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BUSINESS: INVESTORS AND KEY EMPLOYEES Immigration and Nationality Law Section Program

Richard A. Gump, Jr. Law Offices of Richard A. Gump, Jr., P.C.

One Galleria Tower 13355 Noel Road, Suite 1940

Dallas, Texas 75240-6834 www.rickgump.com

Elise Healy Spencer Crain

1201 Elm Street, Suite 4100 Dallas, Texas 75270

(214) 290-0004 [email protected]

Friday, June 11, 2010 8:30 a.m. – 11:30 a.m.

RICHARD A. GUMP, JR.

Law Offices of Richard A. Gump, Jr., P.C.

One Galleria Tower, 13355 Noel Road, Suite 1940 Dallas, Texas 752406834 www.rickgump.com

Rick Gump has significant experience in strategic planning for business and personal visas for international personnel and immigration related compliance and risk assessment. Client work includes nonimmigrant and immigrant visas related to investors, persons of extraordinary ability, professionals, technical personnel, and due diligence in mergers and acquisitions. He has handled many complex cases involving company transfers of executives and self petitioning experts in the top 10% of their field of endeavor. Clients in need of both temporary E2 and permanent EB5 investor visas have been a mainstay practice area since 1973, and include investors in EB5 Regional Centers and targeted employment areas. He

handled the first employer sanctions case filed in the Southwestern United States under the Immigration Reform and Control Act of 1986 ("IRCA"), and was cocounsel in one of the largest civil/criminal settlements in worksite compliance history. Immigration related audits of businesses, training of personnel, and ICE worksite enforcement cases are essential areas of practice.

Very active in Dallas community affairs, Mr. Gump has served as President of the Board of Directors of Catholic Charities, the Downtown YMCA, and the Dallas Texas Exes. He was a recipient of the 2005 Dallas Texas Exes Outstanding Alumnus Award and the 2009 Dallas YMCA Theodore P. Beasley Distinguished Leadership Award. Currently, he is a member of the Salesmanship Club and on the Executive Committee of the Board of Directors of the YMCA of Metropolitan Dallas, where he chairs the Strategic Issues Committee. Education:

The University of Texas School of Law, Austin, Texas, 1972 Doctor of Jurisprudence Honors: Member, Phi Delta Phi

University of Texas, Austin, Texas, 1969 Bachelor of Arts Major: Government

Professional Associations: American Immigration Lawyers Association International Bar Association

American Bar Association, International and Labor Employment Law Sections State Bar of Texas, International, Labor Employment Law Sections

Federal Bar Association Dallas Bar Association World Affairs Council Dallas Committee on Foreign Relations John G. Tower Center for Political Studies at Southern Methodist University

Languages:

Spanish

Elise A. Healy

Board Certified in Immigration & Nationality Law by the Texas Board of Legal Specialization, Elise A. Healy leads Spencer Crain’s business immigration practice. For almost two decades, she has helped U.S. and foreign companies secure the global talent they need to be competitive. Widely recognized as a top attorney in the field of immigration law, Ms. Healy represents businesses ranging from multinationals to start-ups, in all types of immigration matters. She is among the very few immigration lawyers with in-depth experience in representing immigrant investors through the “EB-5” employment creation visa program, including both individual and Regional Center petitioners. She represented the City of Dallas in obtaining USCIS approval of its Regional Center program in September 2009. Ms. Healy is immigration counsel to Civitas Capital Management LLC, which operates and manages the City of Dallas Regional Center. EB-5 Expertise Since the EB-5 program began in 1991, Ms. Healy has represented numerous investors from China, India, Pakistan, South Africa, Brazil, the Middle East, the United Kingdom, the Netherlands and Luxembourg in successfully achieving the benefits of permanent residence through business investment and job creation. She co-counsels with business lawyers who are not familiar with the EB-5 requirements, the changing adjudication standards, or the developing EB-5 case law, to assist their investor clients in combining business investment with EB-5 immigration benefits. She works with contacts within US Citizenship & Immigration Services (USCIS) to achieve those goals. Ms. Healy recognizes that USCIS EB-5 adjudicators—now organized in a specialized unit at the California Service Center—scrutinize each EB-5 petition closely. She works closely with investors in preparing the clear documentation that is the key to success in this complex visa program. Each investor’s case is treated individually. Over the years, she has become familiar with the business practices and documentary weaknesses typical of many foreign jurisdictions and can work with investors to overcome them. She has developed a strong network of carefully vetted lawyers abroad, who assist her in developing sufficient foreign documentation to meet USCIS regulatory requirements. Importantly, she also recognizes cases where that cannot be achieved.

