immigration options for entrepreneurial mba students thursday, november 12, 2015 h. ronald klasko,...

Immigration Optionsfor Entrepreneurial

MBA StudentsThursday, November 12, 2015

H. Ronald Klasko, Esq.

Klasko Immigration Law Partners, LLP

Philadelphia New York Chicago

www.klaskolaw.com


H. Ronald Klasko, Esq. Ron Klasko is the Managing Partner of Klasko Immigration Law Partners, LLP and has

been providing immigration assistance and solutions to universities for over 30 years. Ron is a past National President of the American Immigration Lawyers Association and

served for 3 years as the bar association’s General Counsel. His firm is the first immigration law firm global partner of NAFSA: Association of International Educators. Mr. Klasko has been invited by more than 30 universities and hospitals to address students and scholars.

Ron has been selected as one of six top tier immigration lawyers in the US by Chambers Global and the firm has been selected as a top tier immigration law firm by U.S. News and World Report. He is selected annually for inclusion in Best Lawyers in America. The International Who’s Who of Business Lawyers selected Ron as the “most highly regarded” immigration lawyer in the world. He is a frequent author and lecturer on university-related immigration law topics and is a former Adjunct Professor of Immigration Law at Villanova University Law School.

Ron is a graduate of the University of Pennsylvania School of Law. He has helped thousands of students navigate the complicated process of obtaining working visas and green cards.


2015 Issues

More job offers H-1B quota issues Tensions for investors and entrepreneurs

between: Obama Administration support vs. USCIS restrictive attitudes

Legislative inaction

For more information, visit www.klaskolaw.com


Employment Options for the F-1 Student

20 hours per week on campus OPT after complete studies Options for the entrepreneur

On-campus employment must be services for students OPT employment must be related to studies

Starting company while a student See “Murky F-1 Employment Issues”

(http://www.klaskolaw.com)



H-1B – General Issues

General requirements Procedure and processing time Length of approval and extensions H-1B portability Travel – dual intent



H-1B Quota

Past years 2015 What it means Employment during “cap gap”



H-1B Issues for Start-Up Business

Must establish company with employer tax I.D. number

Company can be 100% owned by H-1B employee Must be W-2 employee Company separate entity from owner/employee Independent Board of Directors or other mechanism



H-1B Issuesfor Start-Up Business

Company must prove

Financial ability to pay salary Profits and/or capitalization

Real job to be done by H-1BPlace of business

(cont’d)



H-1B Issuesfor Start-Up Business

Importance of business plan/financial projections Other employees helpful – not required Prevailing Wage

CEO vs. function-descriptive position

“Specialty Occupation” Use of concepts learned in courses

(cont’d)



H-1B Issuesfor Search Funds

Documenting the employer/employee relationship Legal entity must employ the beneficiary Reporting to a board, investors Signatory authority to someone other than the

beneficiary Ownership interest may be a red flag for further scrutiny

Demonstrating adequate specialty occupation work available



H-1B Issuesfor Search Funds

Proving that the company actively engages in business

Adequate capitalization to operate “Adequate” may be different at different phases of the

search fund (fundraising, search and acquisition, operation, and exit)

Different phases of the search fund may trigger a need to amend the H-1B Change of corporate structure Change of role during operation and exit phases


(cont’d)


Other Nonimmigrant (Temporary) Options Treaty (E) Visas

Must be national of treaty country http://www.travel.state.gov./visa

Company must be owned at least 50% by treaty country nationals



(cont’d)


Visa for 1 to 5 years Each entry limited to two years Visa and entry can be extended indefinitely

No quota Spouse can work



Treaty traders (E-1) “Substantial” import or export Majority between U.S. and treaty country Can be manager, supervisor or “essential skill”

employee

(cont’d)





Treaty investors (E-2) “Substantial” investment

No exact amount Varies depending upon type of investment Relevant issues

Amount of investment Number of employees Needs of business Likely profitability and growth potential

