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Immigration Issues for Startups

The brain drain in Boston is a well known phenomena, and in the never-ending search for talent, it's no wonder why many Boston companies turn abroad to recruit some of the best minds to grow their companies. But even though this solution seems simple, it can open up a whole can of immigration issues that can be a headache for you AND your foreign-born job-seekers.

Arm yourself with the knowledge necessary to recognize and understand these issues, and to best position yourself and your company to avoid immigration problems. Laura will address immigration law essentials most relevant to start-up companies considering the hire of foreign nationals.

What You'll Learn:
Principles of business immigration law
Overview of the most common non-immigrant visas for employees of start-ups (H-1B, TN, O-1, etc.)
Basics of immigrant visas (“green cards”)
Considerations for foreign national founders of U.S. companies

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Immigration Issues for Startups

  1. 1. presents Immigration Issues for Startups LAURA E. SCHNEIDER WilmerHale
  2. 2. Laura E. Schneider Laura E. Schneider is a partner in WilmerHale's Labor and Employment Practice Group, Immigration Group and FinTech Group, joining the firm in 1992. Ms. Schneider’s practice focuses on all aspects of labor and employment law. She counsels clients on employment law compliance issues, personnel policies, employee relations and performance management. Additionally, Ms. Schneider consults on immigration matters in connection with workforce composition and transactions.
  3. 3. Overview of Selected Immigration Issues for Startups Laura E. Schneider, Esq.
  4. 4. Overview Only U.S. citizens and permanent residents (“green card” holders) may work in the U.S. without specific work authorization from the U.S. Citizenship and Immigration Services (USCIS). § No exceptions for contractors, part time employees, casual employment or volunteers § All employers must complete Employment Eligibility Verification forms (“I-9s”) for all employees WilmerHale
  5. 5. Overview § Generally speaking, work authorization (“work visas”) requires employer sponsorship § Some means exist for individuals to obtain work authorization on their own: – Students may obtain a one-year work permit after obtaining a degree (17 month extension for holders of STEM degrees if employer uses E-Verify) – Employment authorization documents (EADs) available to some based on special status (asylum, family relationship to U.S. resident or citizen, other limited programs) WilmerHale
  6. 6. Work Authorization Most often, company must apply for a nonimmigrant work visa for a foreign national candidate and wait for approval before employment starts Regular processing times vary; generally months Premium Processing available (for additional fee) for certain visas – 15 days Employer-specific Immigrant visas (“green cards”) possible § More expensive, and generally lengthy process § Mergers and other corporate reorganizations may impact validity and require further action WilmerHale
  7. 7. Types of Work Visas H-1B SPECIALTY WORKERS § Employer must petition and show that it is sufficiently operational to support H-1B workers (e.g., cash flow, work site, other employees) § Employee must have a U.S. degree in a field related to the job or an equivalent foreign degree (or very substantial documented experience equivalent to education – 3 years' experience for every year of education) WilmerHale
  8. 8. Types of Work Visas H-1B SPECIALTY WORKERS § Requires Labor Condition certification from the U.S. Department of Labor (DOL) as to prevailing wage, working conditions and other requirements prior to filing with USCIS § Employer must pay USCIS filing fees § Special rules for “H-1B dependent” employers who employ large percentage of H-1B holders for their size WilmerHale
  9. 9. Types of Work Visas H-1B SPECIALTY WORKERS § H-1B "portability" permits current H-1B holders to begin work for a new employer after Labor Condition certification and filing of new employer’s petition with USCIS (if petition denied, employee must be terminated) § Worker may remain in U.S. in H-1B status for an aggregate of six years (limited exception for those in “green card” process) § H-1B cap WilmerHale
  10. 10. Types of Work Visas L-1 Status – Intracompany Transferee § Must be qualifying relationship between employer abroad and U.S. employer (e.g., parent/sub, affiliate, joint venture, branch office, etc.) § Employee must have one year of full time employment with foreign entity within three years immediately preceding application § Each day spent in U.S. (e.g., on business travel) deducted from one year of qualifying employment abroad § Generally, initial three year period WilmerHale
  11. 11. Types of Work Visas L-1 A – Executive or Manager § Executive – Directs management of organization (or major component of organization) – Establishes goals and policies of organization – Exercises wide latitude in discretionary decision making § Manager – Manages organization, department or function – Supervises and controls work of other professional/managerial employees, or manages essential function – Authority to hire and fire – Exercises discretion over day-to-day operations WilmerHale
  12. 12. Types of Work Visas L-1 B – Specialized Knowledge § Knowledge of the product, service, research, equipment, techniques, or management of organization that is unique to employer’s business activities § Knowledge cannot be commonly found in U.S. marketplace WilmerHale
