F1: OPT (OPTIONAL PRACTICAL TRAINING): 12 MONTHS AFTER GRADUATION
Initially issued for 3 years; 6 years max. (except when employer sponsors individual for green card, 1 yr. prior to expiration – can extend until visa becomes available) OR you leave the country for a full year and then apply for an H-1b again – you get 6 years again. (can start filing 6 months before April 1 st - sometimes they run out in one day)
THINK OF WHAT A LARGER COMPANY MIGHT HAVE AND NOT SOMETHING RUNNING OUT OF A HOME OFFICE OR GARAGE.
Immigration Basics For Startups
IMMIGRATION OPTIONS FOR STARTUP COMPANIES www.rroyselaw.com
BASIC TERMINOLOGY NON-IMMIGRANT – temporary purpose IMMIGRANT – live in the U.S. permanently NON-IMMIGRANT INTENT – important at border LAWFUL PERMANENT RESIDENT – GC holder NON-IMMIGRANT VISA – obtained abroad ARRIVAL/DEPARTURE CARD I-94 – status
Specific issues for startups Dueto newness of company hard to file/sponsor employees for visas because the company generally doesn’t have Quarterly statements Proven revenue Track record Public records Information on the web
F-1: STUDENT VISA 2 ways to work:1. OPT (Optional Practical Training) 12 months – usually post completion (if used while in school (summers, holidays) time is deducted. Must be related to your degree program No more than 90 days of unemployment Must report to school where you are working (can be self employed but must be in your field) Only Extension available: STEM (Science, Technology, Engineering, Math) graduate: 1) just graduated and 2) have a job in STEM filed and 3) employer is enrolled in E-verify = can extend for 17 months Helpful for entrepreneurs with their own business H-1B cap met for fiscal year Salary not required, can work for equity
F-1 Visa 2. Curriculum Practical Training -Internship program -Must be part of the curriculum -Has to be approved by the school (Form I-20) -If you work for 1 yr. (365 days) full time you forfeit OPT or 2 years part-time
H-1B: SPECIALTY OCCUPATIONS Most common work authorized non-immigrant visa Available for workers in specialty occupations Position Requires a BA or higher in a specific field, or a BA equivalent (i.e. work experience) The Foreign national has the required BA or work experience in the particular field. (i.e. software engineer needs a degree in engineering or EE but not English) Dual intent visa Initially issued for 3 years; 6 years max. (few exceptions) Exception is VERY helpful to those nationals of China/India where it can take up to 10yrs. H-1B employee can port from one employer to another (begin as soon as filed- NOT RECOMMENDED) Annual cap of 65,000 every fiscal year which begins Oct. 1, but can file in April. 20K additional allocated for US graduates holding MA or higher
CAP GAP: Switching from F-1 to H-1B Due to H-1B annual quota there is usually a limited filing season (usually first few weeks of April) Approved H-1B employee can’t begin work until the start of the Fiscal Year, October 1st. Generally students are given 12 months of OPT (usually expires in June) – leaving the foreign national out of status if they don’t return home = GAP between when status expires and when they can work Regulations fixed this problem: As long as H-1B is filed before the expiration of OPT – work authorization and status is extended till the end of the Fiscal year.
H-1B Cap Exempt If you had an H-1B in the past 6 years Universities Research organizations Non-Profit organizations Affiliated with research organization or university If you can get a Cap Exempt H-1B, you can get an H-1B with a company that is Cap subject Get a job at a university for a few hours a week and then get a job with a private company (but try to get the private company to also sponsor you for a cap subject H-1B)
H-1B Challenges for startups Size of company Funding issues (prevailing wage must be paid) Manager/executive positions harder to obtain (educational issues/ and need) Consider: Why would a small company need that? (director of marketing) Relatively expensive ($325 to file, $500 fraud fee, $750/$1500 ACWIA fee, $1225 Premium processing) – recommend employer pays all fees Time Sensitive: Must meet qualifications at time of filing possible to get letter from university stating all requirements for the degree have been completed but it can’t be conferred until June.
H-1B challenges Employer Restrictions: Must pay prevailing wage: can be high (entry level software engineer $75,000) Try to get a letter from a VC saying they will fund with a letter of intent May have contracts with clients to prove income Restrictions of off site placements Record keeping requirement No spousal work authorization Employer-Employee relationship: “control” – is there someone that is controlling the employee’s work? Try to prove that you don’t own 50% or more of the company If you own more than 50%: Convey the stock to a friend; or make sure you don’t have more than 50% of the voting rights; have a separate board of directors that handles the hiring/firing of employees Have an employment contract (even if owner) Sign NDA; Covenant not to compete
H-1B Pros: Can have several H-1B’s at one time Each employer must apply separately – and must prove all requirements If you have H-1B and have been counted against an annual cap – not subject to cap and Company B can sponsor you at anytime Dual intent- so you can travel and have a green card petition pending
CONCERNS FOR STARTUPS “FRAUD PROFILE” TARGETS SMALL AND NEWLY FORMED COMPANIES BEFORE FILING HAVE: A physical office space (a commercial lease is best) Money to pay salaries Comply with local ordinance (obtain a business license, taxes) Website Payroll records of employees (don’t just give equity) The Dun & Bradstreet data is used by USCIS to determine the legitimacy of company Try to get company on the Dun Bradstreet
E-2 TREATY INVESTOR Nationals of Countries that have a Treaty with the US (no treaty with Russia/China/India) Substantial Investment: no set amount If total cost to run your company is under $500,000 a significant investment would be 80-85% of total cost $ Must come from investor IP counts (need to get an objective valuation); equipment, property, etc… Majority of stock must be held by nationals of treaty country (USC and LPR’s don’t count) Important: VC funding/ co-ownership might reduce your shares below 50% You can work for a company where nationals of your country have done the investment and you are a key employee: (Executive/manager/essential employee) No employment requirement abroad Spouse can work
B-1 VISITOR Foreign national coming to the U.S. to conduct business activities Gainful employment NOT permitted Permissible business activities: Negotiating contracts, attend meetings, develop business relationships, attend conferences and seminars MUST intend to go back to home country Cannot receive salary from U.S. source Entrepreneurs can use this to: set up an office in the U.S., meet investors, look for office space, meet potential customers, open bank accounts, startup incubator/accelerator programs.
