2. BASIC TERMINOLOGY
NON-IMMIGRANT – temporary purpose
IMMIGRANT – live in the U.S. permanently
NON-IMMIGRANT INTENT – important at border
LAWFUL PERMANENT RESIDENT – GC holder
NON-IMMIGRANT VISA – obtained abroad
ARRIVAL/DEPARTURE CARD I-94 – status
3. Specific issues for startups
Dueto newness of company hard to file/sponsor employees for visas
because the company generally doesn’t have
Quarterly statements
Proven revenue
Track record
Public records
Information on the web
5. F-1: STUDENT VISA
2 ways to work:
1. OPT (Optional Practical Training)
12 months – usually post completion (if used while in school (summers, holidays) time is
deducted.
Must be related to your degree program
No more than 90 days of unemployment
Must report to school where you are working (can be self employed but must be in your field)
Only Extension available: STEM (Science, Technology, Engineering, Math) graduate: 1) just
graduated and 2) have a job in STEM filed and 3) employer is enrolled in E-verify = can extend
for 17 months
Helpful for entrepreneurs with their own business
H-1B cap met for fiscal year
Salary not required, can work for equity
6. F-1 Visa
2. Curriculum Practical Training
-Internship program
-Must be part of the curriculum
-Has to be approved by the school (Form I-20)
-If you work for 1 yr. (365 days) full time you forfeit OPT or 2 years part-time
7. H-1B: SPECIALTY OCCUPATIONS
Most common work authorized non-immigrant visa
Available for workers in specialty occupations
Position Requires a BA or higher in a specific field, or a BA equivalent (i.e. work experience)
The Foreign national has the required BA or work experience in the particular field.
(i.e. software engineer needs a degree in engineering or EE but not English)
Dual intent visa
Initially issued for 3 years; 6 years max. (few exceptions)
Exception is VERY helpful to those nationals of China/India where it can take up to 10yrs.
H-1B employee can port from one employer to another (begin as soon as filed- NOT RECOMMENDED)
Annual cap of 65,000 every fiscal year which begins Oct. 1, but can file in April.
20K additional allocated for US graduates holding MA or higher
8. CAP GAP: Switching from F-1 to H-1B
Due to H-1B annual quota there is usually a limited filing season (usually first
few weeks of April)
Approved H-1B employee can’t begin work until the start of the Fiscal Year,
October 1st.
Generally students are given 12 months of OPT (usually expires in June) –
leaving the foreign national out of status if they don’t return home = GAP
between when status expires and when they can work
Regulations fixed this problem: As long as H-1B is filed before the expiration of
OPT – work authorization and status is extended till the end of the Fiscal year.
9. H-1B Cap Exempt
If you had an H-1B in the past 6 years
Universities
Research organizations
Non-Profit organizations
Affiliated with research organization or university
If you can get a Cap Exempt H-1B, you can get an H-1B with a company that is Cap
subject
Get a job at a university for a few hours a week and then get a job with a private
company (but try to get the private company to also sponsor you for a cap subject
H-1B)
10. H-1B Challenges for startups
Size of company
Funding issues (prevailing wage must be paid)
Manager/executive positions harder to obtain (educational issues/ and need)
Consider: Why would a small company need that? (director of marketing)
Relatively expensive ($325 to file, $500 fraud fee, $750/$1500 ACWIA fee,
$1225 Premium processing) – recommend employer pays all fees
Time Sensitive: Must meet qualifications at time of filing
possible to get letter from university stating all requirements for the degree have
been completed but it can’t be conferred until June.
11. H-1B challenges
Employer Restrictions:
Must pay prevailing wage: can be high (entry level software engineer $75,000)
Try to get a letter from a VC saying they will fund with a letter of intent
May have contracts with clients to prove income
Restrictions of off site placements
Record keeping requirement
No spousal work authorization
Employer-Employee relationship: “control” – is there someone that is controlling the employee’s work?
Try to prove that you don’t own 50% or more of the company
If you own more than 50%: Convey the stock to a friend; or make sure you don’t have more than 50%
of the voting rights; have a separate board of directors that handles the hiring/firing of employees
Have an employment contract (even if owner)
Sign NDA; Covenant not to compete
12. H-1B
Pros:
Can have several H-1B’s at one time
Each employer must apply separately – and must prove all requirements
If you have H-1B and have been counted against an annual cap – not subject to
cap and Company B can sponsor you at anytime
Dual intent- so you can travel and have a green card petition pending
13. CONCERNS FOR STARTUPS
“FRAUD PROFILE” TARGETS SMALL AND NEWLY FORMED COMPANIES
BEFORE FILING HAVE:
A physical office space (a commercial lease is best)
Money to pay salaries
Comply with local ordinance (obtain a business license, taxes)
Website
Payroll records of employees (don’t just give equity)
The Dun & Bradstreet data is used by USCIS to determine the legitimacy of
company
Try to get company on the Dun Bradstreet
14. E-2 TREATY INVESTOR
Nationals of Countries that have a Treaty with the US (no treaty with Russia/China/India)
Substantial Investment: no set amount
If total cost to run your company is under $500,000 a significant investment would be 80-85% of total cost
$ Must come from investor
IP counts (need to get an objective valuation); equipment, property, etc…
Majority of stock must be held by nationals of treaty country (USC and LPR’s don’t count)
Important: VC funding/ co-ownership might reduce your shares below 50%
You can work for a company where nationals of your country have done the investment and
you are a key employee: (Executive/manager/essential employee)
No employment requirement abroad
Spouse can work
15. B-1 VISITOR
Foreign national coming to the U.S. to conduct business activities
Gainful employment NOT permitted
Permissible business activities:
Negotiating contracts, attend meetings, develop business relationships, attend
conferences and seminars
MUST intend to go back to home country
Cannot receive salary from U.S. source
Entrepreneurs can use this to: set up an office in the U.S., meet investors, look for
office space, meet potential customers, open bank accounts, startup
incubator/accelerator programs.
