1.
presents
Immigration
Issues for Startups
LAURA E. SCHNEIDER
WilmerHale

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.
Overview of Selected Immigration
Issues for Startups
Laura E. Schneider, Esq.

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Course Title
Course Title
INSTRUCTOR NAME