allowed); Country of nationality is not relevant; Job must require a minimum a bachelors degree in specific field; Must have a minimum bachelors degree or equivalent in specific field, and Limited to six years at a time. *This visa is often used by E or L visa holders to bring in workers from their home country which may not otherwise qualify for L or E visas. Copyright © 2013 by Law Offices of Fariba Faiz

L-1 INTRACOMPANY TRANSFEREE VISA: The L-1 visa allows for foreign executives and managers to relocate to the corporation's U.S. office after having worked abroad for the company for at least one year within the three year period preceding the filing of the L-1 application. Must be an executive or manager; Must have worked for at least one year in the past three for a foreign parent, subsidiary, affiliate, or branch office of the U.S. company that will employ them; and There must be some type of qualifying relationship/nexus between the U.S. office and foreign company, i.e. the foreign company must be a parent, subsidiary, branch, joint-venture or affiliate of the U.S. entity. Copyright © 2013 by Law Offices of Fariba Faiz

E VISA CATEGORY The Treaty Trader (E-1) or Treaty Investor (E-2) visa is designed for a national of a country with which the United States has established and maintains a treaty of commerce and navigation who is coming to the U.S. to carry on substantial trade. Trade can include services or technology, principally between the U.S. and the treaty country, or to develop and direct the operations of an enterprise in which the national has invested, or is in the process of investing a substantial amount of capital. Norway currently has a treaty of commerce and navigation with the United States which was entered in January 18, Copyright © 2013 by Law Offices of Fariba Faiz

E-1 TREATY TRADER VISA The applicant must be a national of a treaty country. The trading firm for which the applicant is coming to the U. S. must have the nationality of the treaty country. The international trade must be "substantial" in the sense that there is a sizable and continuing volume of trade. The trade must be principally between the U.S. and the treaty country, which is defined to mean that more than 50 percent of the international trade involved must be between the U.S. and the country of the applicant's nationality. Trade means the international exchange of goods, services, and technology. Title of the trade items must pass from one party to the other. The applicant must be employed in a supervisory or executive capacity, or possess highly specialized skills essential to the efficient operation of the firm. Ordinary skilled or unskilled workers do not qualify. Copyright © 2013 by Law Offices of Fariba Faiz

E-2 TREATY INVESTOR VISA The investor, either a real or corporate person, must be a national of a treaty country. The investment must be “substantial” meaning it must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise. The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment. The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S. The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed. The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify. Copyright © 2013 by Law Offices of Fariba Faiz

L-1 VISA VS. E VISA L-1 VISA Substantial US investment or trade is not required. It can be used for any venture by international companies to set-up a branch, subsidiary or affiliate company in the U.S. A treaty of commerce and navigation need not be in place. Nationality of the transferred executive or manager or company is not relevant. Has a six-year limit. Copyright © 2013 by Law Offices of Fariba Faiz E VISA E-1 or E-2 visas can be used only if a treaty of commerce and navigation or a bilateral investment treaty exists between the U.S. and the country of nationality of the foreign company or investor. No need to for a qualifying relationship with a foreign subsidiary, branch, joint venture, parent or affiliate. Prior employment with qualifying entity is not required. No limitation on visa extension. Can be extended indefinitely.

O-1 EXTRAORDINARY ABILITY ALIEN VISA Must have extraordinary ability in the sciences, education, business, or arts and must demonstrate sustained national or international acclaim and recognition for achievements in the field of expertise by providing evidence of: A.Receipt of a major, internationally recognized award, such as the Nobel Prize; or B.At least three of the following forms of documentation: 1. Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; 2. Membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields; 3. Published material in professional or major trade publications or major media about the alien, relating to the alien's work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation; Copyright © 2013 by Law Offices of Fariba Faiz

4. Participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought; 5. Original scientific, scholarly, or business-related contributions of major significance in the field; 6. Authorship of scholarly articles in the field, in professional journals, or other major media; 7. Employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation; 8. Commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence. Copyright © 2013 by Law Offices of Fariba Faiz

EMPLOYMENT- BASED LEGAL RESIDENCE: There are two main ways to obtain a so-called US Green Card (permanent residence). One way is through a family member. The other way is to obtain an employment-based Green Card. This section discusses four relevant types of Employment-based Green Cards. With the exception of the first and fifth employment preference categories, most employment-based green cards require an approved labor certification. The more commonly used categories are discussed next: Copyright © 2013 by Law Offices of Fariba Faiz

EB-1 PRIORITY WORKERS: Labor Certification and job offer from an employer are not required. The category includes: A.Multinational executives and managers; B.Outstanding professors and researchers; C.Extraordinary ability aliens in the sciences, arts, education, business or athletics. Copyright © 2013 by Law Offices of Fariba Faiz

EB-2 MEMBERS OF PROFESSIONS HOLDING ADVANCED DEGREES Category refers to three types of professionals: A. Foreign nationals with a masters degree or higher with a job offer from a U.S. company. Labor Certification is required. B. Foreign nationals with 'exceptional ability' in the sciences, business or arts and with a job offer from a U.S. company. Labor Certification is required; and C.Foreign nationals with exceptional ability, or an advanced degree, who can show that their activities will substantially benefit the U.S. national interest. Labor Certification and job offer are not required. Copyright © 2013 by Law Offices of Fariba Faiz

EB-3 SKILLED, PROFESSIONALS OR OTHER WORKERS: Labor certification is required. Category applies to three types of workers: A.Skilled workers: minimum two years of training or experience and a job offer from a U.S. company; B.Professionals: A U.S. bachelor's or foreign equivalent degree and a job offer from a U.S. company; C.Unskilled workers: less than two years training or experience and a job offer from a U.S. company. Copyright © 2013 by Law Offices of Fariba Faiz

LABOR CERTIFICATION: Application filed by a US employer on behalf of prospective foreign employee with the US Department of Labor. An approved labor certificate application is required before the employer can sponsor the foreign worker for immigration. Prior to filing the labor certification application the employer must:  Test the labor market by conducting a recruitment for the position and show that employees are unavailable, unqualified or unwilling to fill the position;  Job duties advertised must not be unduly restrictive; and  Offer to pay the prevailing wage rate as determined by the U.S. Department of Labor. Copyright © 2013 by Law Offices of Fariba Faiz

EB-5 ENTREPRENEUR “GREEN CARD” The EB-5 Immigrant Visa provides the most flexible path to a U.S. residency through a US investment. The EB-5 visa does not require the applicant to manage the day-to-day affairs of a business. One may invest in an existing business, or a new business. More than one person may invest in the same business. The EB-5 investor may be a minority owner of the business. One can qualify for an EB-5 as follows: Invest $1 million and hire ten employees anywhere in the U.S.; or Invest $500,000 and hire ten employees in an area where the unemployment rate exceeds the national average unemployment rate by 150% Invest in a regional center. The USCIS has designated specific areas, called Regional Centers, as eligible to receive immigrant investor capital. USCIS approved over 200 Regional Centers. Regional Center investors may rely on indirect job creation rather than directly hiring ten employees. A competent professional, such as an economist, must quantify the indirect employment. If the regional center is in a high unemployment area the required capital is reduced to $500,000. Copyright © 2013 by Law Offices of Fariba Faiz

QUESTIONS? Contact : Fariba Faiz Law Offices of Fariba Faiz Citygroup Building One Sansome Street, Suite 3500 San Francisco, CA Tel: Fax: wwww.faizlaw.com