Immigration for Entrepreneurs

March 29, 2012

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Challenges for Small Companies

• Immigration system for large established employers• Presumption of fraud for small employers• Suspicion on Capitol Hill• But …• Immigration = Jobs • White House initiative• Entrepreneurs in Residence Program

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Specific issues

• No paper trail to show legitimacy• Too small to support professional workers• Employer-employee relationship• “Ability to Pay” for green cards

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H-1B “specialty occupation”

•Professional job•Foreign national is qualified

- Related bachelor’s degree or work experience

•Receiving same wages / working conditions•Six-year limit (with exceptions)•>>> No test of the labor market <<<•Annual limit of 85,000

- Does not apply if previously held H-1B status for a private company

- Starts on April 1

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Requirements

• Legal existence- Articles of incorporation

- Business license

- FEIN

• Employer – employee relationship• “Doing business”

- Business plan

- Evidence of funding

•Physical address- Office lease

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O-1 “extraordinary ability”

• No restrictions on the type of position• Nationally or internationally renown• Critical or essential role• Contributions of major significance• Track record of professional success

- Publications or publicity

- Prizes and awards

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TN “Trade NAFTA”

•Canadians and Mexicans only•Job offer in a designated profession

- Many scientific and medical fields

- Teachers / professors

•Border application for Canadians•No time limit and infinite two-year renewals

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Other country-specific categories

•Australia E-3•Chile and Singapore H-1B1•Similar to H-1B visa

- For specialty occupations- Employee must have bachelor’s degree- Employer must secure LCA from DOL

•Not subject to 65,000 cap•E-3 spouse eligible for work authorization•Foreign residence requirement

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F-1 Students•Academic studies: elementary through postdoctoral

- admitted for “duration of status” (D/S) – no expiration date on I-94 card

•“Optional Practical Training:” pre- or post-graduation- total = 12 months (29 months for STEM graduates who work with

employers that use E-Verify); part-time during school year, full-time during vacations and after graduation

- need employment authorization document (EAD); - School endorsed I-20 (issued via SEVIS System)

•“Curricular” practical training if part of educational program- Need letter from school- School endorsed I-20 (issued via SEVIS System)

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J-1 Trainees and Interns

•Exchange visitor program•Need a “program sponsor” which can include universities

•Some J-Visa holders must return to home country for 2 years after completion of program or seek waiver of this requirement- skills list- government funding- graduate medical education

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Green Cards

• PERM Labor certification - filed by employer on behalf of foreign national

- processed by U.S. Department of Labor

• I-140 Immigrant preference petition- Outstanding researchers

- Aliens of extraordinary ability – NOT employer-specific

- National interest waivers

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Thank you!