Does Immigration Law Make You Want to Stick Your Head Through a Wall? You will learn: Overview of temporary and permanent business visas, includes: Process Applicability Issues and Strategies

1. Does Immigration Law Make
You Want to Stick Your Head
Through a Wall?
A webinar by Jon Velie

2. Sponsored by:

3. Introductions
Heather Bansemer, Marketing Manager– Ascentis
 Ascentis offers easy-to-use workforce management HRIS,
online payroll, recruiting, self service and timekeeping
solutions that support greater business efficiency and
accuracy
 Almost 30 years in business; 1,500 customers and growing
Jon Velie, Immigration Attorney – Velie Law Firm
 Winner of the American Bar Association Louis M. Brown Legal
Access to Justice Award
 International speaker on Immigration
 Editor of www.ImmigrationMagazine.com

4. Agenda
WHAT YOU’LL LEARN
 Overview of temporary and permanent business visas,
includes:
◦ Process
◦ Applicability
◦ Issues and strategies
◦ Questions and Answers

5. Fact Pattern
Hilary
Human Resource Manager works for a US
company which is owned by a European Parent
Company with numerous branches worldwide. Parent
company buys a Canadian company.
Victor VP tells Hillary that the Company wants to
dissolve the Canadian operation but retain employees
who will be paid through Hillary’s office and be
tasked with coming into the US to perform services
for extended periods of time.

6. L-1 Visa International Transferee
 For companies that have offices in US and
another nation.
 L-1A for Executives and Managers
 Managers can be manage people or functions
 Must have nexus between companies, either
subsidiary or affiliate
 Can be used to establish US entity
 L-1B Specialized Employees. Must have acquired
skills particular to the company.
 Must have worked one of the last three years for
international office.
 Practice pointer: Seven year total. Can not
extend during GC like H-1b

7. Fact Pattern
 Sven is the Owner and Managing Director of the
European parent company. He has invested over
a million dollars personally into establishing the
US entity two years ago. He is very proud that
the US operations has grown to over 30
employees, 17 are US citizens.

8. Fact Pattern
 Bob is the President of the Canadian company
since its inception six years ago. Today he is in
charge of developing strategies for a department
of the company that provides tech goods and
services. He does not have employees under his
charge but works with the sales team,
production and marketing departments. He will
stay in Canada but make frequent trips to the US
for meeting with clients and work with various
Company departments.

9. Fact Pattern
 Joe is Vice-President of the Canadian
company, the US company wants him to
be transferred to its Philadelphia Office to
take the position of Chief Technical
Officer.

10. Fact Pattern
 Cindy has worked for the parent company
in Canada as regional manager over all
sales. She has been having trouble
travelling into the US lately, being hassled
by Border Officials.

11. Fact Pattern
 Jerry is the operator of the Canadian
company’s proprietary process that
produces a high tech product that the US
company wants to distribute to its
customers. Jerry does not have a degree,
does not manage anyone, he is just one of
the few guys who can make the
companies products.

12. EB-1 Permanent Residency Visa-
Green card
 The Multi-National Executives and Managers.
 Similar to the L-1, Some executives and managers of
companies with offices in both US and abroad can
petition for permanent residence for these workers.
 Must have worked for the office overseas for one full
year within last three years and US office must have
been in existence for at least a year.
 Must have Corporate Petitioner but no labor
certification.
 Applications: Moving talent around world and great
option for execs, investors or business owners who
want to make US existence part of long term goals.

13. Fact Pattern
 Elizabeth was hired as VP of Business
Development. She developed a strategy that
grew the revenues of the Canadian company
from a start up to $100 Million in annual sales.
She won an award by a Canadian industry
association, has been subject to articles in major
business magazines, has authored white papers
and given presentations at industry conferences,
she sits on a panel which selects Canada’s
Woman of the Year.

14. O-1 Visa
Extraordinary Ability
ELIGIBILITY:
An international beneficiary who possesses extraordinary
ability in the arts, sciences, business, education, or athletics
may enter the United States to perform for a U.S. employer
temporary services relating to an event or events. The
petitioner must demonstrate extraordinary ability through
sustained or international acclaim. The O-2 visa is also
offered to those who assist or accompany the petitioner, and
their family members, O-3. The employer of the
extraordinary ability individual must petition for the O-1 visa
on behalf of the Beneficiary.