Shareholder 214.290.0004 [email protected]

Ms. Healy’s clients benefit from her focus on developing credible evidence of the source of the investment funds, on drafting clear business plans and on ensuring that investors are admissible. Based on her experience, Ms. Healy has developed a standard protocol to screen investors as to admissibility, obtain adequate disclosures of prior business investments and assets, and assist them in developing and documenting qualifying US investment projects and vehicles. Ms. Healy is a frequent lecturer on business and investor immigration issues before such professional organizations as the American Immigration Lawyers Association (AILA), the Society for Human Resource Management (SHRM), the Association of Corporate Counsel, Hospitality Financial and Technical Professionals (HFTP), the National Foreign Trade Council, as well as Chambers of Commerce in the U.S. and in China. She has also spoken at private investor seminars in São Paulo, Shanghai, Beijing and Zhongzhou. She served on the AILA-USCIS Texas Service Center liaison committee from 2006-2007 and on the AILA-USCIS California Service Center liaison committee for 2007-2008. She is Vice Chair of the Immigration and Nationality Law Advisory Committee and a member of the Examination Committee, Texas Board of Legal Specialization. She was recently asked to serve as Vice-Chair, Business Immigration for the newly formed Immigration & Nationality Law section of the Texas Bar Association.

Practice Areas Business Immigration Investment-based Immigration Citizenship Discrimination Complaints Immigration Investigations and I-9 Audits

Industries High Tech Research & Development Financial Services

Energy Manufacturing Hospitality & Restaurants

Education J.D., Southern Methodist University Dedman School of Law, 1991 M.P.A., New York University, 1980 A.B., Barnard College, Columbia University, 1972

Bar Admissions Texas

Court Admissions U.S. Court of Appeals for the Fifth Circuit U.S. District Court, Northern District of Texas

Awards & Recognitions "The Best Lawyers in America” (2005-2010) "Texas Super Lawyers" (Texas Monthly magazine, 2006-2009) Martindale-Hubbell AV® Peer Review Rated

Professional Affiliations American Immigration Lawyers Association Dallas Bar Foundation Society for Human Resource Management Texas Bar Association Immigration and Nationality Law Advisory Committee Vice Chair, Texas Board of Legal Specialization Immigration and Nationality Law Examination Committee member, Texas Board of Legal Specialization

Previous Law Firm Experience Epstein Becker & Green, PC Baker & McKenzie AV, BV and CV are registered certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell certification procedures, standards and policies. Martindale-Hubbell is the facilitator of a peer review rating process. Ratings reflect the confidential opinions of members of the Bar and the Judiciary. Martindale-Hubbell Ratings fall into two categories - legal ability and general ethical standards.

BUSINESS VISAS FOR THE NON-IMMIGRATION PRACTITIONER

By: Richard A. Gump, Jr. and Matthew D. Gross

Welcome to a confusing world of alphabetic visa names and illogical law. The purpose of this paper is to help the non-immigration practitioner grasp the basic terms and issues facing his/her client company and/or individual foreign national. First, understand that the road to U.S. citizenship is normally a long one. A graduating student on the journey to legal employment and eventually naturalized citizenship will spend years achieving that goal, that is, if he/she is lucky enough to traverse the rocky labyrinth of temporary and permanent visas, quota systems, and regulatory approvals from the United States Citizenship and Immigration Services (“USCIS”), Department of Labor (“DOL”), Department of State (“DOS”), and others. Second, employment based temporary visas are quicker but are generally employer specific and must meet rigid guidelines of pay, duties, time and qualifications. Temporary visas are non-immigrant visas (“NIVs”) while permanent visas are called immigrant visas (“IVs”) or green cards (but they are no longer green). NIVs are defined by the authorized stay limits, quota limits, and whether they permit business or employment authorization. To explain employment authorization, consider the example of a Canadian attorney who comes to your office on the equivalent of a B-1 visa entry at your request to visit with a mutual client regarding the merger of a Canadian company with a U.S. company. The Canadian lawyer can discuss strategy in your conference room, but he cannot draft a contract or merger document while in the U.S. because a B-1 business visitor does not have employment authorization. Furthermore, it would be wise for the U.S. attorney to bring an immigration attorney to answer questions regarding the transferring of any Canadian employees versus the conflicting organizational plans being promulgated by the tax attorney. Thus an authorized entry into the U.S. does not equal work authorization. Third, the unwary business may find Immigration and Customs Enforcement (“ICE”) at the door if it fails to have immigration related practices in good order (e.g. verification policies and procedures, visa compliance with timely extensions and required public files). Recognizing that employment authorization, authorized stay, and quotas determine the type and length of time to obtain an NIV or IV, an attorney must strategically plan for the short term and long term goals of the employing organization as well as the foreign national and his family. Below are some of the more commonly used visas in the context of business related employment and investment.

Non-Immigrant or Temporary Visas (NIVs) L-1A - Intra-Company Transfers1 The L-1A nonimmigrant visa was designed for the transfer of intra-company managers and executives from foreign entities to related U.S. entities. To obtain the L-1A visa, the following requirements must be met:

! The U.S. entity must have a relationship with the foreign entity from which the foreign national is transferred.

