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Immigration Law 101(Series: Cross-Training for Business Lawyers 2020)

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A basic understanding of immigration law is critical to a vast array of businesses operating in today’s economy. Foreign employees and their sponsoring companies will navigate a complex maze in the attempt to achieve the desired goals of the employee maximizing their ability to provide services and value to the company. One of various determining factors as to which pathway to attempt is whether the goal is an immigrant visa (also known as a “green card”) which may ultimately allow lawful permanent residence in the United States or a non-immigrant visa. The need for foreign labor affects various industries and applies to large segments of skilled, unskilled and semi-skilled workers in jobs ranging from farm to seasonal to high-tech. This webinar explains what businesses need to know in the current environment as well as how political and globalization issues will affect immigration laws going forward.

To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/immigration-law-101-2020/

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Immigration Law 101(Series: Cross-Training for Business Lawyers 2020)

  1. 1. 1
  2. 2. 2 Practical and entertaining education for attorneys, accountants, business owners and executives, and investors.
  3. 3. 3 Thank You To Our Sponsors
  4. 4. Disclaimer The material in this webinar is for informational purposes only. It should not be considered legal, financial, or other professional advice. You should consult with an attorney or other appropriate professional to determine what may be best for your individual needs. While Financial Poise™ takes reasonable steps to ensure that information it publishes is accurate, Financial Poise™ makes no guaranty in this regard. 5
  5. 5. Meet the Faculty MODERATOR: Chris Cahill - L&G Law Group LLP PANELISTS: Maureen Murat - Crowdie Advisors, LLC Christina Coleman - RC Immigration Michael Schewe - Pecktar & Abramson 6
  6. 6. About This Webinar Immigration Law-101 A basic understanding of immigration law is critical to a vast array of businesses. Foreign employees and their sponsoring companies navigate a maze in maximizing the ability of foreign employees to provide value to the company. An immigrant visa (also known as a “green card”) may ultimately establish lawful permanent residence in the United States. Is securing a green card a better way forward than arranging a non-immigrant visa, in a given situation? Skilled and unskilled foreign labor are needed for various industries, from farm to seasonal to high-tech. This webinar explains what businesses need to know in the current environment as well as how political and globalization issues will affect immigration laws. 7
  7. 7. About This Series Cross-Training for Business Lawyers Looking to strengthen and condition your cross-disciplinary skills? And to develop your flexibility by familiarizing yourself with issues affecting many different kinds of businesses? This series delves into (i) the role of local land-use and zoning laws in property use and development; (ii) the use, types, and perceived benefits of employee stock ownership plans; (iii) the maze employers and employees must navigate in securing immigrant or non- immigrant visa status for workers; and (iv) the use of credit insurance by sellers to protect against non-payment of commercial debt. Each Financial Poise Webinar is delivered in Plain English, understandable to investors, business owners, and executives without much background in these areas, yet is of primary value to attorneys, accountants, and other seasoned professionals. Each episode brings you into engaging, sometimes humorous, conversations designed to entertain as it teaches. Each episode in the series is designed to be viewed independently of the other episodes so that participants will enhance their knowledge of this area whether they attend one, some, or all episodes. 8
  8. 8. Episodes in this Series #1: ESOPs-101 Premiere date: 4/2/20 #2: Immigration Law-101 Premiere date: 5/7/20 #3: Zoning & Land Use-101 Premiere date: TBD #4: Credit Insurance-101 Premiere date: TBD 9
  9. 9. Episode #2 Immigration Law-101 10
  10. 10. Two Kinds of Employment-Based Visas • Non-immigrant visas - Serve temporary employer needs - Are not a path to a green card - Require showing of non-immigrant intent - Upon the expiration date, the worker must return home • Immigrant Visas - Are a path to lawful permanent residency (or “green card”) and citizenship - Serve long-term (or permanent) employer needs - Imply a larger investment in the employee 11
  11. 11. H-1B Visas • Allows a foreign national to accept temporary professional assignment in U.S. in a “special occupation” - The position typically must require a bachelor’s degree, at minimum - The foreign national’s education must fit the position • Requires a Labor Condition Application (“LCA”) to be approved • Valid for up to 3 years - Can be renewed for an additional 3 years, followed by 1 year away - After that, can be renewed only under portability protections • Allows for dual intent (temporary presence plus intent to seek permanent status) 12
  12. 12. H-1B Visa (before 2020) • 85,000 H-1B Visas available annually (per fiscal year); 20,000 set aside for U.S. Master’s Degree or Higher - If cap is met within the first 5 days (it usually is), then USCIS runs lottery - More denials and more overrulings of denials during Trump administration: * Denials of new H-1B petitions for initial employment rose from 6 percent in FY 2015 to 21 percent in FY 2019 * Denials for petitions for continuing employment stood at 12 percent in FY 2019—up from just 3 percent in FY 2015 * USCIS overruled Service Center denials: 14 percent in FY 2018 and FY 2019, compared to only 3 percent from FY 2014 to FY 2017 13
