Immigration issues are front and center for many Silicon Valley entrepreneurs, startups, and professionals from various fields and different sized organizations. Our speaker will address many of the issues confronting foreign-born entrepreneurs and tech professionals in Silicon Valley as well as hiring organizations. The issues covered will include: Entrepreneurial Visa Options: E-2, L-1, H-1B, and O-1 Visas Investor Based Green Card Options: EB-5 Immigrant Visa Employment Based Green Card Options: EB-1 Immigrant Visa ....and more.

1. 125 University Ave, Suite 185
Palo Alto, CA 94301

2. Our Attorneys
Yana Albrecht received her Doctor of Jurisprudence degree from Suffolk University
Law School in Boston, Massachusetts, where she was a member of the Transnational
Law Review. While in law school, Ms. Albrecht specialized in the International and
Immigration Law and continued her International and Comparative Law LLM studies
at McGill University Law School in Montreal, Canada.
After working as an associate and supervising attorney for several medium to large
law firms in Boston and San Francisco, Ms. Albrecht decided to start her own
immigration law practice in the heart of Silicon Valley in Palo Alto, California. Ms.
Albrecht specializes in representing employers and employees in employment based
immigrant and non-immigrant petitions.
Patricia Limaco is an experienced bilingual immigration attorney. Prior to joining
Bay Immigration Law, Ms. Limaco worked with a mid size firm in San Francisco
covering all aspects of immigration law. Patricia received her Bachelor’s Degree
from Amherst College. She received her Juris Doctor Degree from Santa Clara
University School of Law.
During her law school career, Ms. Limaco interned with the Katherine and George
Alexander Community Law Center working closely with community members to
assist in their immigration needs.

3. H-1B Specialty Occupation
• The H-1B visa is designed for an individual that
possesses at minimum a bachelor’s degree or
equivalent (based on work experience) that has
been offered a specialty occupation position by a
US company.
• A specialty occupation is one in which in order to
perform the job duties, an individual must have
highly specialized knowledge of a specific field,
knowledge that can only be obtained through a
bachelor’s degree program or equivalent.

4. H1B CAP LOTTERY
• USCIS has set a cap on the issuance of new H-1Bs.
There are 65,000 new H-1B visas allotted per fiscal year
(an additional 20,000 Masters Cap available for
individuals who completed a Master’s Degree or higher
in the US). These numbers become available for
application on April 1st for an employment start date
of October 1.
• For the current fiscal year, the H1B Cap opened on
April 1st and was exhausted by the end of the first
week. Please make sure to contact us as early as
possible for H-1B cap cases.

5. O-1 Alien of Extraordinary Ability
• Sciences, education, athletics, business, arts, motion pictures and television
(lower standard for arts, motion pictures and television)
• Major award
• Lesser national or international prizes of awards
• Membership in associations requiring outstanding achievements
• Published materials or mainstream media written by others about the
alien
• Participation, individually or on a panel, as the judge of the work of
others
• Original contributions of major significance
• Authorship of books or scholarly articles
• Conference presentations
• Critical role for distinguished organizations or productions/events
• High compensation/salary
• Commercial success

6. L-1 Intracompany Transfer for
Multinational Companies:
• L-1A Multinational Executive/Manager
• L-1B Specialized Knowledge
• One-year employment abroad at parent,
affiliate or subsidiary as an executive, manager
or specialized knowledge individual
• Must be coming to U.S. to fill executive,
managerial or specialized knowledge position

7. L-1 Visa
• L-1A – total of 7 years;
• L-1B – total of 5 years;
• Spouses and children receive L-2 visa
• Spouses may apply for work permit – open
market employment
• Fast-track green card (EB1-3)

8. Blanket L-1Z
– Pre-approved by USCIS – no need to file individual petitions with
USCIS – apply directly at U.S. embassy – issued within days!!
– Requirements for L-1Z:
• Multinational and each qualifying organization:
– Must be engaged in commercial trade or services
– Must have an office in the U.S. that has been doing business
f or at least one year
– Must have three or more domestic and foreign branches,
subsidiaries and affiliates; AND;
» Must have at least ten approved individual L-1 cases
during last 12 months; or
» U.S. subsidiaries or affiliates with combined annual sales
of at least $25 million; or
» A U.S. workforce of at least 1,000 employees

9. E-1/E-2 Treaty Trader and Treaty
Investor Visas
• Must have treaty between U.S. and Treaty
country
• There are treaties with 80 countries – some E-
1 Trade only, most have both.
• At least 50% of company must be owned by
Treaty country national
• Foreign national must have nationality of
Treaty Country to be employee

10. E-1/E-2 Visas
• E-1 Treaty Trader
– 50% trade must be between Treaty Country
and U.S.
• E-2 Investor Visa
– Must make substantial investment
• Can start-up company or buy company as E-1 or E-
2
• E-2 Employee for Multinational Companies
– Must be executive, manager or essential
employee

11. E-1/E-2 Visas
• E-1/E-2 vs. L-1A/L-1B
– No experience with overseas company
required
– Can still apply for fast track green card
• Spouses and children receive E-1/E-2 and can
apply for work permit – open market
employment

12. E-1/E-2 Country List
• Is there a good updated source for finding
countries that have treaties with the United
States, for E-1/E-2 purposes?
- 9 FAM 41.51 Exhibit 1 available online at:
http://www.state.gov/documents/organization/
87221.pdf

13. E-1 Trader Issues:
• What sort of “things” can be traded to satisfy
substantial trade requirement? (9 FAM 41.51
N4.5)
• More than 50% of total trade must be
between the two treaty countries; (9 FAM 41.51
N7).
• Volume vs. Value of trade; (9 FAM 41.51 N6).
• Can a small business ever satisfy substantial
trade requirement?