! The business relationship between the business entities may be parent/subsidiary, a branch relationship, or the businesses may be affiliates.

! The foreign national must have been employed in an executive or managerial capacity for at least one of three prior years abroad by an entity related to the prospective U.S. employer.

! The foreign national must be transferred to work in an executive or managerial capacity for a U.S. entity related to a foreign entity or for a foreign entity that does business in the U.S.

! The managerial position may include the management of a function, not merely the management of subordinate personnel. 2

The L-1A visa recognizes dual intent, or simply put, relieves the foreign national of proving that he/she intends on remaining in the U.S. for only temporary periods of time. The individual may intend on remaining in the U.S. permanently and pursue permanent residence without violating the terms of the L-1A visa. Additionally, the L-1A visa category has a corresponding immigrant visa category (see section regarding EB-1.3 below). The immigrant category available to L-1A intra-company transferees allows the foreign national to apply for permanent residence without first waiting for his/her employer to obtain a Labor Certification.3 This benefit saves both time and money for the employer and employee and is a highly beneficial aspect of the L-1A visa. L-1B Specialized Knowledge In 1970, the L-1B was created to allow U.S. employers with international operations to transfer employees from abroad to integrate specialized knowledge with that possessed by the company’s US staff. Specialized knowledge is defined as 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. 4

1 8 C.F.R. § 214.2(l)(1)(ii) 2 USCIS does not recognize the position of “first line supervisors” as management personnel. 3 A labor certification is a test of the U.S. labor market to determine whether qualified U.S. workers are available and willing to fill the job in question. This process is commonly called “PERM”. 4 8 C.F.R. § 214(2)(l)

The current definition of specialized knowledge contains two separate criteria and involves a lesser, albeit strict standard. The James A. Puelo Memo,5 dated May 9, 1994, is the current authority on this subject. The statute states that a foreign national has specialized knowledge if he/she has special knowledge of the company product and its application in international markets or has an advanced level of knowledge in the processes and procedures of the company. The knowledge need not be proprietary or unique, but must be different or uncommon. The test for specialized knowledge involves only an exam of the knowledge possessed by the foreign national, not whether similarly employed U.S. workers exist. Characteristics of a foreign national who has specialized knowledge may include:

! Possesses knowledge that is valuable to the employer’s competitiveness in the marketplace.

! Qualified to contribute to the U.S. employer’s knowledge of foreign operating conditions as a result of the special knowledge not generally found in the industry.

! Has been utilized abroad in a capacity involving significant assignments which have enhanced the employer’s productivity, competitiveness, image or financial position.

! Possesses knowledge, which, normally can be gained only through prior experience with that employer.

! Possesses knowledge of a product or process which cannot be easily transferred or taught to another individual.

! The foreign national has knowledge of a process or product which is of a sophisticated nature, although not unique to the foreign firm, but is generally not known in the U.S.

Possible situations requiring a foreign national possessing specialized knowledge:

! The foreign company manufactures a product which no other firm manufactures. ! The foreign company manufactures a product which is significantly different from other

products in the industry. ! The foreign national has knowledge of a foreign firm’s business procedures or methods

of operations to the extent that the U.S. firm would experience a significant interruption of business in order to train a U.S. worker to assume these duties.

The petitioner bears the burden of establishing through the submission of probative evidence that the foreign national’s knowledge is uncommon, noteworthy or distinguished by some unusual quality and not generally known by practitioners in the foreign nationals field of endeavor. Much like the L-1A, the L-1B visa recognizes dual intent. The L-1B requires the foreign national’s employer to go through the labor certification process before filing the immigrant visa petition.

5 Memorandum, “Interpretation of Special Knowledge,” James A. Puleo, Acting Exec. Assoc. Comm’r for Operations (Mar. 4, 1994)

H-1B Specialty Occupation The H-1B nonimmigrant visa is used by companies and other organizations to temporarily employ foreign nationals who qualify as persons in “specialty occupations.” H-1B classification may be granted to:

“An alien who will perform services in a specialty occupation which requires theoretical and practical application of a body of highly specialized knowledge and attainment of a baccalaureate or higher degree or its equivalent as a minimum requirement for entry into the occupation, in the United States, and who is qualified to perform services in the specialty occupation because he/she has attained a baccalaureate, or higher degree or its equivalent in the specialty occupation.” 6

“Specialty occupation” is defined as:

“An occupation which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation in such fields of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts, and which requires the attainment of a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry into the occupation in the United States.” 7

The employer must show that the offered position requires at least one of the following criteria to qualify as a specialty occupation:

! A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position.

! The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative; an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree.