16. TN: CANADIAN/MEXICAN NATIONALS
Professional activities (limited class of occupations)
Less restrictive than H-1B on educational requirements
No prevailing wage issues
Can’t
be self-employed (need a job offer from someone); Can’t be for a
company where you have a substantial ownership interest
Entry for 3 years at a time
17. L-1: MULTINATIONAL TRANSFEREE
Foreign Company abroad
Qualifying relationship with a company in the U.S. (Parent, branch, subsidiary, or
affiliate)
Must have worked abroad for the company for 1 full year (in the past 3 years)
Manager, executive, or specialized skill employee
L-1: 7 years max, L-B: 5 years, New office in U.S.: 1year
Spouse can obtain work authorization
Difficult for startups unless willing to work abroad for a year
18. GREEN CARD OPTIONS
Family petition
Married to USC/USC child – no backlog
USC sibling/ LPR holder – backlog
Political Asylum
Religious Workers
Investors (EB-5): $500,000 or $1 million and 10 U.S. jobs
Employer Sponsor
19. EMPLOYER SPONSORED GREEN CARD
Preference System: limited # per preference and by country
China, India, Mexico, Philippines (serious backlogs)
FYI: can take nationality of your spouse
1st: Extraordinary ability/ outstanding researchers and scientist/ multinational
managers and executives
2nd: Requires an advanced degree (Masters or BA + 5 years experience) AND the
job must require it.
3rd: all other workers (All countries have backlog)
20. VISA BULLETIN: OCTOBER 2012
All
Chargeability CHI NA-
Em ploymen P HI LI P P I NE
Areas Except mainland I NDI A MEX I CO
t- B ased S
Those Listed born
1st C C C C C
2nd 01JAN12 15JUL07 01SEP04 01JAN12 01JAN12
3rd 22OCT06 08FEB06 15OCT02 22OCT06 01AUG06
Other
22OCT06 22JUN03 15OCT02 22OCT06 01AUG06
Workers
4th C C C C C
Certain
Religious U U U U U
Workers
5th Targeted
Employment
Areas/ Regio C C C C C
nal Centers
5th Pilot
Programs U U U U U
21. U.S. EMPLOYER SPONSOR
Phase 1: Labor Certification
PERM
US employer
Full time permanent position
Prevailing wage
Recruited, advertised, and tried to find US worker and couldn’t find one
22. PHASE 2: I-140 Visa Petition
Prove that the company can pay the prevailing wage
Must prove the Alien meets the requirements
23. PHASE 3: I-485 ADJUSTMENT OF STATUS
You have an approved I-140
Visa is available (your turn in line is up): Visa Bulletin
Medical Exam
No Admissibility issues
Need to show you are in legal status
If fallen out of status, must consular process abroad.
24. 4 categories to skip Labor Certification
1. Extraordinary Ability: very top of your field in the world.
Regulations list 10 examples, must meet at least 3
Sustained national/international acclaim
2. Outstanding Researcher:
Need to prove 2 out of 7 criteria
Need to prove you are outstanding (impact in your field)
3. National Interest Waiver: reserved for those doing work in the interest of the US
No employer or labor certification needed
3 criteria
Must be working in an area of substantial intrinsic value to the US
The impact of the work is national in scope as opposed to local in scope
You have already made an impact in your field that is greater than your peers
when they balance the purpose of PERM versus what you bring, do you win?
25. SKIP LABOR CERTIFICATION
4. Multinational Manager or Executive
You worked outside the US for 1 year out of the last 3 years for a company
the foreign company has a qualifying relationship with a Company in US:
Parent-Child: one owns majority of other;
Branch
Affiliate: joint venture, one person owns majority of both
26. EMPLOYER SPONSORED GREEN CARD
Don’thave to be sponsored for the job that you are in – employer can say
they have the intention to put you in the position when you get the green
card. Could be 4-5 years away.
Usea company you don’t work for: You work for Company A; Company B
can sponsor you (maybe you have a good friend) – at the end of the day, if
intention changes, you get green card and they don’t have to hire you.
EmployerMUST pay for the process. It’s expensive! Can’t be reimbursed
under the table. Highly illegal!
27. QUESTIONS?????
MOMAL IQBAL
Miqbal@rroyselaw.com
Office: (415) 421-9700
Direct: (213) 290-4529
www.rroyselaw.com
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Notes de l'éditeur
F1: OPT (OPTIONAL PRACTICAL TRAINING): 12 MONTHS AFTER GRADUATION
Initially issued for 3 years; 6 years max. (except when employer sponsors individual for green card, 1 yr. prior to expiration – can extend until visa becomes available) OR you leave the country for a full year and then apply for an H-1b again – you get 6 years again. (can start filing 6 months before April 1 st - sometimes they run out in one day)
THINK OF WHAT A LARGER COMPANY MIGHT HAVE AND NOT SOMETHING RUNNING OUT OF A HOME OFFICE OR GARAGE.