Does Immigration Law Make You Want to Stick Your Head Through a Wall?


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

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Does Immigration Law Make You Want to Stick Your Head Through a Wall?

  1. 1. Does Immigration Law MakeYou Want to Stick Your HeadThrough a Wall?A webinar by Jon Velie
  2. 2. Sponsored by:
  3. 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 growingJon 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
  4. 4. AgendaWHAT YOU’LL LEARN Overview of temporary and permanent business visas, includes: ◦ Process ◦ Applicability ◦ Issues and strategies ◦ Questions and Answers
  5. 5. Fact PatternHilary Human Resource Manager works for a UScompany which is owned by a European ParentCompany with numerous branches worldwide. Parentcompany buys a Canadian company.Victor VP tells Hillary that the Company wants todissolve the Canadian operation but retain employeeswho will be paid through Hillary’s office and betasked with coming into the US to perform servicesfor extended periods of time.
  6. 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. 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. 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. 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. 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. 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. 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. 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. 14. O-1 Visa Extraordinary AbilityELIGIBILITY:An international beneficiary who possesses extraordinaryability in the arts, sciences, business, education, or athleticsmay enter the United States to perform for a U.S. employertemporary services relating to an event or events. Thepetitioner must demonstrate extraordinary ability throughsustained or international acclaim. The O-2 visa is alsooffered to those who assist or accompany the petitioner, andtheir family members, O-3. The employer of theextraordinary ability individual must petition for the O-1 visaon behalf of the Beneficiary.
  15. 15. O-1 Visa Extraordinary AbilityINTERNATIONALLY RECOGNIZED Evidence of : Internationally or nationally recognized prizes or awards; Published material about the aliens 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. 16. EB-1 Visa Extraordinary Ability Green CardEXTRAORDINARY ABILITY: The petitioner must show thathe/she has reached a level of expertise indicating that theindividual is one of a small percentage who have risen to thevery top of the field of endeavor.SUSTAINED INTERNATIONAL ACCLAIM FORACHIEVEMENTS: The petitioner must show evidence ofachievement through receipt of an internationally recognizedaward, or at least three of the following:
  17. 17.  receipt of lesser nationally, or  evidence of the aliens 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 aliens 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 aliens work; services, in relation to others in the evidence of the aliens 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 aliens original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;
  18. 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. 19. H1-B Specialty Occupation ProfessionalELIGIBILITY:An international beneficiary who is offered a skilled specialtyoccupation by a U.S. Employer who qualifies as aprofessional worker may enter the U.S. temporarily to acceptemployment within his or her profession.
  20. 20. H1-B Specialty Occupation ProfessionalAPPLICABILITY: Professional positions. Managers, accountants, lawyers, IT workers, marketingpersonnel or similar positions. In plain language this is typically for college grads in jobsthat require degrees. Exception for those with work that equals degreeequivalency
  21. 21. H1-B Specialty Occupation ProfessionalCRITERIA: 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. 22. H1-B Specialty Occupation ProfessionalDURATION: Three years, with the same employer in substantially thesame professional occupation as long as the underlyingbusiness on which the visa is based remains a viable tradingentity.The visa can be renewed for 3 more years.Can extend beyond 6 years if Labor Cert or I-140 forPermanent Residency is filed 365 days prior to expiration ofsixth year.
  23. 23. H1-B Specialty Occupation ProfessionalIssues: 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 againstcap.Can apply six months prior to start of fiscal year or April 1st.Chile and Singapore are not subject to H-1B cap undertreaty. Australia, Canada and Mexico have different but similar visasfor professionalsFashion models use H-1B visas.
  24. 24. Fact Pattern•Sarah, from Australia is in a positionthat requires a degree in marketing. Herdegree from Sydney University is inbusiness management. She took anumber of marketing and advertisingclasses while in college.
  25. 25. E-3 Visa Specialty Occupation ProfessionalE-3 is a treaty created version of the H-1B for professionalAustralians. E-3 is not subject to the same numerical limitation ofvisas per year. Spouses of E-3 can obtain work authorization. An E-3 visa is granted for up to two years. At the end ofeach two-year period, the Australian citizen may reapply foranother E-3 visa. At present, there is no maximumnumber of times that an Australian citizen may renew his or her E-3 visa
  26. 26. Processing Time New Issue 2010: Prevailing Wage Requests. No longerstate issue but Fed DOL determines. Sometimes 4-6 weeksfor determinations that took days last year.Once with USCIS, depending on the backlog at the USCISService center which receives your petition, the petitionshould take between 120 and 180 days to process.Expedited processing of 15 calendar days is available for anadditional fee. Not available for E-3.
  27. 27. Fact PatternSamir, a naturalized Canadian who wasborn in New Delhi, India is a databaseprogrammer with a computer engineeringdegree.
  28. 28. TN-1 Visa NAFTA WorkersELIGIBILITY:A Canadian or Mexican Citizen who seeks temporary entry asa professional may be admitted to the United States under theprovisions of Appendix 1603.D.1 of Chapter 16 of NAFTA on aTN visa.
  29. 29. TN-1 Visa NAFTA WorkersAPPLICABILITY:Similar applicability to the H-1B or E-3 except there is a list ofqualifying 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 aTN-1 visa.
  30. 30. TN-1 Visa NAFTA WorkersDURATION:Increased to increments of three years.PROCESSING TIME:A TN Visa must be petitioned for at a U.S. Port of Entry orAirport Inspector. The Canadian or Mexican Citizens mustpresent all necessary documentation on site. Approval ordenial is usually same day at site where petition was made.Practice Point: TN visas do not require prevailing wagerequests.
  31. 31. Fact Pattern Shirley is the niece of one of theExecutives of the company from England,she just graduated with a degree inBusiness Administration. She would like towork for the company, but has noexperience.
  32. 32. J-1 Visa Management Trainee or InternCRITERIA: Sufficient funds Educational or Employment Background English speaking ability Intent to leave the U.S. at end of stay
  33. 33. J-1 Visa Management TraineeDURATION:18 months maximumCHANGE OF STATUS:Changes of Status to other non-immigrant categories are notautomatically granted. The exchange visa holder must have aprivately funded J-1 Visa to be eligible to change statuswithout first obtaining a waiver from the two-year foreignresidency requirement.
  34. 34. J-1 Visa Management TraineePROCESSING TIME:These visas are issued by J-1 companies who have cangenerally do so in an average of 5 days. Consularprocessing can also take additional time, but most wereable to obtain in approximately 1-2 weeks.Practice Point: Not all nations treated equally, refer toskills list or you could be subject to 2 year homeresidency requirement.
  35. 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 totype of industry. USCIS have different interpretations. Determining whether to changestatus or consular process must examine this issue as well as particularconsulate’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. 36. E-1 and E-2 VisasTreaty Trader/Treaty Investor Remember Sven the owner? Why an E-2 instead of L-1?
  37. 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 issubmitted more than 365 days prior to expiration of thesixth year of an H-1b, the H-1b can be extended in one yearincrements until Green card is determined.
  38. 38. EB-1 Permanent Residency VisaExtraordinary 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