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Immigration primer for international students and entrepreneurs (m0706624)
1. Immigration Primer for International
Students and Entrepreneurs
LA Tech.
May 14, 2014
Laurie Chess
Mary Ellen Jordan
2. Neither this presentation nor these materials
should be construed as legal advice, and we
cannot render legal advice in the absence of
an attorney-client relationship. No such
relationship exists at this time and should not
be implied by virtue of this presentation. You
should contact an immigration and/or
business attorney to discuss your particular
circumstances.
3. F1 Student Visa
• Generally, may not work off-campus during the first
academic year.
• On-campus employment handled by DSO.
• Curricular Practical Training (CPT) is work related to field
of study while in school and part of program of study.
– Can be full- or part-time. Full-time CPT will effect
your ability to work in F1 status after graduation.
– This too is handled by DSO.
• For those considering entrepreneurial ventures or self-
employment, planning will need to begin prior to earning
the degree.
4. F1- Post Graduate Work
• Optional Practical Training (OPT) relates to
major course of study and can be done
while in school or after graduation.
• Handled by DSO but requires you to file for
an Employment Authorization Document
(filed on Form I-765).
• Not employer specific.
• Can work for multiple employers, contract
work, or even be self employed.
5. OPT
• Up to 12 months for each educational level.
• May apply up to 90 days before the program
end date and up to 60 days after the program
end date. Applications must be received by
USCIS within 30 days of the date the DSO’s OPT
recommendation in SEVIS.
• Student must complete OPT within 14 months
of graduation (2 exceptions).
– STEM extension
– H1B cap gap
6. STEM Extension
• An additional 17-month extension of post
completion OPT status, for a total of 29
months, is available.
• Degree and position must be in STEM.
• The employer must be enrolled in E-Verify.
• The student must apply on time (before the
current post-completion OPT expires).
7. H1B Visa
• Classification for professional workers in a
specialty occupation.
• Position requires the attainment of a
bachelor’s degree as a minimum requirement
to perform the job duties.
• Employer specific.
• Annual cap
– 65,000 for bachelors degree
– 20,000 for advanced degrees
8. H1B Visa cont’d
• Requires employer to pay the higher of the
prevailing wage or the amount paid to similarly
situated US workers.
• Application is a two step process with DOL and
USCIS.
• Filed with USCIS on Form I-129.
• Filing fees run around $1,600-$2,300 plus
attorney’s fees.
• Processing time is 4-6 months. Premium
processing (a response in 15 days) is available
for additional $1,225.
9. H1B Visa cont’d
• This H1B is valid for an initial period of 3 years.
A three year extension can generally be
granted for a maximum period of 6 years.
• Additional extensions can be granted if green
card process (filing with DOL and/or USCIS)
was started and has been pending for over one
year.
• In order to change employers, a new H1B
application must be filed.
11. Is the H1B right for you?
• You must think long term. Is your goal to become a LPR?
• When applying for LPR, most H1B workers will fall into
the EB2 or EB3 Visa Preferences, which require the filing
of a PERM application with DOL.
• Self-employment, entrepreneur, significant
ownership, family relationship with shareholders
, officers, or partners can result in denial of labor
certification.
• If any of these factors apply, your employer must be able
to demonstrate that a bona fide job opportunity exists
such that the position is open and available to U.S.
workers.
12. National Interest Waiver (NIW)
• Exception to the job offer requirement
and, therefore, the labor certification.
• Requires:
– you plan on working in the US in an area of
substantial intrinsic merit;
– the proposed impact of your work is national
in scope; AND,
– waiving the labor certification requirement
would benefit the national interests of the US
13. TN
• Available only for Canadian and Mexican
citizens.
• For specified list of professionals under
NAFTA. https://www.nafta-sec-
alena.org/Default.aspx?tabid=97&ctl=Sectio
nView&mid=1588&sid=8fd98e3e-4495-
43a8-ba47-4a6955d6b5db&language=en-
US#Ap1603.D.1
14. TN cont’d
• Employer specific but can work for employer
as contract employee.
• Canadians can apply at border or with USCIS.
Mexican nationals must apply at a U.S.
embassy or consulate in Mexico.
• Initial period of 3 years. No limit on
extensions.
15. L1 Intra-Company Transferee
• International companies needing to bring foreign
employees to the US.
• If a company is incorporated, the corporation may
petition for one of its owners to receive a L-1.
• The US company can be either a parent or a subsidiary
of the foreign company, a branch office, an affiliate to a
foreign company, both of which are owned by a third
parent company.
• During the duration of the L-1 visa, the petitioning
company must continue to do business in the US and in
a country abroad
16. L1 Intra-Company Transferee cont’d
• The employee must have completed 1
continuous year of employment outside of the
US with the overseas company within the
preceding 3 years, before he or she can be
transferred to the related US company.