! The employer normally requires a degree or its equivalent for the position. ! The nature of the specific duties is so specialized and complex that knowledge required to

perform the duties is usually associated with the attainment of a baccalaureate or higher degree.8

To receive H-1B non-immigrant classification, the foreign national must:

! Hold a U.S. baccalaureate or higher degree required by the specialty occupation from an accredited college or university.

6 8 C.F.R. § 214(h)(4)(I)(A) 7 8 C.F.R. § 214(h)(4)(ii)(E) 8 8 C.F.R. § 214(h)(4)(iii)(A)

! Hold a foreign degree determined to be equivalent to a U.S. baccalaureate or higher degree required by the specialty occupation from an accredited college or university.

! Hold an unrestricted State license, registration or certification which authorizes the foreign national to fully practice the specialty occupation and be immediately engaged in that specialty in the state of intended employment.

! Have education, specialized training and/or progressively responsible experience (three years of progressively responsible experience equals one year of college level credit) that is equivalent to the completion of a U.S. baccalaureate or higher degree in the specialty occupation, and have recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.9

Before the H-1B is filed with USCIS, the employer must file a labor condition application (“LCA”). This form (ETA 9035)10 is filed with the Department of Labor’s Employment and Training Administration (“ETA”), attesting that the employer:

! Will pay the H-1B nonimmigrant at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question or the prevailing wage level for this occupational classification in the area of employment, whichever is higher.11

! The employment of the H-1B nonimmigrant will not adversely affect the working conditions of workers similarly employed in the area of intended employment.12

! On the date the LCA is signed and submitted to the DOL, there is no strike, lockout or work stoppage in the course of a labor dispute in the occupational classification in which the H-1B nonimmigrant will be employed at the place of employment.13

! As of the date of filing, a posted notice of the LCA filing has been provided to workers employed in the occupation in which the H-1B nonimmigrant will be employed.14

The DOL has seven working days in which to certify the LCA, checking completeness, obvious inaccuracy, and previous employer disqualification. Once the LCA has been certified by the DOL, USCIS will determine if the application involves a specialty occupation and whether the foreign national for whom H-1B classification is sought qualifies to perform services in the specialty occupation. The H-1B petition may be approved for an initial three year period, with the opportunity to obtain an additional three year extension (for a total of six years as an H-1B). Any material changes in employment, i.e., change in location of worksite, change in job title and duties, (etc.) may necessitate the filing of a new petition, a new LCA, or both. The current law limits the number of foreign nationals who may be issued an H-1B visa to 65,000 per fiscal year. Petitions for new H-1B employment are exempt from the annual cap if the

9 8 C.F.R. § 214(h)(4)(iii)(C) 10 http://www.foreignlaborcert.doleta.gov/preh1bform.cfm 11 20 C.F.R. § 655.731 12 20 C.F.R. § 655.732 13 20 C.F.R. § 655.733 14 20 C.F.R. § 655.734

beneficiaries will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations. In addition, the first 20,000 H-1B applications submitted by individuals who have received a master’s degree from a U.S. institute of higher learning are also exempt. All new petitions received after the initial 20,000 on behalf of beneficiaries possessing U.S. Master’s degree or higher, are counted against the cap. Foreign nationals in the U.S. in lawful H-1B status who are seeking to extend their visa or change employers are not affected by the annual limit. It is important for employers to remember that the foreign national they are petitioning for must be in valid non-immigrant status until October 1 of the current year. If the foreign national will not be in valid status before that time, they may be required to leave the U.S. and obtain an H-1B visa from the U.S. Embassy or Consulate in their home country. TN - North American Free Trade Agreement (“NAFTA”) The North American Free Trade Agreement created the TN non-immigrant classification. TN status is for Canadian and Mexican citizens engaged in activities at the professional level. The TN is similar to the H-1B category except there is no statutory limitation on the maximum stay on the visa. Additionally, the TN classification generally enumerates a broader range of job categories while the H-1B is not job category specific. The TN status is more advantageous for Canadian citizens seeking entry than for Mexican citizens. There is no numerical cap for the TN as there is for the H-1B. The following requirements must be met in order for a professional from Canada or Mexico to work in the U.S. in TN classification:

! Applicant is a citizen of Canada or Mexico. ! Profession is on the NAFTA list. ! Position in the U.S. requires a NAFTA professional. ! Mexican or Canadian applicant is to work in a prearranged full-time or part-time job, for

a U.S. employer (self employment is not permitted). ! Professional Canadian or Mexican citizen has the qualifications of the profession.

Generally, a Canadian citizen does not need a visa to enter the U.S. in TN status and can apply for TN status at a U.S. port of entry, although a visa can be issued if requested. A Canadian residing in another country with a non-Canadian spouse and child will need to apply for a visa to enable their dependents to accompany or join the beneficiary, as a TD visa holder. Mexican citizens must first apply for a TN visa at a U.S. Consulate before entering the U.S. As part of the visa application process, an interview at the U.S. Embassy or Consulate is required for visa applicants from age 14 to 79, with few exceptions. Persons age 13 and younger, and age 80 and older, generally do not require an interview, unless requested by the U.S. Embassy or Consulate.

