Immigration Law Seminar

Transcription

1 Immigration Law Seminar NONIMMIGRANT WORK VISAS H1-B, L-1, and E-2 IMMIGRANT VISAS EB-1 to EB-5 Speaker: Organizers: SHAHIN MOTALLEBI, ESQ. LAW OFFICES OF SHAHIN MOTALLEBI

2 A R E A S O F P R A C T I C E Immigration Estate Planning Probate Family Law Corporate Law Business Bankruptcy Criminal Litigation Head Office in the USA 1575 Westwood Blvd., Suite 201 Los Angeles, California (310) Fax: (310) [email protected]

3 Nonimmigrant Visas Part I: TEMPORARY WORK VISAS

4 Nonimmigrant Work Visas Ways to hire foreign employees in the U.S.: H-1B Specialty Occupation Worker L-1 Intra-company Transferee E-2 Treaty Investor

5 H-1B Specialty Occupations Must Perform Services in a Specialty Occupation Key Issues: Is the Position a Specialty occupation? Does the Employee Meet the Qualifications for that Specialty Occupation?

6 Specialty Occupation Definition of Specialty Occupation: An occupation that requires theoretical and practical application of a body of highly specialized knowledge and a bachelor s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the U.S. Definition of Profession: Includes but not limited to architects, engineers, lawyers, physicians, surgeons, and teachers (all levels)

7 Specialty Occupation Problem Areas: Occupation that requires general college degree, i.e. liberal arts majors of all kinds qualify so no focused curriculum that serves as job preparation, e.g. Sales/Marketing Manager. Occupation that does not require a college degree, e.g. various trades. Duties must be complex such that knowledge to perform would normally be associated with at least a bachelor s degree.

8 Qualifications of the Employee License, if required for that occupation Appropriate U.S. Degree (or Foreign Equivalent with Credential Evaluation) Equivalent Experience and Recognition of Expertise (progressively responsible positions in the specialty)

9 Qualifications of the Employee Problem Areas: Foreign Degrees: Suspect Credential Evaluation Occupation requires advanced degree, e.g. research scientist, market research analyst Proving degree equivalence: recognition of expertise

10 H-1B Petition Procedure Prevailing Wage Determination Labor Condition Application I-129 Petition Sent to the INS Service Center for the State or Region of the Employment Premium Processing: 15 days response

11 Prevailing Wage Determination Done for the Region Where Employed Job Description: Specialty Occupation! Experience and Education Requirements Salary: Level I Level II

12 Labor Condition Application Employer Must Comply with Conditions Department of Labor Approval Needed New DOL Website Approval Must Be Submitted to the INS

13 L-1 Category INTRA-COMPANY TRANSFEREE VISA

14 L-1 Intra-company Transferee Definition: An alien who, within three years preceding the time of his application for admission into the United States, has been employed continuously for one year by a firm or corporation or other legal entity or an affiliate or subsidiary thereof and who seeks to enter the United States temporarily in order to continue to render his services to the same employer or a subsidiary or affiliate thereof in a capacity that is managerial, executive, or involves specialized knowledge.

15 One Year Employment Within the previous three years Continuously for at least one year Employer Must Be Qualifying Organization Additional Requirements: Full Time position Employed Abroad (outside United States)

16 Qualifying Organization Affiliate: Common Ownership Branch: Same Legal Entity Parent: 50% or More; Controls Subsidiary: 50% or More; Controlled

17 Executive Capacity 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; and Receives only general supervision or direction from higher level executives, the board of directors, or stockholders of the organization

18 Managerial Capacity Manages the organization, or a department, subdivision, function, or component of the organization; Supervises and controls the work of other supervisory, professional, or managerial employees, or manages an essential function within the organization, or a department or subdivision of the organization;

19 Managerial Capacity (Cont.) Has the authority to hire and fire or recommend those as well as other personnel actions (such as promotion and leave authorization) if another employee or other employees are directly supervised; if no other employee is directly supervised, functions at a senior level within the organizational hierarchy or with respect to the function managed; and Exercises discretion over the day-to-day operations of the activity or function for which the employee has authority. A first-line supervisor is not considered to be acting in a managerial capacity merely by virtue of the supervisor's supervisory duties unless the employees supervised are professional.