Business plan and financial projections critical

(cont’d)



Visa applicant can beInvestor orManager, supervisor or essential employee

(cont’d)

Other Nonimmigrant (Temporary) OptionsTreaty (E)



Intracompany Transferee(L-1) Visas

National of any country No quota Length of visa

Start up 1 year Established business 3 years Maximum length 7 years




Spouse can work Must be “international” business

Business outside U.S. with at least 50% common ownership

Must be employed by that business one year Type of employment (in U.S. and overseas companies)

Manager or executive “Specialized knowledge” employee

(cont’d)




(cont’d) Start-up issues

Place of business Employees Capitalization Need for “manager” Business plan and financial projections



Extraordinary Ability (O-1) Visas

National or international renown “One of a few at the top of his peers” Must be employer or agent

Can be own company Length of visa

3 years 1 year extensions Can extend indefinitely



Permanent Resident Status

Family Employment Investment Asylum Lottery



Permanent Resident Status Investment (EB-5)

http://www.eb5immigration.com

Amount of investment $1,000,000 or $500,000 in “targeted employment area”


http://www.eb5immigration.com/


Two possibilities Individual investment

Requires 10 full time US citizen or permanent resident employees

Regional center investment Over 800 USCIS – approved regional centers Mostly $500,000 investment Indirect employment creation ok 90-95% of all EB-5 applications

(cont’d)





Lawful source of funds Extensive documentation required Can be gift

Must prove giftor's source of funds Can borrow money

(cont’d)




Nature of investor’s relationship to business Do not have to be employee (but can) Do not have to be owner (but can)

Cannot be purely passive Limited partner ok

(cont’d)



Permanent Resident StatusEmployment

Employer-sponsored or self-sponsored Labor certification or extraordinary /

national interest / exceptional / investment Multiple petitions




Self-SponsoredExtraordinary ability or national interest

waiver Extensive documentation required Reference letters critical

(cont’d)




Employer-SponsoredMultinational Manager

Same as L-1 except must be manager or executive overseas

(cont’d)




Labor Certification Application (PERM) Employer must:

Pay attorney fees and advertising costs Define “minimum requirements” Engage in required recruitment (approximately 4-5 months) Interview U.S. worker applicants Prove unavailability of qualified, interested, and available U.S.

worker Pay prevailing wage

Usually not available to owner of business

(cont’d)




I-140 Petition1st step for EB-1 and national interest waiver2nd step for PERM

Employee documents education and experience If adjustment of status, file concurrently with I-

485 if quota current If consular immigrant visa processing, approval

sent to National Visa Center

(cont’d)




I-485 (Application for Adjustment of Status to Permanent Resident)Cannot file until quota is current Importance of filing

Do not need to maintain visa status Can file for spouse and child Can get Employment Authorization Document (EAD)

(cont’d)




Can get advance parole travel document Eliminate need to obtain visas Can still maintain and extend H-1B status

Can leave employer if I-140 approved I-485 pending 180 days Similar occupation

Permanent resident upon approval Timing and delay issues

(cont’d)



Materials

Please visit www.klaskolaw.com to download this PowerPoint presentation and relevant articles.




Questions?


H. Ronald Klasko, Esq.

[email protected]

215.825.8600


Philadelphia New York Chicago

For Further Information


www.klaskolaw.com

www.eb1immigration.com

www.worksite-compliance.com

www.eb5immigration.com

http://blog.klaskolaw.com

online


DISCLAIMER / COPYRIGHT NOTICE

The materials contained in this PowerPoint does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Copyright © 2015 Klasko Immigration Law Partners, LLP. All rights reserved.

Copyright © 2015. All rights reserved.

immigration options for entrepreneurial mba students thursday, november 12, 2015 h. ronald klasko,...

Documents

immigration assistance

tier immigration law

ron klasko

tier immigration lawyers

ronald klasko

regarded immigration

llp employment options

b employee