  13. 13. H-1B (starting in 2020) In 2020, USCIS changed to a registration process for visa numbers available in FY 2021 (beginning Oct. 1, 2020), to lower burden on U.S. employers and the agency from requiring employers to submit H-1B petitions and supporting documentation pre-registration USCIS established the first registration period from 12 noon ET on March 1 through 12 noon ET on March 20, 2020, during which a U.S. employer must register electronically for each foreign national for whom the employer intends to file an H-1B petition [the registration includes less detail than an H-1B petition] * If USCIS receives more registrations than there are visa numbers available: lottery * U.S. employer has at least 90 days to file its H-1B petition * Roughly 275,000 registrations were submitted during the 2020 registration period 14
  14. 14. H2B - Visas • Allows citizens of certain named countries to accept temporary non-agricultural employment in the U.S. after the approval of employer’s temporary labor certification - Labor Cert. requires demonstration that there are insufficient willing and qualified and available U.S. workers top do the temporary work - The prospective employees must be nationals of H-2B-eleigible nation - Employing H-2B workers will not harm wages or working conditions of similar US workers - Need for workers is TEMPORARY (one-time occurrence or seasonal) May be professional, skilled or unskilled Most common: landscapers, laborers, hotel cleaners, housekeepers, cooks and construction workers 15
  15. 15. H2B - Visas • Annual quota of 66,000 H-2B visas • Valid up to 1 year (3 years only in rare situations) - Must remain outside U.S. for 3 months to become eligible again 16
  16. 16. H-3 Visas • Allows foreign nationals to receive training in the U.S., so long as: - The training is not available in the home country - The training will help in pursuit of a career outside of the U.S.; - The trainee’s job is not in the normal operations of the U.S. business. - Training may be in any field including but not limited to: agriculture, commerce, communications, finance, government, transportation, and other professions - 2 years total, no extensions or recapture - Training may be for special education of disabled children (max. 18 mos.) 17
  17. 17. L-1 Visas (Intra-company Transfers) • Allows for the intra-company transfer of employees of foreign entities to a U.S. affiliate • Executive or managerial (L-1A) - 3 initial years, then 2 extensions of 2 years for a total of 7 years • Specialized knowledge employees (L-1B) - 3 initial years, then 1 extension of 2 years for a total of 5 years Blanket L Petitions available to larger employers, allowing them to transfer eligible employees to the United States quickly and with short notice without having to file an individual petition with USCIS • Dual intent permitted 18
  18. 18. L-1 Visas (Intracompany Transfers) • Must have been continuously employed full-time by the company in an executive, managerial, or specialized knowledge capacity for at least 1 year in the preceding 3 years • NOTE: L-1A is an easier path to EB-1 green card L-Bs generally would need to go EB-3 route to green card 19
  19. 19. O-1 Visas • For foreign nationals who have demonstrated extraordinary ability in the sciences, education, business, athletics, arts, or motion picture/television industries to come to U.S. and work temporarily in their fields - Sustained national or international acclaim - A demonstrated record of extraordinary achievement (TV and film) • Valid up to 3 years with indefinite extensions; no quota • Can be used in the employment context - Better than an H-1B (path to EB-1, avoid cap, extend forever) • Must be coming to work in field of endeavor • Must be coming for an “event” (no freelancing), although employment can be the event. 20
  20. 20. O-1 Standard • Either: Evidence of one major, internationally recognized award, such as a Noble Prize, major league MVP, Oscar, Grammy; • Or: •Meet three of the ten regulatory factors: - A lesser award or national or international significance - Membership in a professional association that requires outstanding achievement - Published material in professional or major trade publications or major media regarding the individual’s work or achievements 21
  21. 21. O-1 Standard - Served as a judge of the work of others - Evidence of the individual’s original scientific, scholarly, or business-related contributions of major significance in the field - Evidence of authorship of scholarly articles in the field, professional journals or major media - Employed in a critical capacity for organizations or establishments that have a distinguished reputation - Command a high salary or other remuneration (different standard for arts, television and film) 22
  22. 22. P Visas • Generally for athletes and entertainment groups • P-1 allows foreign nationals who have earned international recognition to visit the U.S. temporarily in order to compete in an athletic event (e.g., the Olympics) or a performance (e.g., Burning Man -- ugh) • P-2 is for reciprocal exchange of entertainment groups • P-3 is for culturally unique performances (e.g., The HU) • Athletes can get an initial 5 years with one 5-year extension - Otherwise, it is the time necessary for the event or one year, whichever is less (with extensions for longer term events) • No annual limit or/quota • Dual intent not prohibited, but not expressly allowed (foreign residency requirement) 23
  23. 23. E-1 Treaty Traders • Allows a national of a treaty country [with which the US is a party to traty of trade or navigation]to be admitted solely to engage in international trade on his or her own behalf • Requirements: - Be a national of a treaty country; - Carry on substantial trade, which is:  The continuous flow of sizeable international trade items, involving numerous transactions over time; and  No minimum requirement for volume or monetary value, although higher value leads to greater substantial trade. - Carry on principal trade between the U.S. and the treaty country.  At least 50% of trade is between the treaty country and the U.S.
