Visa and Permanent Residence Options Harvard Business School Visa and Permanent Residence Options for the MBA Graduate Harvard Business School H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP Philadelphia New York 1800 JFK Blvd., 17 th Floor317 Madison Ave., Suite 1518 Philadelphia, PA New York, NY

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 editions 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 ■ Fewer employers willing to sponsor ■ Impact of layoffs ■ TARP restrictions ■ Labor certification applications difficult or impossible ■ H-1B quota ■ Increased opportunities for investors and entrepreneurs

Klasko, Rulon, Stock & Seltzer, LLP General H-1B Issues Employer preconceptions and misconceptions Timing  Premium Processing  Portability Employer requirements

Klasko, Rulon, Stock & Seltzer, LLP H-1B Quota Numbers  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

Klasko, Rulon, Stock & Seltzer, LLP 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

Klasko, Rulon, Stock & Seltzer, LLP H-1Bs for TARP Recipients Attestations by covered employers  No Layoffs of U.S. Workers “Essentially equivalent” jobs 90 days before and after H-1B filing date  Must Recruit for U.S. Workers Internal and external recruitment Must offer job to equally or better qualified U.S. worker

Klasko, Rulon, Stock & Seltzer, LLP Which Employers are Required to Make the Additional Attestations:  Recipients of TARP funds (Note: This website lists recipients of TARP funding, but not recipients of direct Federal Reserve credit, so it is not all-inclusive). It is best to discuss with the prospective employer if they are considered a TARP recipient.  Recipients of FRA Section 13 funds Recipient determination depends upon the type of borrowing arrangement between the entity and the Federal Reserve H-1Bs for TARP Recipients (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP H-1B for TARP Recipients  Term Asset-Backed Securities Loan Facility (TALF) (received discounted government loans)  May be more to come Does Not Apply to Every H-1B  Applies to “new hires” after February 17, 2009  2 year program – till February 16, 2011  Only Relevant to H-1B (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP H-1B for TARP Recipients (cont’d) Hires before February 17, 2009  H-1B extensions not covered  OPT change of status to H-1B not covered Hires after February 17, 2009  New H-1B hires covered  OPT hires changing status to H-1B May not be covered Some employers rescinding offers

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 employee  Company separate entity from owner/employee

Klasko, Rulon, Stock & Seltzer, LLP H-1B Issues for Start-Up Business Company must prove  Financial ability to pay salary  Profits and/or capitalization  Real job to be done by H-1B  Part time or full time  Place 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 Impact of Employer Cutbacks on H-1B Employee Termination or layoff  Impact of severance pay  Impact on OPT Leave of absence Reduction in salary or benefits

Klasko, Rulon, Stock & Seltzer, LLP H-1B Time Limits 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

Klasko, Rulon, Stock & Seltzer, LLP Other Visa Options F-1  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

Klasko, Rulon, Stock & Seltzer, LLP Other Nonimmigrant (Temporary) Options Treaty (E) Visas ■ Must be national of treaty country  ■ 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 years  Each entry limited to two years  Visa and entry can be extended indefinitely  No quota  Spouse can work

Klasko, Rulon, Stock & Seltzer, LLP ■Treaty traders (E-1)  “Substantial” import or export  Majority between U.S. and treaty country  Can 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 or  Manager, supervisor or essential employee (cont’d) Other Nonimmigrant (Temporary) Options Treaty (E) Visas

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 Corporate trainee Training not available overseas Formal training program required Productive employment incidental to training Training will qualify for position abroad Trainee (H-3) Visa

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Family Employment Investment Asylum Lottery

Klasko, Rulon, Stock & Seltzer, LLP Spouse of U.S. citizen  No quota wait  EAD and AP within 3 months All other relationships  Long quota wait  No interim benefits Family

Klasko, Rulon, Stock & Seltzer, LLP Asylum Individualized fear of persecution Race, religion, nationality, political opinion, social group, sexual persuasion

Klasko, Rulon, Stock & Seltzer, LLP Lottery Only specified countries One year window

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Investment(EB-5 ) No quota delay Amount of investment  $1,000,000 or  $500,000 in “targeted employment area”

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Investment (EB-5) Type of investment  Generally cash  “At risk”  Cannot use debt with investment enterprise as collateral (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Investment (EB-5) Type of business  Active business  New business or expansion of existing business  40% increase in net worth or number of employees (cont’d)

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

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status 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 Permanent Resident Status Investment (EB-5) 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 (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Investment (EB-5) Two possibilities  Individual investment  See above  Regional center investment  Approximately 45 USCIS – approved regional centers  Mostly $500,000 investment  Indirect employment creation ok (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Investment (EB-5 )  Some have long, successful history – some do not  Pilot program  Choosing a regional center  Due diligence list at regional-center.php regional-center.php (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Employer-sponsored or self-sponsored Labor certification or extraordinary/national interest/exceptional Multiple petitions

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment Self-Sponsored  Extraordinary ability EB-1 Extensive documentation required Reference letters critical (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment  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 Status Employment Employer-Sponsored  Outstanding 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 Status Employment  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 Status Employment Timing  Electronic filing  Possibility of audit  First of three steps (cont’d)

Klasko, Rulon, Stock & Seltzer, LLP Permanent Resident Status Employment I-140 Petition  1 st step for EB-1 and national interest waiver  2 nd 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 Status Employment 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 Status Employment 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)

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Klasko, Rulon, Stock & Seltzer, LLP For Further Information H. Ronald Klasko, Esq. Klasko, Rulon, Stock & Seltzer, LLP (Philadelphia) (New York)