The waiting time for an interview appointment for applicants can vary, so early visa application is strongly encouraged. Information on visa wait times, how to schedule an appointment, fees, required documents, and processing times can be found at http://www.usembassy.gov/. Unlike H-1B and L-1 status, TN does not recognize dual intent and the applicant must show his/her intended stay is temporary, without the intent to establish permanent residence. A complete list of professions with minimum education requirements and alternative credentials can be found in Appendix 1603.D.1 of the North American Free Trade Agreement.15 With some exceptions, each profession requires a baccalaureate degree as an entry-level requirement. E-3 – Specialty Occupation Professionals The E-3 classification applies only to nationals of Australia and has the same general requirements as the H-1B classification. The foreign national must be coming to the United States solely to perform services in a specialty occupation; the specialty occupation requires theoretical and practical application of a body of knowledge in professional fields; and, at least the attainment of a bachelor's degree, or its equivalent, as a minimum for entry into the occupation in the United States. Unlike the H-1B classification, the prospective E-3 employee will need to apply for his/her status at a U.S. Consulate or Embassy that processes nonimmigrant petition based visas. The following is required on the appointment date with the U.S. Embassy or Consulate:

! State Department Nonimmigrant Visa Application Form (Form DS-160). ! Certified Labor Condition Application for E-3 Australia. ! Proof of Australian citizenship. ! Letter from the prospective employer describing the job duties, academic requirements,

salary and anticipated length of stay (up to two years initially). ! Evidence of academic or other qualifying credentials. If the degree was not obtained from

a U.S. university, it should be accompanied by a credentials evaluation. ! In the absence of academic or other qualifying credential(s), evidence of education and

experience that is equivalent to the required U.S. degree. ! Copy of a license in the state of intended employment, if required to practice the specialty

occupation, or if licensure is not necessary to immediately commence employment, evidence that you will be able to obtain the required license within a reasonable time after admission.

If a foreign national is in the U.S. in a different nonimmigrant classification, the employer may apply for a change of status to E-3 nonimmigrant temporary worker classification. The E-3 does not have a numerical cap, and classification is initially granted for two years. Extensions may be granted in two year increments; however there is no limit to the amount of time spent in the U.S. in E-3 status.

15 U.S. Department of State Foreign Affairs Manual, Vol. 9 § 41.59 (9 FAM 41.59)

O-1 Extraordinary Ability Workers of extraordinary ability are defined by law as those who can show that they have 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.16 Extraordinary ability is a level of expertise indicating that the individual is one of a small percentage who has risen to the very top of their field of endeavor. In other words, the worker should be the cream of the crop. To qualify for an O-1 visa, the beneficiary must demonstrate extraordinary ability as provided below, and must be coming temporarily to the United States to continue work in the area of extraordinary ability. The petitioner must provide the following:

! A written advisory opinion from a peer group (including labor organizations) or a person designated by the group with expertise in the foreign national’s area of ability.

! A copy of any written contract between the foreign national and the petitioner or a summary of the terms of the oral agreement under which the foreign national will be employed.

! An explanation of the nature of the events or activities, the beginning and ending dates for the events or activities, and a copy of any itinerary for the events or activities.

! Evidence that the foreign national has received a major, internationally-recognized award, such as a Nobel Prize, or evidence of at least (3) three of the following: 17

o Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor.

o Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized international experts.

o Published material in professional or major trade publications, newspapers or other major media about you and your work in the field for which classification is sought.

o Original scientific, scholarly, or business-related contributions of major significance in the field.

o Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought.

o A high salary or other remuneration for services as evidenced by contracts or other reliable evidence.

o Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought.

o Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.

16 INA §214.2(o)(3) 17 8 C.F.R. § 214.2(o)(3)(iii)

If the above standards do not readily apply to the petitioner’s occupation, USCIS will accept comparable evidence in order to establish O-1 eligibility. Much like the H-1B and L-1 classifications, the O-1 classification recognizes dual intent. E-1 Treaty/Trader Visa 18 The E-1 nonimmigrant visa category is available to foreign nationals who are entering the U.S. solely to carry on substantial trade between the U.S. and their country of citizenship. The E-1 visa is useful for business personnel seeking entry into the U.S. for extended periods of time. The foreign national can apply for the visa at an American consul. The following requirements must be met to qualify for the E-1 treaty trader status:

! A Treaty of friendship, commerce, and navigation or Bilateral Investment Treaty must exist between the U.S. and the country of nationality of the treaty trader.