• Initial period of stay – 3 years
• Employer specific
• Filing fee Form I-129 $325
• Spouse of L1 visa holder can work
• Special rules apply to new office situations.
17. L-1A
• Managers or executives
• Position overseas must have been as
manager, executive, or specialized
knowledge. Need not be the same as
position classification in US.
• L-1A visa holders do not have to go through
the DOL’s PERM process (advertising and
recruiting) should the beneficiary pursue
permanent residence.
18. L-1A Manager
• Manages the organization, or a
department, subdivision, function or component of the
organization
• Supervises or controls the work of other
supervisory, professional or managerial employees, or
managing an essential function within the company or a
department or subdivision of the organization
• Has the authority to hire and fire or has the
responsibility of personnel actions (such as promotion
and leave authorization).
• Exercises discretion over the day-to-day operations of
the activity or function for which the employee has
authority.
19. L-1A Executives
• Directs the management of the organization or
a major component or function of the
organization
• Establishes the goals and policies of the
organization, component or function
• Exercises wide latitude in discretionary
decision-making
• Receives only general supervision or direction
from higher-level executives, the board of
directors or stockholders of the organization
20. L1B
• Specialized or an advanced level knowledge
– Your job knowledge includes specialized
knowledge about a company's
product, service, research, equipment, techniq
ues, management or other interests and its
application in international markets, or
– You have an advanced level of knowledge or
expertise in the company's processes and
procedures.
21. E Treaty Countries
• Check to see if your home country has entered into a
treaty with the US.
• http://travel.state.gov/content/visas/english/fees/treaty
.html
• Four groups of applicants from these countries can seek
to enter the US in E status:
– Foreign nationals seeking classification as traders or
investors;
– Corporations or other business entities controlled by foreign
nationals who seek treaty trader or treaty investor status;
– Management or supervisory employees of a treaty
enterprise; and,
– Other employees with special skills who are essential to the
treaty enterprise.
23. E2 Treaty Investor
Persons coming to develop and direct
enterprises in the US in which they are
investing substantial amounts of capital
24. E Investment Requirements
• Investment means placing capital, including funds
and other assets, at risk in a commercial sense with
the objective of generating a profit
• Amount must be substantial and be able to
document source of funds
• The enterprise must be a "real, active and operating
commercial or entrepreneurial undertaking which
produces services or goods for profit”
• Cannot be marginal -- an enterprise is marginal if it
generates a living solely for the treaty investor and
the investor's family members
25. E Visas cont’d
• Streamlined application process – at
Consulate or Embassy or change of status
by filing Form I-129
• The initial period of stay is 2 years with
extension of stay for up to 2 years per
extension and no maximum number of
extensions, with some exceptions
• Spouses can apply for work authorization
(EAD)
26. Extraordinary Ability or Achievement
• For individuals who possesses extraordinary
ability in the
sciences, arts, education, business, or
athletics, or who has a demonstrated record of
extraordinary achievement in the motion
picture or television industry and has been
recognized nationally or internationally for
those achievements
• Initial period of 3 years with 1 year extensions
• May qualify for EB1 preference for LPR
27. O-1A Extraordinary Ability
• A written advisory opinion from a
peer group with expertise in the
beneficiary’s area of ability.
• Evidence that the beneficiary has
received a major, internationally-
recognized award, such as a Nobel
Prize, or ..
28. O-1A cont’d
…evidence of at least (3) three of the following:
– Receipt of nationally or internationally recognized prizes or awards for excellence
in the field of endeavor
– Membership in associations in the field for which classification is sought which
require outstanding achievements, as judged by recognized national or
international experts in the field
– Published material in professional or major trade publications, newspapers or
other major media about the beneficiary and the beneficiary’s work in the field
for which classification is sought
– Original scientific, scholarly, or business-related contributions of major
significance in the field
– Authorship of scholarly articles in professional journals or other major media in
the field for which classification is sought
– A high salary or other remuneration for services as evidenced by contracts or
other reliable evidence
– Participation on a panel, or individually, as a judge of the work of others in the
same or in a field of specialization allied to that field for which classification is
sought
– Employment in a critical or essential capacity for organizations and
establishments that have a distinguished reputation
30. EB5 Immigrant Investor
• Green card through investment in a new
commercial enterprise
• Investment capital cannot be borrowed
• Required minimum investments are:
– General: The minimum qualifying investment in the
US is $1 million.
– Targeted Employment Area (High Unemployment
or Rural Area): The minimum qualifying investment
either within a high-unemployment area or rural
area in the United States is $500,000.
31. EB5 cont’d
• Must create or preserve at least 10 full-time
jobs for US workers within two years
• Conditional Permanent Resident Status is
granted. Must show job creation in order
for condition to be removed.