20 Specialized Knowledge Special knowledge possessed by an individual of the petitioning organization's product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization's processes and procedures "Specialized knowledge professional" means an individual who has specialized knowledge and is a member of the professions

21 L-1 New Office New office: doing business less than one year Sufficient physical premises One year employment abroad still required Will support an executive or managerial position within one year

22 L-1 New Office INITIAL EVIDENCE: Business Plan and Proposed Organizational Chart Financial ability of the foreign entity and size of investment to cover startup costs, including salaries Organizational Chart of the foreign entity

23 Problem Areas of L-1 Each Requirement Potential Problem Rigid Application of Executive and Managerial Capacity Definitions Extensions Difficult for Small Businesses

24 L-1 Petition Procedure I-129 Petition to INS Service Center Visa Application Premium Processing Available

25 NOTE: EB-1 Immigrant Visa for Multinational Executive/Manager Immigrant Petition Analogous to L-1 One Year Employment Also Required Executive or Managerial Capacity New Development: I-140 and I-485 Can Now Be Concurrently Filed (When Visa Immediately Available)

26 E-2 Category TREATY INVESTOR VISA

27 E-2 Treaty Investor Definition: An alien entitled to enter the United States under and in pursuance of the provisions of a treaty of commerce and navigation between the United States and the foreign state of which he is a national, solely to develop and direct the operations of an enterprise in which he has invested, or of an enterprise in which he is actively in the process of investing, a substantial amount of capital.

28 E-2 Treaty Investor Is There a Treaty? Treaty National: Employee from a Different Country Develop and Direct Investment Substantial Investment Not a Marginal Enterprise Develop and Direct

29 Types of Investment Individual Investor Employee on Behalf of Employer Active Business Operations, Not Passive Investment

30 Substantial Investment Must Have Ownership Control of E-2 Enterprise (at least 50%) No Minimum Amount Varies With the Type of Business Retail: May Require Higher Investment Services: May Require Lower Investment

31 Marginal Enterprise Not Just For the Visa Applicant to Make a Living, e.g. mom and pop store Economic Contribution to the Community: i.e. Must Hire Employees

32 E-2 Employees Executive or Supervisory: Similar Requirements as L-1 (Can Convert to Multinational Exec/Mgr Immigrant Petition) Special Qualifications or Skills Essential to the Operations of the E-2 Enterprise (BUT Temporary in Nature, i.e. Train Local Employees (Lang./Culture Not Enough) Employees Must Have Sufficient Experience to Qualify as Either Type of E-2 Employee

33 E-2 Treaty Investor No INS Petition Required if Outside the U.S.; Visa Application to Consular Posts Most Nationalities Admitted for 2 Years Upon Any Entry Before Visa Expiration; Visa no longer renewable in the U.S. Change of Status Petition to INS Possible, But Requires Visa Application After Any Departure From the U.S., Which Is Also True for H-1B and L-1 Change of Status Beneficiaries

34 Conclusion H-1B: Need Qualified Employee for Qualifying Position L-1: Need Qualifying Organization Relationship and Qualified Employee E-2: Need Treaty, Substantial Investment, and Qualified Employee

35 Immigration to the U.S. Part II: PERMANENT RESIDENCE Green Card

36 Immigrant Visa Categories Employment-based permanent residency Family-based permanent residency FP-1 Unmarried children of U.S. citizens. FP-2A Spouses and children of permanent residents. FP-2B Unmarried adult children of permanent residents. FP-3 Married children of U.S. citizens. FP-4 Siblings of U.S. citizens. Asylum-based permanent residency Refugees who can demonstrate a well-founded fear of persecution based on their race, religion, nationality, membership in a social group, or political opinion.

37 Employment-based Visas EB-1 Extraordinary aliens artists, entertainers, athletes, professionals, entrepreneurs, scientists, professors, researchers, managers and executives EB-2 Workers with exceptional ability or an advanced degree EB-3 Skilled workers EB-4 Ordained ministers of religion EB-5 Entrepreneur investors

38 EB-1 Category Extraordinary aliens: Artists Entertainers Athletes Professionals Entrepreneurs Scientists, professors, researchers Managers and executives

39 EB-1 Priority Workers Foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics Foreign national that are outstanding professors or researchers Foreign nationals that are managers and executives subject to international transfer to the United States

40 EB-1 Eligibility Aliens with extraordinary ability are those with "extraordinary ability in the sciences, arts, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation." You must be one of "that small percentage who have risen to the very top of the field of endeavor," to be granted this classification.

41 EB-1 Qualifications Recipients of major internationally recognized award, such as the Nobel Prize, qualify for an EB-1 classification. Other awards may also qualify if petitioner can document that the award is in the same class as a Nobel Prize. Since few workers receive this type of award, alternative evidence of EB-1 classification based on at least three of the following types of evidence is permitted:

42 EB-1 Qualification 1. Receipt of lesser nationally or internationally recognized prizes or awards for excellence; 2. Membership in associations in the field which demand outstanding achievement of their members; 3. Published material about the alien in professional or major trade publications or other major media; 4. Evidence that the alien has judged the work of others, either individually or on a panel;

43 EB-1 Qualification 5. Evidence of the alien's original scientific, scholarly, artistic, athletic, or businessrelated contributions of major significance to the field; 6. Evidence of the alien's authorship of scholarly articles in professional or major trade publications or other major media; 7. Evidence that the alien's work has been displayed at artistic exhibitions or showcases;

44 EB-1 Qualification 8. Performance of a leading or critical role in distinguished organizations; 9. Evidence that the alien commands a high salary or other significantly high remuneration in relation to others in the field; 10. Evidence of commercial successes in the performing arts.