! The foreign national must be seeking entry into the U.S. solely to carry on substantial trade between the U.S. and the foreign country. “Substantial trade” is defined as 51 percent of total volume between U.S. and treaty country.

! The nationality of the company which conducts trade in the U.S. must have the same nationality as the treaty country. The nationality of the company is determined by the nationality of those persons who own at least 50 percent of the stock of the corporation. The nationality of the persons owning stock is determined by their country of citizenship.

! The person for whom treaty trader status is sought must fill a key role with the company, either as the person who has developed and directed the trade between the two countries, as a qualified manager, or a specially trained and highly qualified employee necessary for the development of the investment (essential employee).

The following countries have entered into a treaty with the United States which qualifies nationals to apply for an E-1 nonimmigrant visa:19 Argentina Australia Austria Belgium Bolivia Bosnia/Herzegovina Brunei Canada Chile Colombia Costa Rica China (Taiwan) Croatia Denmark Estonia Ethiopia Finland France Germany Greece Honduras Iran Ireland Israel Italy Japan Jordan Korea (South) Kosovo Latvia Liberia Luxembourg Macedonia Mexico Montenegro Netherlands Norway Oman Pakistan Paraguay Philippines Poland Serbia Singapore Slovenia Spain Suriname Sweden Switzerland Thailand Togo Turkey Yugoslavia United Kingdom There is no limit on the duration of stay for foreign nationals maintaining E-1 treaty trader status, but the foreign national’s authorized stay received at U.S. ports of entry will generally be for one year at a time. Extensions of stay may be granted in increments of time of not more than two years. As long as the company and the foreign national continue to qualify under the treaty trader 18 8 C.F.R. § 214.2(e) 19 http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3726.html#

visa provision and the foreign national is maintaining his/her status, he/she may remain in the U.S.

Immigrant or Permanent Visas (IVs) In the Immigration and Nationality Act of 1990, Congress designated preference groups for immigrating to the United States. Several categories of preference immigrants were established, including Employment-Based (“EB”) categories. A limited number of visas are made available each year to individuals in these preference categories. There are five employment based categories:

! EB-1 Priority Workers o Extraordinary ability in the sciences, arts, education, business or athletics o Outstanding professors and researchers o Certain multinational executives and managers

! EB-2 Professionals with Advanced Degrees or Persons with Exceptional Ability

o Members of the professions holding advanced degrees20 or their equivalent o Exceptional ability in the sciences, arts or business

! EB-3 Skilled or Professional Workers

o Professionals with a baccalaureate degree (not qualifying for a higher preference category)

o Skilled workers (minimum two years training and experience) o Other workers (requiring less than two years' training or experience)

! EB-4 Special Immigrants

o Religious workers working with a religious organization in the U.S. o Employees and former employees of the U.S. Government abroad o Retired employees of international organizations

! EB-5 Investors

o Employment creation through investment EB-1 Priority Workers The EB-1 category for priority workers includes:

! EB-1.1: Aliens of extraordinary ability in the sciences, arts, education, business, and athletics. 21

! EB-1.2: Outstanding professors and researchers with universities or private employers that have established research departments. 22

20 Requires a Masters degree or higher. In place of a Masters degree, a foreign national may use a U.S. baccalaureate degree or a foreign equivalent degree and at least five years of progressive post-baccalaureate experience in the specialty. 21 INA §203(b)(1)(A)

! EB-1.3: Intra-company transfers (managers and executives) who may be transferred to the U.S. 23

The creation of these categories allowed a more speedy entry for these types of individuals. Labor Certifications are not required for these three categories, and a job offer to the foreign national is required only for the last two categories (outstanding professors/researchers and multinational managers/executives). Immigrant Visas for Aliens of Extraordinary Ability (EB-1.1) The requirements and criteria for the EB-1.1 classification are much like that of the O-1 nonimmigrant visa criteria. Regulations state that the EB-1 extraordinary ability worker should show that he or she will substantially benefit prospectively for the United States. However, the USCIS has determined that, as a general rule, satisfying at least three of the stringent regulatory criteria is evidence, in and of itself, that the worker will benefit the United States. An EB-1 petition may be filed by the foreign national as a self-petitioner or by an employer. A distinct advantage to this sort of classification is that there is no requirement for a Labor Certification. Immigrant Visas for Intra-Company Transfers (EB-1.3) Certain multinational managers and executives who are transferable to the U.S. by the petitioning employer from an affiliate abroad may qualify for the EB-1 category. Much like the L-1A nonimmigrant classification, a foreign national must have been employed in a managerial or executive capacity at least one year in the three years immediately preceding his/her transfer to the U.S. by the overseas affiliate, parent, subsidiary, or branch of the U.S. employer, and he/she must be coming to work in the U.S. in a managerial or executive capacity. 24 EB-2 Professionals with Advanced Degrees or Persons with Exceptional Ability The employment based second preference category contains two subcategories: members of professions holding advanced degrees; and aliens of exceptional ability. Also included in this category are physicians intending to practice medicine in underserved areas and Soviet scientists. As a general rule, a labor certification is required. If the position falls under a special category (“Schedule A”) 25 then a labor certification is not required. The DOL defines positions that fall under Schedule A such as physical therapists, professional nurses, and foreign nationals with exceptional abilities in the sciences and arts. Each year the second preference category is allotted about 40,000 visas, including any not used in the first preference. Visa numbers are available for most foreign nationals, however, foreign nationals from India and China have experienced significant backlog.