15. O-1 Visa
Extraordinary Ability
INTERNATIONALLY RECOGNIZED
 Evidence of :
 Internationally or nationally recognized prizes or awards;
 Published material about the alien's work;
 Membership with an association that requires members to have
outstanding achievement;
 Major contributions in the field of science, business, or
scholastics;
 Articles published in any type of major media or professional
journals;
 High salary or any other type of compensation commanded by
the alien;
 Participation on a panel, or as a judge for other peoples works;
 Evidence of past employment for organizations or establishments
that have a high reputation.

16. EB-1 Visa
Extraordinary Ability Green Card
EXTRAORDINARY ABILITY: The petitioner must show that
he/she has reached a level of expertise indicating that the
individual is one of a small percentage who have risen to the
very top of the field of endeavor.
SUSTAINED INTERNATIONAL ACCLAIM FOR
ACHIEVEMENTS: The petitioner must show evidence of
achievement through receipt of an internationally recognized
award, or at least three of the following:

17.  receipt of lesser nationally, or  evidence of the alien's authorship of
internationally-recognized prizes or scholarly articles in the field, in
awards for excellence in the field of professional or major trade
endeavor; publications or other major media;
 membership in associations in the field  evidence of the display of the alien's
for which classification is sought, work in the field at artistic exhibitions
which require outstanding or showcases;
achievements of their members, as  evidence that the alien has performed
judged by recognized national or in a leading or critical role for
international experts in their organizations or establishments that
disciplines or fields; have a distinguished reputation;
 published material about the alien in  evidence that the alien has
professional or other major trade commanded a high salary or other
publications or major media, relating significantly high remuneration for
to the alien's work; services, in relation to others in the
 evidence of the alien's participation, field; or
either individually or on a panel, as a  evidence of commercial successes in
judge of the work of others in the the performing arts, as shown by box
same or an allied field of office receipts or record, cassette,
specialization; compact disk, or video sales.
 evidence of the alien's original
scientific, scholarly, artistic, athletic,
or business-related contributions of
major significance in the field;

18. Fact Pattern
 Raxit, a citizen of India, received his
Master’s Degree in Computer Engineering
from the University of British Columbia
has numerous skills in IT. Raxit has been
with the Canadian company for six
months.

19. H1-B Specialty Occupation
Professional
ELIGIBILITY:
An international beneficiary who is offered a skilled specialty
occupation by a U.S. Employer who qualifies as a
professional worker may enter the U.S. temporarily to accept
employment within his or her profession.

20. H1-B Specialty Occupation
Professional
APPLICABILITY:
 Professional positions.
 Managers, accountants, lawyers, IT workers, marketing
personnel or similar positions.
 In plain language this is typically for college grads in jobs
that require degrees.
 Exception for those with work that equals degree
equivalency

21. H1-B Specialty Occupation
Professional
CRITERIA:
 U.S. Company is offering employment
 Minimum Prevailing Wage for county and state at site of
employment – Determined by DOL
 "Specialty Occupation”
 Labor Condition Application
 Must be professionally qualified
 A four-year Degree or equivalent
 Special category for Chileans
 Similar E-3 is available for Australians

22. H1-B Specialty Occupation
Professional
DURATION:
 Three years, with the same employer in substantially the
same professional occupation as long as the underlying
business on which the visa is based remains a viable trading
entity.
The visa can be renewed for 3 more years.
Can extend beyond 6 years if Labor Cert or I-140 for
Permanent Residency is filed 365 days prior to expiration of
sixth year.

23. H1-B Specialty Occupation
Professional
Issues:
 Subject to numerical cap of 65,000 per year for regular H-
1B and 20,000 Master Degree from US universities
 October 1st is the start of the fiscal year for counting against
cap.
Can apply six months prior to start of fiscal year or April 1st.
Chile and Singapore are not subject to H-1B cap under
treaty.
 Australia, Canada and Mexico have different but similar visas
for professionals
Fashion models use H-1B visas.

24. Fact Pattern
•Sarah, from Australia is in a position
that requires a degree in marketing. Her
degree from Sydney University is in
business management. She took a
number of marketing and advertising
classes while in college.