45 EB-2 Category Professionals with advanced degrees or persons with exceptional ability Foreign nationals of exceptional ability in the sciences, arts or business Foreign nationals that are advanced degree professionals Qualified alien physicians who will practice medicine in an area of the U.S. which is underserved, under National Interest Waiver.

46 EB-2 Qualification In order to be classified as having exceptional ability in the sciences, arts, or business, the individual must provide documentation of three (3) of the following: 1. An official academic record showing the alien has a degree, diploma, certificate or similar award from a college, university, school or other institution of learning relating to the area of exceptional ability;

47 EB-2 Qualification (Cont.) 2. Letters documenting at least ten years of fulltime experience in the occupation being sought; 3. A license to practice the profession or certification for a particular profession or occupation; 4. Evidence that the alien has commanded a salary or other remuneration for services which demonstrates exceptional ability; 5. Membership in professional associations; 6. Recognition for achievements and significant contributions to the industry or field by peers, government entities, professional or business organizations.

48 EB-3 Category Foreign national professionals with bachelor's degrees (not qualifying for a higher preference category) Foreign national skilled workers (minimum two years training and experience) Foreign national unskilled worker who cam perform labor for which qualified workers are not available in the United States.

49 EB-3 Qualification Professionals must hold a U.S. baccalaureate degree or foreign equivalent degree that is normally required for the profession. Education and experience may not be substituted for the degree. Skilled worker positions are not seasonal or temporary and require at least two years of experience or training. The training requirement may be met through relevant post-secondary education.

50 EB-4 Category EB-4 Special Immigrants include: Foreign national religious workers Employees and former employees of the U.S. Government abroad

51 EB-4 Qualification (Cont.) To qualify as an EB-4 special immigrant religious worker, you must be a member of a religious denomination that has a nonprofit religious organization in the United States. You must have been a member of this religious denomination for at least two years before applying for admission to the United States.

52 EB-4 Qualification (Cont.) You must be entering the United States to work: As a minister or priest of the religious denomination; In a professional capacity in a religious vocation or occupation for the religious organization (a professional capacity means that a U.S. baccalaureate degree or foreign equivalent is required to do this job); or

53 EB-4 Qualification (Cont.) In a religious vocation or occupation for the religious organization or its nonprofit affiliate. (A religious vocation means a calling or devotion to religious life. Taking vows can prove that you have a calling to religious life. A religious occupation is an activity devoted to traditional religious functions. Examples of religious occupations include (but are not limited to) cantors, missionaries, and religious instructors).

54 EB-5 Category 10,000 immigrant visas per year are available to qualified individuals seeking permanent resident status on the basis of their engagement in a new commercial enterprise. Of the 10,000 investor visas (i.e., EB-5 visas) available annually, 5,000 are set aside for those who apply under a pilot program involving an INS-designated Regional Center.

55 EB-5 Category A "Regional Center:" Is an entity, organization or agency that has been approved as such by the Service; Focuses on a specific geographic area within the United States; and, Seeks to promote economic growth through increased export sales, improved regional productivity, creation of new jobs, and increased domestic capital investment.

56 EB-5 Qualification "Alien investors" must: Demonstrate that a "qualified investment" is being made in a new commercial enterprise located within an approved Regional Center; and, Show, using reasonable methodologies, that 10 or more jobs are actually created either directly or indirectly by the new commercial enterprise through revenues generated from increased exports, improved regional productivity, job creation, or increased domestic capital investment resulting from the pilot program.

57 EB-5 Qualification (Cont.) In general, "eligible individuals" include those: 1. Who establish a new commercial enterprise by: a- creating an original business; b- purchasing an existing business and simultaneously or subsequently restructuring or reorganizing the business such that a new commercial enterprise results; or

58 EB-5 Qualification (Cont.) c- expanding an existing business by 140 percent of the pre-investment number of jobs or net worth, or retaining all existing jobs in a troubled business that has lost 20 percent of its net worth over the past 12 to 24 months; and

59 EB-5 Qualification (Cont.) 2. Who have invested (or who are actively in the process of investing) in a new commercial enterprise: a- at least $1,000,000, or b- at least $500,000 where the investment is being made in a "targeted employment area," which is an area that has experienced unemployment of at least 150 per cent of the national average rate or a rural area; and

60 EB-5 Qualification (Cont.) 3. Whose engagement in a new commercial enterprise will benefit the United States economy and: a- create full-time employment for not fewer than 10 qualified individuals; or b- maintain the number of existing employees at no less than the pre-investment level for a period of at least two years, where the capital investment is being made in a "troubled business," which is a business that has been in existence for at least two years and that has lost 20 percent of its net worth over the past 12 to 24 months.