22 INA §203(b)(1)(B) 23 INA § 203 (b)(1)(C) 24 8 C.F.R. § 214.2(l)(1)(ii)(G) 25 20 C.F.R. 656.5

EB-3 Skilled or Professional Workers 26 A labor certification is required for all EB-3 petitions. The DOL classifies an EB-3 professional as one that holds a U.S. baccalaureate degree or foreign equivalent degree that is normally required for the profession. A skilled worker position is not seasonal or temporary and requires at least two years of experience or training. This training requirement may be met through relevant post-secondary education. The “other worker” category are positions that require less than two years of higher education, training, or experience, such as an unskilled worker who can perform labor for which qualified workers are not available in the United States. Due to the long backlog, a petitioner could expect to wait many years before being granted a visa under the EB-3 category E-2 Temporary (NIV) and EB-5 Permanent (IV) Investor Visas The Immigration and Nationality Act (“INA”) provided nonimmigrant and immigrant categories for foreign nationals who want to invest money in an enterprise in the United States. Business investors can gain temporary admission as E-227 treaty traders or permanent residency as entrepreneurs under the Employment-Based Fifth Preference Immigrant (“EB-5”) category. The E-2 is an advantageous beginning for foreign national investors who would like to obtain Permanent Residency in the United States through the EB-5 category but do not have the required capital. Thus, clients can use the E-2 as a segue to EB-5 status. E-2 Treaty/Trader Visa (NIV) The following requirements must be met to qualify for the E-2 treaty trader status:

! A Treaty of Friendship, Commerce, and Navigation or Bilateral Investment Treaty must exist between the U.S. and the country of nationality of the treaty trader.

! The individual or the firm has the nationality of the treaty country (at least half of the company must be owned by nationals of the treaty country).

! The individual or the company has made or is in the process of making a substantial investment in a business in the U.S.

! The individual is either the principal investor, who will direct and develop the enterprise, or an executive, manager or employee with special skills essential to the company.

! The investment is not the individual’s sole income source.

26 INA § 203(b)(3)(A) 27 8 C.F.R. § 214.2(e)

The following countries have entered into a treaty with the United States which qualifies nationals to apply for an E-2 nonimmigrant visa: 28 Albania Argentina Armenia Australia Austria Azerbaijan Bahrain Bangladesh Belgium Bolivia Bosnia /Herzegovina Bulgaria Cameroon Canada Chile Colombia China (Taiwan) Costa Rica Croatia Congo (Brazzaville) Congo (Kinshasa) Denmark Ecuador Egypt Estonia Czech Rep. Ethiopia Finland France Georgia Germany Grenada Honduras Iran Ireland Italy Jamaica Japan Jordan Kazakhstan Korea (South) Kosovo Kyrgyzstan Latvia Liberia Lithuania Luxembourg Macedonia Mexico Moldova Mongolia Montenegro Morocco Netherlands Norway Oman Pakistan Panama Paraguay Philippines Poland Romania Serbia Senegal Singapore Slovak Rep. Slovenia Spain Sri Lanka Suriname Sweden Switzerland Thailand Togo Tunisia Turkey Ukraine Yugoslavia United Kingdom Trinidad & Tobago Investment Requirement The investor must make a commitment of funds that represents an actual and active investment. The funds must be “at risk”, meaning that the investment could potentially yield partial or total loss if the investment is unsuccessful. Additionally, if the investment includes funds from a loan, the loan must be secured only by the investor’s unsecured personal assets or unsecured business capital, indicating that the investor must be personally liable if the business fails. The underlying investment must represent a real operating business or enterprise, capable of producing a service or commodity. The investment must be substantial, taking into account only those financial transactions in which the investor's own resources are at risk. The regulations do not specify the amount of money to be considered “substantial,” but they do specify that the investment should relate to the capital required to start the business. There is no limit on the duration of stay for foreign nationals maintaining E-2 treaty investor status. The visa is issued for periods of time which are dependent upon the reciprocity schedule. As long as the company and the foreign national continue to qualify under the treaty trader visa provision and the foreign national is maintaining his/her status, he/she may remain in the U.S. for an indefinite period of time. Nevertheless, E-2 visas are temporary visas, and the treaty investor must intend to depart the U.S. when his/her status terminates. EB-5 Immigrant Visa (IV) In addition to the creation of the EB-1 categories, The Immigration Act of 1990 created a new category of employment-based permanent visas for employment creation (“EB-5”). The category allows for the issuance of permanent visas to qualified foreign nationals who will contribute to the economic growth of the U.S. by investing in U.S. businesses (“new commercial enterprises”) and creating 10 full time jobs. 28 http://travel.state.gov/visa/frvi/reciprocity/reciprocity_3726.html#