TN: CANADIAN/MEXICAN NATIONALS Professional activities (limited class of occupations) Less restrictive than H-1B on educational requirements No prevailing wage issues Can’t be self-employed (need a job offer from someone); Can’t be for a company where you have a substantial ownership interest Entry for 3 years at a time
L-1: MULTINATIONAL TRANSFEREE Foreign Company abroad Qualifying relationship with a company in the U.S. (Parent, branch, subsidiary, or affiliate) Must have worked abroad for the company for 1 full year (in the past 3 years) Manager, executive, or specialized skill employee L-1: 7 years max, L-B: 5 years, New office in U.S.: 1year Spouse can obtain work authorization Difficult for startups unless willing to work abroad for a year
GREEN CARD OPTIONS Family petition Married to USC/USC child – no backlog USC sibling/ LPR holder – backlog Political Asylum Religious Workers Investors (EB-5): $500,000 or $1 million and 10 U.S. jobs Employer Sponsor
EMPLOYER SPONSORED GREEN CARD Preference System: limited # per preference and by country China, India, Mexico, Philippines (serious backlogs) FYI: can take nationality of your spouse 1st: Extraordinary ability/ outstanding researchers and scientist/ multinational managers and executives 2nd: Requires an advanced degree (Masters or BA + 5 years experience) AND the job must require it. 3rd: all other workers (All countries have backlog)
VISA BULLETIN: OCTOBER 2012 All Chargeability CHI NA- Em ploymen P HI LI P P I NE Areas Except mainland I NDI A MEX I CO t- B ased S Those Listed born 1st C C C C C 2nd 01JAN12 15JUL07 01SEP04 01JAN12 01JAN12 3rd 22OCT06 08FEB06 15OCT02 22OCT06 01AUG06 Other 22OCT06 22JUN03 15OCT02 22OCT06 01AUG06 Workers 4th C C C C C Certain Religious U U U U U Workers 5th Targeted Employment Areas/ Regio C C C C C nal Centers 5th Pilot Programs U U U U U
U.S. EMPLOYER SPONSORPhase 1: Labor Certification PERM US employer Full time permanent position Prevailing wage Recruited, advertised, and tried to find US worker and couldn’t find one
PHASE 2: I-140 Visa Petition Prove that the company can pay the prevailing wage Must prove the Alien meets the requirements
PHASE 3: I-485 ADJUSTMENT OF STATUS You have an approved I-140 Visa is available (your turn in line is up): Visa Bulletin Medical Exam No Admissibility issues Need to show you are in legal status If fallen out of status, must consular process abroad.
4 categories to skip Labor Certification1. Extraordinary Ability: very top of your field in the world. Regulations list 10 examples, must meet at least 3 Sustained national/international acclaim2. Outstanding Researcher: Need to prove 2 out of 7 criteria Need to prove you are outstanding (impact in your field)3. National Interest Waiver: reserved for those doing work in the interest of the US No employer or labor certification needed 3 criteria Must be working in an area of substantial intrinsic value to the US The impact of the work is national in scope as opposed to local in scope You have already made an impact in your field that is greater than your peers when they balance the purpose of PERM versus what you bring, do you win?
SKIP LABOR CERTIFICATION4. Multinational Manager or Executive You worked outside the US for 1 year out of the last 3 years for a company the foreign company has a qualifying relationship with a Company in US: Parent-Child: one owns majority of other; Branch Affiliate: joint venture, one person owns majority of both
EMPLOYER SPONSORED GREEN CARD Don’thave to be sponsored for the job that you are in – employer can say they have the intention to put you in the position when you get the green card. Could be 4-5 years away. Usea company you don’t work for: You work for Company A; Company B can sponsor you (maybe you have a good friend) – at the end of the day, if intention changes, you get green card and they don’t have to hire you. EmployerMUST pay for the process. It’s expensive! Can’t be reimbursed under the table. Highly illegal!
QUESTIONS????? MOMAL IQBAL Miqbal@rroyselaw.com Office: (415) 421-9700 Direct: (213) 290-4529 www.rroyselaw.com Follow us on Facebook and Twitter!!