1. Klasko, Rulon, Stock & Seltzer, LLP
Visa and Permanent Residence Options
for Business Students
Wednesday, February 20, 2013
William A. Stock, Esq.
Klasko, Rulon, Stock & Seltzer, LLP
Philadelphia New York
1800 John F. Kennedy Blvd., Floor Madison Avenue, Suite 1518
Philadelphia, PA New York, NY

2. William A. Stock, Esq.
Bill Stock is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP and has been providing immigration assistance and solutions to leading universities, research institutions, hospitals, multinational corporations, and individuals for over 18 years.
Bill is featured in Chambers Global, Best Lawyers in America, Pennsylvania Super Lawyers, Who’s Who of Business Lawyers and other guides to prominent attorneys. He is active in the American Immigration Lawyers Association on a national level, currently serving as a national Director on the Association’s Board of Governors and chairing two national committees. He is also active in NAFSA’s Region VIII and as a Regulatory Ombudsman for the region on scholar and faculty issues.
Bill is a graduate of the University of Minnesota Law School and is a frequent author and lecturer on business-related immigration topics and has served as an Adjunct Faculty Member at Villanova University School of Law.

3. 2013 Issues Fewer job offers, but still quota problems
Fewer employers willing to sponsor
Impact of layoffs/unemployed U.S. workers
Mixed bag for investors and entrepreneurs
For more information, visit

4. 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” (
For more information, visit

5. General H-1B Issues Employer preconceptions and misconceptions
Employer requirements
U.S. employer
Pay fees
Post notice
Keep public examination file
For more information, visit

6. H-1B Visas Basic requirements Job Offer Specialty occupation
Part-time or full-time
Specialty occupation
Job requires bachelors or higher degree in specific field
Prevailing wage
Bachelors or higher degree
Determine U.S. equivalence of foreign degree
Combination of education and experience
For more information, visit

7. H-1B Visas Procedure and processing time
(cont’d)
Procedure and processing time
File Labor Condition Application with DOL
File H-1B petition with CIS
Change of status or consular visa issuance
Processing time
3 to 5 months
15 days or less with premium processing
For more information, visit

8. H-1B Visas Length of approval and extensions
(cont’d)
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
For more information, visit

9. H-1B Visas H-1B portability Spouses Travel Present or prior H-1B
(cont’d)
H-1B portability
Present or prior H-1B
Commence employment upon new employer filing petition
Spouses
H-4 cannot work
Travel
Dual intent
For more information, visit

10. H-1B Quota What is it, and what does it mean?
65,000 visas
Separate quota for US-educated advanced degree holders
20,000 visas
Separate options for Canada, Mexico, Australia, Chile and Singapore
TN-1, E-3, H-1B1
Timing
April 1 filing date
October 1 start date
For more information, visit

11. Strategies to Enhance Chances of Getting H-1B
Obtaining masters degree
Filing multiple years
Filing first day
Using previously-obtained degree
Start your own business
Apply as H-1B employee?
For more information, visit

12. H-1B Issues for Start-Up Business
Must establish company with employer tax I.D. number
Can company be owned by H-1B employee?
Must be W-2 employee
Company separate entity from owner/employee
Company right of control over employee
For more information, visit

13. 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
For more information, visit

14. H-1B Issues for Start-Up Business
(cont’d)
Other employees or owners required?
Ability to hire/fire
Independent Board of Directors
Importance of business plan/financial projections
Prevailing Wage
CEO vs. function-descriptive position
For more information, visit

15. 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
For more information, visit

16. Other Nonimmigrant (Temporary) Options Treaty (E) Visas
Must be national of treaty country
Company must be owned at least 50% by treaty country nationals
For more information, visit

17. 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
For more information, visit

18. 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
For more information, visit

19. Other Nonimmigrant (Temporary) Options Treaty (E) Visas
Treaty investors (E-2)
“Substantial” investment
No exact amount (but think about $50K +)
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)
For more information, visit

20. Other Nonimmigrant (Temporary) Options Treaty (E) Visas
(cont’d)
Visa applicant can be
Investor or
Manager, supervisor or essential employee
For more information, visit

21. 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
For more information, visit

22. 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
For more information, visit

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

24. 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
For more information, visit

25. 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
No “stacking” with OPT, but H-3 can be 24 mos.
For more information, visit

26. Permanent Resident Status
Family
Employment
Investment
Asylum
Lottery
For more information, visit

27. 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
For more information, visit

28. Asylum Individualized fear of persecution
Race, religion, nationality, political opinion, social group, sexual persuasion
For more information, visit

29. Lottery Only specified countries One year window www.travel.state.gov
For more information, visit

30. Permanent Resident Status Employment
Employer-sponsored or self-sponsored
Labor certification or extraordinary/national interest/exceptional
Multiple petitions
For more information, visit

31. Permanent Resident Status Employment
(cont’d)
Self-Sponsored
Extraordinary ability
EB-1
Extensive documentation required
Reference letters critical
“One of a few at the top of his peers”
National or international recognition
For more information, visit

32. 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
For more information, visit

33. 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
For more information, visit

34. 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
Interview U.S. worker applicants
Prove unavailability of qualified, interested, and available U.S. worker
Pay prevailing wage
Not available to owner of business
For more information, visit

35. Permanent Resident Status Employment
(cont’d)
Timing
Electronic filing
Possibility of audit
First of three steps
For more information, visit

36. 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
For more information, visit

37. 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)
For more information, visit

38. 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
For more information, visit

39. 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”
For more information, visit

40. Permanent Resident Status Investment (EB-5)
Two possibilities
Individual investment
Requires 10 full time US citizens or permanent resident employees
Regional center investment
Over 200 USCIS - approved regional centers
Mostly $500,000 investment
Indirect employment creation ok
90-95% of all EB-5 applications
(cont’d)
For more information, visit

41. Permanent Resident Status Investment (EB-5)
(cont’d)
Some have long, successful history – some do not
Choosing a regional center
Due diligence list at center.php
Investor can live and work anywhere
For more information, visit

42. 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
For more information, visit

43. 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”
For more information, visit

44. 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
For more information, visit

45. 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
For more information, visit

46. Materials
Please visit to download this PowerPoint presentation and relevant articles.
For more information, visit

47. For more information, visit www.klaskolaw.com

48. For Further Information
William A. Stock, Esq.
Klasko, Rulon, Stock & Seltzer, LLP
Telephone: (Philadelphia)
(New York)
Offices:
Philadelphia New York
1800 John F. Kennedy Boulevard 317 Madison Avenue
Floor Suite 1518
Philadelphia, PA New York, NY 10017

49. online www.klaskolaw.com www.eb1immigration.com

50. DISCLAIMER / COPYRIGHT NOTICE
The materials contained in this PowerPoint does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
Copyright © 2013 Klasko, Rulon, Stock & Seltzer, LLP. All rights reserved.
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