The qualifying investment amount has been set at $1 million throughout the U.S. However, if the investment is made in a “targeted employment area” (rural or area of high unemployment), or with a USCIS approved Regional Center, the qualifying amount has been set at $500,000. Multiple investors may qualify for an investor visa by establishing just one new commercial enterprise. The regulations require each investor in the pool to have invested the required capital amount (dependent on the area of investment), and each individual investment must create at least 10 full-time jobs for qualifying employees. The regulations require that the petitioner invest personal funds that were legally obtained. To demonstrate that the capital was lawfully obtained, he/she must submit evidence such as tax returns, business records, bank statements, etc. Mere assertions about the petitioner's financial situation or work history, without supporting documentary evidence, are not sufficient to meet this requirement. The documentation submitted must contain information concerning the origination of the funds. However, the source of the funds does not have to originate abroad. To deter fraudulent applications for these visas, the regulations provide that this visa will be issued on a conditional basis for a two-year period. The conditional status will be removed by the USCIS after two years when it determines that the foreign national entrepreneur has met the investment requirements and has created the requisite jobs. Targeted Employment Area The regulations establish $1 million as the minimum capital to be invested in all areas of the United States, including high employment areas, however in targeted employment areas, the minimum investment has been lowered to $500,000. A targeted employment area is defined as “an area which, at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 percent of the national average rate”.29 The final regulations define a “rural” area to be “any area not within either a metropolitan statistical area (as designated by the Office of Management and Budget) or within either the outer boundary of any city or town having a population of 20,000 or more”.30 Metropolitan and micropolitan statistical areas are defined by the U.S. Office of Management and Budget (OMB) and are the result of the application of published standards to Census Bureau data. 31 Regional Centers A Regional Center is defined as any economic unit, public or private, which is involved with the promotion of economic growth, improved regional productivity, job creation, and increased domestic capital investment. Investments in Regional Centers are at the $500,000 level. Currently approximately 80 Regional Centers have been approved by USCIS.

29 Id. 30 Id. 31 http://www.whitehouse.gov/omb/assets/omb/bulletins/fy2009/09-01.pdf.

One of the main advantages of a Regional Center is that the investment has been pre-approved by USCIS with respect to the qualifying amount of the investment and with respect to the job creation requirement.32 As a result, for purposes of approval of the I-526 investor petition, the remaining issues are tracing the funds from the investor to the regional center and proving the lawful source of the investor’s funds. Hopefully the above explanations of immigrant and nonimmigrant visas will assist the non-immigration practitioner in identifying the core immigration related issues when assisting foreign nationals with business transactions involving investments or employment. Short and long term strategic planning for the business and the foreign national will pay dividends in successfully meeting the client’s immigrant and business needs. Richard A. Gump, Jr. is the shareholder of the Law Offices of Richard A. Gump, Jr. (www.rickgump.com) Mr. Gump graduated from the University of Texas, School of Law, and has been practicing business and employment-related immigration law for more than 37 years. He is a member of AILA, past chair of the AILA Texas Chapter and Compliance Audit Standards Committee, past chair of the AILA Texas Service Center Liaison Committee, and is a planning committee member of University of Texas’ Immigration and Nationality Law Conference. Mr. Gump has been named in Texas Lawyer’s “Go to Guide” for outstanding immigration law attorneys, and since 2003 has been recommended by Super Lawyers in the field of immigration law. He also has been recognized in the International Who's Who of Business Lawyers and Chambers USA: America's Leading Lawyers for Business. He has also been selected by his peers to be included in the 2010 edition of The Best Lawyers in America in the specialty of Immigration Law and is one of a distinguished group of attorneys who have now been listed in Best Lawyers for ten years. Mr. Gump handled the first employer sanctions case filed in the southwestern United States under the Immigration Reform and Control Act of 1986, and was co-counsel in one of the largest civil/criminal settlements in worksite compliance history. Matthew D. Gross is an attorney with the Law Offices of Richard A. Gump, Jr. (www.rickgump.com). Mr. Gross earned a Bachelor’s degree in Government from the University of Texas at Austin and graduated from South Texas College of Law in 2008. Mr. Gross has focused his practice on employment and business related immigration including worksite enforcement. He is a member of the American Immigration Lawyers Association (AILA) and is licensed in the State of Texas.

32 8 C.F.R. § 204.6(m)

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