immigration challenges for startups and emerging businesses

CONFIDENTIAL 1Copyright © 2015 Berry Appleman & Leiden LLP

Immigration Challenges for

Start-ups and Emerging Businesses#StartupImmigration

CONFIDENTIAL

With You Today

Copyright © 2015 Berry Appleman & Leiden LLP 2

Delya GhoshPartner

BAL Erika MalzbergCMOEGFS

CONFIDENTIAL

Berry Appleman & Leiden

• Full-service, corporate immigration law firm, established in 1980

• 90+ attorneys, solicitors and/or immigration managers

• 500+ employees around the world

• Offices across the US and in Australia, Brazil, China, Singapore, Switzerland and UK

• Network Partners in over 150 countries

• Significant experience with diverse multi-national corporations, in industries including information technology, pharmaceuticals, manufacturing, engineering, life sciences and financial services

4Copyright © 2015 Berry Appleman & Leiden LLP

CONFIDENTIAL

“Startups face a huge burden in today’s

economy, often having to choose

between funneling resources toward

creating their goods and services or

managing the often complex

accounting, tax and financial strategy

planning necessary to run a successful

business.”

~ David Ehrenberg,

Founder and CEO

Early Growth Financial Services

www.earlygrowthfinancialservices.com

CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 6

Today’s Agenda

• Immigration agencies and key concepts

• Common nonimmigrant visas and

challenges for start-ups

• Green card process overview and

challenges

• Special considerations for Founders/Owners

CONFIDENTIAL

• Department of Homeland Security

U.S. Citizenship & Immigration Services (USCIS)

U.S. Customs & Border Protection (CBP)

U.S. Immigration & Customs Enforcement (ICE)

• Department of Labor

• Department of State


What are the

Relevant Agencies?


Key Immigration Concepts

Non-Immigrant vs. Immigrant

What is the difference between a visa and status?

I-94 record controls length of stay, not visa

Quotas

CONFIDENTIAL

• Coming to the United

States temporarily

• Retain residence

abroad (required for

certain categories)

• Dual intent: only for

H’s and L’s

• Alphabet Soup of

non-immigrant visas:

A-V


Non-Immigrant Visas

CONFIDENTIAL

• B-1/B-2 Business Visitor/Tourist

• E-1/E-2 Treaty Trader/Treaty Investor

• E-3 Australian

• F-1 Student

• H-1B Specialty Occupation

• H-3 Trainee

• J-1 Cultural Exchange Visitor

• L-1 Intra-company Transferee

• O-1 Extraordinary Ability

• TN Treaty Nafta


Common Non-Immigrant

Visas/Status

CONFIDENTIAL

• Professionals - Specialty occupation (degree in field

required)

• Not based upon shortage of U.S. workers

• Numerically limited: ~ 85,000/year

• Issued in 3-year increments

• 6-year limit with exceptions: AC21

LC filed 365 days before final stay

I-140 approval and Immigrant quota backlog


Snap Shot: H-1B Specialty Occupation Workers

CONFIDENTIAL

• For managers/executives (L-1A) or specialized knowledge professionals (L-1B)

• Requires 1 year employment abroad at qualifying organization within past 3 years

• Spousal employment permitted with EAD card

• 7-year limit for L-1A

• 5-year limit for L-1B


Snap Shot: L-1A/L-1B Intracompany Transfers

CONFIDENTIAL

• Quota for new H-1B’s exhausted for 2015

• Increased scrutiny for businesses with less than 25

employees

• Elevated evidentiary requirements to prove bona

fide business

• Brick and mortar business requirement

• Prevailing Wage requirements

• Employer–Employee relationship required or implied

for many non-immigrant visa categories


Non-Immigrant Visa Challenges

Faced by Start-ups


Immigrant Visas


Immigrant Visas and

Permanent Residence: You can take one of four roads…

Green Card

Employment Based

Family BasedGreen Card

Lottery (Diversity Visa Program)

Asylum and related programs


Employment Based (EB)

Preference Categories

Employment Based

First Preference

(EB-1)

Second Preference

(EB-2)

Third Preference

(EB-3)

CONFIDENTIAL

• EB-1 does not require labor certification

Extraordinary Ability

Outstanding Professor/Researcher

Multinational Executive/Manager

• EB-2 and EB-3 require a PERM labor

certification: a test of the U.S. labor market


First, Second and Third

Preference Categories


Permanent Residence Process

CONFIDENTIAL

• Typically first step of the green card process

• Electronic filing with Department of Labor

• Must describe position, job requirements and recruitment efforts

• Must show shortage of qualified, willing or available U.S. workers

• Recruitment steps mandated by regulation

• PERM filing date establishes “priority date” for immigrant visa


Stage 1 – Labor Certification:

PERM

CONFIDENTIAL

• File within 6 months of PERM approval

• Establishes employee’s qualifications for the

job

• Designates immigrant preference category

(EB-1, 2, 3) and priority date

• Establishes employer’s ability to pay the

offered wage


Stage 2 – I-140 Immigrant Visa

Petition


Visa Delays

All green cards are the same, so why do

categories matter?

• The complicated quota system:

The Immigration and Nationality Act (INA) sets an annual minimum family-

sponsored preference limit of 226,000. The worldwide level for annual

employment-based preference immigrants is at least 140,000. The per-country

limit for preference immigrants is set at 7% of the total annual family-sponsored

and employment-based preference limits, i.e., 25,620. The dependent area limit

is set at 2%, or 7,320. EB-1 is 28.6% of the worldwide EB preference level, plus any

numbers not required for fourth and fifth preferences. EB-2 is 28.6% of the

worldwide EB preference level, plus any numbers not required by first preference.

EB-3 is 28.6% of the worldwide level, plus any numbers not required by first and

second preferences, not more than 10,000 of which to "Other Workers". EB-4 is

7.1% of the worldwide level. EB-5 is 7.1% of the worldwide level.

• The Visa Bulletin (updated monthly)

CONFIDENTIAL

• Priority date on Visa Bulletin must be current to file form I-485

• Adjustment of Status (AOS) filed with USCIS

• May be filed concurrently with Stage 2 (Form I-140) when immigrant visa is available

• Employment Authorization Document (EAD) and Advance Parole (AP) available

• Alternative: Immigrant visa application filed at U.S. consulate abroad


Stage 3 – Application for

Permanent Residence

CONFIDENTIAL

• Ownership interest may impact eligibility

• Demonstration of Ability to Pay

• GC’s are location and position specific:

Material changes in job may require new

filings

• Employee may not rise to EB1 eligibility.

Company also may not meet EB1

requirements.


Green Card Challenges

Faced by Start Ups

CONFIDENTIAL

• When is a work visa required?

• Controlling interest can impact eligibility for

both non-immigrant/immigrant visas

• Presidential executive order: Enhance

options for foreign entrepreneurs

• EB5 Investor Visas


Special Considerations for

Founders/Owners

CONFIDENTIAL

Q&A and Contact Us

Delya Ghosh, Partner

(415) 743-9694

[email protected]

www.balglobal.com

Erika Malzberg, CMO

(415) 234-3437

[email protected]

www.earlygrowthfinancialservices.com

@EarlyGrowthFS

mailto:[email protected]

http://www.balglobal.com/

mailto:[email protected]

http://www.earlygrowthfinancialservices.com/

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