14. E-1 Trader Issues
• The applicant must be employed in a
supervisory or executive capacity, or possess
highly specialized skills essential to the efficient
operation of the firm. Ordinary skilled or
unskilled workers do not qualify; (9 FAM 41.51
N13).

15. E-2 Investor Issues:
• How can an individual show that the
investment is “at risk?” (9 FAM 41.51 N10.2).
• Can a bank loan qualify as an “at risk”
investment? (9 FAM 41.51 N8.1-2).
• How can an individual show that the
investment capital is “irrevocably committed?”
(9 FAM 41.51 N8.1-3).
• Retained Earnings? (9 FAM 41.51 N8.2-2).

16. E-2 Investor Issues:
What is “Substantial Investment?”
(9 FAM 41.51 N10).
• No specific minimum investment – determined
by the “proportionality” test.
• Magnitude sufficient to ensure applicant’s
financial commitment to its successful operation
(a good business plan = essential).

17. E-2 Investor Issues:
Investment “must not be marginal” – DOS uses
a two-part test: (9 FAM 41.51, N11)
1. Does foreign national’s income from the
investment exceed what is required to
support themselves and their family?
2. What is the capacity of the enterprise to
make a significant economic contribution/
expand U.S. employment?

18. E-2 Investor Issues:
• The applicant must be in a position to "develop
and direct" the enterprise; (9 FAM 41.51 N12).
or
• If the applicant is not the principal investor, he or
she must be employed in a supervisory,
executive, or highly specialized skill capacity.
Ordinary skilled and unskilled workers do not
qualify;
(9 FAM 41.51 N12 & N14).

19. Status vs. Visa
STATUS
• Can apply for two year status with USCIS.
• If applicant wants to travel outside the United States – need
to apply for a visa at a consular post.
VISA
• Issued for up to five years via consular processing at post
(depending on reciprocity schedule )
• On arrival - granted admission for two years, regardless of
length of E visa, by CBP.

20. Intention to Depart:
Does INA 214(b) apply to E-1/E-2 visas?
• Yes - must be intent to depart on termination of status.
But:
• Applicant need not intend to be in the United States for
a specific temporary period and not required to maintain
a foreign residence that does not intend to abandon.
Normally – mere statement of unequivocal intent to leave
following termination of status is sufficient to satisfy
intent to depart requirement; (9 FAM §41.51, Note 15).

21. Other NIV Options
• J-1 Visa
– Intern or Trainee
– Requires foreign degree and/or experience

22. Immigrant Visa (“Green Card”) Options
• Employment Based Immigrant Visas
– EB-1 (First Preference)
• Aliens of Extraordinary Ability (can self-
petition)
• Outstanding Researchers/Professors
• Multinational Executives and Managers
(green card version of L-1A visa)

23. Multinational Executives and Managers
(first preference - green card version of L-1A
visa):
• Employed abroad for one year (in last 3 years)
by “firm or corporation or other legal entity or
an affiliate or subsidiary thereof”
• Seeks to enter the United States to continue in
managerial or executive capacity (no specialized
knowledge)
• No labor certification required (but need job
offer)

24. Employment Based Immigrant Visas
• EB-2 (Second Preference)
– Advanced Degree Holders
• Masters or higher degree or foreign
equivalent
• BA plus five years progressive experience
– Schedule A, Group II Alien of Exceptional Ability in Arts,
Sciences or Performing Arts
– National Interest Waiver (NIW)
• EB-3 (Third Preference)
– Professionals with BA degree or foreign equivalent
– Skilled Workers with 2 years experience
– Other Workers

25. Other Immigrant Visa (“Green Card”)
Options
• EB-4
– Religious Worker visas
• EB-5
– Million Dollar Investor Green Card
– $500,000 in area of high unemployment
• Must create 10 jobs

26. What is the EB-5 program?
Individuals can get a green card if:
1.Invest $500,000 or $1,000,000 (depending on
geographical area);
and
2.Investment creates full-time jobs for 10 U.S.
workers
Green cards conditional for 2 years -
Conditions removed if investment sustained and
jobs created

27. Other Immigrant Visa (“Green Card”)
Options
• Green Card Lottery (www.travel.state.gov)
• Family Based Immigrant Visas
– Immediate Relative: spouse, parent, minor
children of U.S. citizens
• Immediate benefits – work permit and
travel
document within 2-3 months
• 6-8 month processing
• Conditional 2 year green card (marriage
cases)
• Adult child must be 21 years

28. Family Based Immigrant Visas
continued...
• Unmarried Adult Children of U.S. citizens (F1) (6 year
backlog)
• Spouse/Children of Legal Permanent Resident (LPR)
(F2A) (4-5 year backlog)
• Unmarried adult children of LPR (F2B) (9 year backlog)
• Married adult children of U.S. citizens (F3) (9 year
backlog)
• Brothers and sisters of U.S. citizens (F4) (11 year
backlog)

29. Questions and Answers
Bay Immigration Law
Immigration Attorneys
http://bayimmigrationlaw.com/
http://www.facebook.com/BayImmigrationLaw
office@bayimmigrationlaw.com
+1 (415) 317-2879
Palo Alto, CA, USA