25. E-3 Visa Specialty Occupation
Professional
E-3 is a treaty created version of the H-1B for professional
Australians.
 E-3 is not subject to the same numerical limitation of
visas per year.
 Spouses of E-3 can obtain work authorization.
 An E-3 visa is granted for up to two years. At the end of
each two-year period, the Australian citizen may reapply for
another E-3 visa. At present, there is no maximum
number of times that an Australian citizen may renew
his or her E-3 visa

26. Processing Time
 New Issue 2010: Prevailing Wage Requests. No longer
state issue but Fed DOL determines. Sometimes 4-6 weeks
for determinations that took days last year.
Once with USCIS, depending on the backlog at the USCIS
Service center which receives your petition, the petition
should take between 120 and 180 days to process.
Expedited processing of 15 calendar days is available for an
additional fee.
 Not available for E-3.

27. Fact Pattern
Samir, a naturalized Canadian who was
born in New Delhi, India is a database
programmer with a computer engineering
degree.

28. TN-1 Visa NAFTA Workers
ELIGIBILITY:
A Canadian or Mexican Citizen who seeks temporary entry as
a professional may be admitted to the United States under the
provisions of Appendix 1603.D.1 of Chapter 16 of NAFTA on a
TN visa.

29. TN-1 Visa NAFTA Workers
APPLICABILITY:
Similar applicability to the H-1B or E-3 except there is a list of
qualifying jobs. Those that may have applicability are :
Accountant, Computer Systems Analyst, Graphic Designer,
Hotel Manager, Lawyer, Management Consultant.
Consult the list or TN jobs before attempting to apply for a
TN-1 visa.

30. TN-1 Visa NAFTA Workers
DURATION:
Increased to increments of three years.
PROCESSING TIME:
A TN Visa must be petitioned for at a U.S. Port of Entry or
Airport Inspector. The Canadian or Mexican Citizens must
present all necessary documentation on site. Approval or
denial is usually same day at site where petition was made.
Practice Point: TN visas do not require prevailing wage
requests.

31. Fact Pattern
 Shirley is the niece of one of the
Executives of the company from England,
she just graduated with a degree in
Business Administration. She would like to
work for the company, but has no
experience.

32. J-1 Visa Management Trainee or
Intern
CRITERIA:
 Sufficient funds
 Educational or Employment Background
 English speaking ability
 Intent to leave the U.S. at end of stay

33. J-1 Visa Management Trainee
DURATION:
18 months maximum
CHANGE OF STATUS:
Changes of Status to other non-immigrant categories are not
automatically granted. The exchange visa holder must have a
privately funded J-1 Visa to be eligible to change status
without first obtaining a waiver from the two-year foreign
residency requirement.

34. J-1 Visa Management Trainee
PROCESSING TIME:
These visas are issued by J-1 companies who have can
generally do so in an average of 5 days. Consular
processing can also take additional time, but most were
able to obtain in approximately 1-2 weeks.
Practice Point: Not all nations treated equally, refer to
skills list or you could be subject to 2 year home
residency requirement.

35. E-1 and E-2 Visas
Treaty Trader/Treaty Investor
 Applicable to nationals of certain countries.
 Can be used to start US company
 No specific amount of investment needed, but must be reasonable to
type of industry.
 USCIS have different interpretations. Determining whether to change
status or consular process must examine this issue as well as particular
consulate’s process.
 Can use loans for investment.
 Must have other investments.
 Can’t create company just to create job.
 Can be extended as long as company is viable
 Alternative if cannot meet L-1 or EB-5.

36. E-1 and E-2 Visas
Treaty Trader/Treaty Investor
Remember Sven the owner?
Why an E-2 instead of L-1?

37. Adjusting to Permanent Residence
(Green card)
The process of moving from a temporary to permanent visa.
Can be filed with EB-1 green card petitions but not with EB-
2 and EB-3.
Practice Point:
If a labor certification or permanent residency visa is
submitted more than 365 days prior to expiration of the
sixth year of an H-1b, the H-1b can be extended in one year
increments until Green card is determined.

38. EB-1 Permanent Residency Visa
Extraordinary Ability.
The Multi-National Executive.
Outstanding Professor or Researcher.
Must be recognized internationally outstanding academic
achievements in their particular field. Must have at
least three years experience in teaching or
research. In Universities must have a tenure track
or comparable research position.
Practice point:
Use experts and documentation to support positions.
Must have Petitioner but no labor certification