  13. 13. Types of Work Visas L-1 Status – New Offices § Sufficient physical premises in U.S. § New U.S. operation, within one year, will support executive or managerial position § Requires documentation of scope of entity, U.S. and foreign organizational structures, financial goals, etc. § Requires documentation of size of U.S. investment and financial ability of foreign entity to commence U.S. business § Limited to initial one year period WilmerHale
  14. 14. Types of Work Visas TN Status § Canadians and Mexicans whose occupations are listed in NAFTA treaty and who possess specified education/ experience § Most useful for computer systems analysts, engineers, scientists, certain management consultants § Canadians may apply at land border or airport § Mexicans must apply directly at U.S. embassy or consulate (following petition approval from USCIS) § Initial admission up to three years (no limit to total time in TN status as long as no intent to establish permanent residence) WilmerHale
  15. 15. Types of Work Visas O-1 -- Extraordinary Ability § Requires advanced degree and significant accomplishment in field of science, art, education, business or athletics -sustained national or international acclaim § Petition must demonstrate extraordinary ability International major prize (e.g., Nobel) OR 3 of following: Lesser prizes/awards Publications about foreign national’s work Authorship of relevant articles Invited to judge work of others or display work at exhibitions Leading/critical role in distinguished organization Evidence of original contributions of major significance Evidence of high salary (commercial success in arts) Other competent evidence (references of other experts) WilmerHale
  16. 16. Types of Work Visas E-1 and E-2 Visas – Treaty Traders/Investors § Treaty of commerce/navigation between U.S. and visa applicant’s home country § Treaty Trader – substantial trade, principally between U.S. and treaty country § Treaty Investor – invests substantial capital in U.S. enterprise which investor develops/directs – Investment must be “at risk” and not “passive” § Holders must act in executive/managerial capacity or have essential skills/qualifications; must have same nationality as treaty country § Admission to U.S. in two year increments WilmerHale
  17. 17. Types of Work Visas E-3 – Australian Nationals § Hybrid between E and H-1B § Australians working in U.S. in specialty occupations § Similar requirements, such as LCA, but no petition with USCIS is required § Admission to U.S. in 2 year increments WilmerHale
  18. 18. Types of Work Visas F Status – Students § Foreign national pursues full-time course of study at approved educational institution § Employment permissible only under limited circumstances – On-campus full-time during vacations/holidays, not more than 20 hours per week during academic year (all work must be approved) – Off-campus pursuant to curricular practical training (same restrictions/approval requirements as on-campus) – Optional practical training Related to student’s major field of study Maximum of 12 months (17-month extension possible for those with STEM degrees if employer is registered with E-Verify) WilmerHale
  19. 19. Types of Work Visas J Status – Exchange Visitors § Students, teachers, professors, research scholars in U.S. approved educational exchange programs § Employment permitted with approval of program sponsor § Authorized professional associations and third-party organizations offer programs § Possible 2 year home residence requirement, depending on foreign national’s skill set and country of origin – Means foreign national must return home following exchange and, generally, may not change visa status or apply for permanent residence until 2 year residence abroad is completed WilmerHale
  20. 20. Types of Work Visas B-1 and B-2 Visas – Business/Pleasure Visitors § B-1 for foreign nationals who do not qualify for visa waiver – Business visitors cannot be employed or paid by U.S. company – Permitted to engage in commercial transactions, negotiate contracts, consult with business associates, participate in litigation, attend conferences/seminars/board meetings, engage in independent research, install/repair equipment purchased outside U.S. (or train U.S. workers to do so), seek investment in U.S. – Same rules for visa waiver (like B-1, but for country where no visa is required to enter U.S.) § B-2 is tourist visa – no labor or study during visit § Up to 6 month admission (possible 6 month extension) WilmerHale
  21. 21. Immigrant Visas -- Permanent Resident § Allows foreign nationals to reside indefinitely in the U.S. § Non-immigrant work visa status is temporary -- Many limited to 5-7 years § Generally, U.S. citizenship can be sought after five years in LPR status § Predominantly family or employment based – Certain individuals can sponsor themselves if their work is in the national interest or they can prove extraordinary ability Not tied to particular employer, but must remain working in their field of endeavor WilmerHale
  22. 22. Immigrant Visas -- Permanent Resident Employer Petitioners § Employer must sponsor through multi-step process generally requiring years to complete – Must obtain certification from DOL to prove lack of U.S. workers qualified for job – Requires engagement in specific recruitment program designed to find qualified U.S. workers § Proof of employer financial status (tax returns, audited financials, etc.) to demonstrate ability to pay § Portability after 180 days § Shorter process (possibly still years) for employer sponsoring employee as outstanding researcher, extraordinary ability/ national interest, or certain multinational executives/managers WilmerHale
  23. 23. Special Considerations for Founders What can I do without a work visa? At what stage is a work visa necessary? Do I need to think about immigration issues when thinking about equity ownership? When can I hire other employees? WilmerHale
  24. 24. Course Title Course Title INSTRUCTOR NAME