  24. 24. E-1 Treaty Traders • Nuances: * Must be an employee with either (i) executive or supervisory role or (ii) an employee with special qualifications * Initial stay of 2 years, with an indefinite number of 2-year extensions available * All E-1 non-immigrants, however, must maintain an intention to depart the United States when their status expires or is terminated
  25. 25. Visas for Members of a Certain Country • E-3 Visas - Essentially H-1B visas for Australian nationals only - Not expressly dual intent (but not expressly not dual intent) • H-1B1 - Special allotment (6,800) of H-1Bs for Chile and Singapore - Initially 1-year, but can be renewed indefinitely in 1-year increments • TN Visas - Essentially H-1B visas for Mexican and Canadian nationals  However, must be a business professional - Valid up to 3 years, and may (technically) be renewed indefinitely - Nonimmigrant intent and expressly no dual intent
  26. 26. Other Visas to be Aware of • B-1/-2 visas (business or pleasure, respectively) - Short trips, up to 6 months - Not a work visa, but limited employment-type activities are permitted - Visa Waiver Program • F-1 visas (student visas) • J-1 visas (“exchange visitors” to receive training or internships) - Non-immigrant intent, foreign degree or employment experience - 18 months for trainees and 12 months for interns - 2-year foreign residence requirement (for LPR, H or L status)
  27. 27. Employment-Based Immigration Visas (“Green Cards”) • EB-2/EB-3 [Labor Certification Applications (“Labor Cert” or “PERM”)] - Prevailing wage determination - Recruitment  Mandatory: 30-day job offer through SWA, print, Notice of Filing  Supplemental: job fair, on-campus, company website, trade journal, job search website, etc.  Quiet Period - Form 9089 to Department of Labor - Form I-140 to USCIS - Form I-485 to USCIS
  28. 28. Employment-Based Immigration Visas (“Green Cards”) • Visa Bulletins - Per Country Limitations - Preference system  EB-2 (advanced degree or 5+ years of progressive experience OR exceptional ability) v. EB-3 - Portability • Nuances - Hope to fail  Unqualified, unable or unwilling/unavailable - No tailoring - Audit file
  29. 29. EB-1 Visas • No requirement to test labor market (i.e., the Labor Cert process) • Forms: - Individuals with extraordinary ability  Similar to O-1 visa, but more stringent  “A level of expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor.”  Allows for self-petitioning
  30. 30. EB-1 Visas - Outstanding professors or researchers  “Recognized internationally as outstanding in a specific academic area”  No self-petitioning; must be accompanied by a job offer  Must have at least 3 years of experience teaching or researching - Multinational managers and executives  These are your L-1A visa holders  Not for L-1Bs
  31. 31. NIV Investment Visa Options • E-2 Treaty Investors - Nonimmigrant visa - Allows a national of a treaty country to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business. • Requires: - Be a national of a treaty country; - Have invested, or be in the process of investing, a substantial amount of capital in a bona fide investment enterprise; and
  32. 32. NIV Investment Visa Options • Substantial in relationship to the total cost of either purchasing an established enterprise or starting a new one • Sufficient to ensure the investor’s commitment to the successful operation of the enterprise; and/or • Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.
  33. 33. NIV Investment Visa Options - Be seeking to enter the U.S. solely to develop and direct the investment.  50% ownership control OR possession of operational control through managerial position or other corporate device. • Nuances: - The business must be owned at least 50% by persons with the treaty countries nationality - Assets committed and irrevocable - Must provide more than just making you a living; must have significant economic impact in the U.S. - Also available to non-investing employees if certain conditions are met.
  34. 34. IV Investment Visa Options • EB-5 - Immigrant visa (“green card”) - Used frequently in the real estate investment context • Investment + job creation = green card - Make the necessary investment in a commercial enterprise in the U.S.; and - Plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.
  35. 35. IV Investment Visa Options • Monetary thresholds: - $500,000 in targeted employment areas (“TEAs”)’ or  Rural Area: locations are both outside of Metropolitan Statistical Areas (“MSAs”) AND outside of towns of 20,000 persons.  High Unemployment Areas: areas where local unemployment is at least 150% of the national average - $1,000,000 elsewhere.
  36. 36. IV Investment Visa Options • Kinds of Investment - Direct Investment: invest directly in a new enterprise - Regional Center investment: give money to an approved regional center for investment • Job Creation “Exception” - Non-Regional Center Cases: must show job creation for actual persons (I-9s, W-2s, etc.) - Regional Center Cases: can show the creation of jobs for theoretical persons (use economic multipliers (“models”) or other “reasonable methodologies”
  37. 37. IV Investment Visa Options • 2-Step Process - Like marriage green cards, the initial green card is conditional for 2 years. - After 2 years, must request “removal of conditions” by showing that you fulfilled your promise of investment, job creation, etc. • Team Effort - Immigration attorney runs point; assures that investment is structured to fit within EB-5 - Joined by entrepreneurs to run the project, corporate/securities counsel to assure compliance, economists, business plan drafters, migration agents, and others
  38. 38. National Interest Waivers • Allows certain individuals to enter the EB-2 preference category if it is in the interest of the United States. - Not defined by statute; exceptional ability OR whose employment in the United States would greatly benefit the nation. • Three-Prong Test (Dhanasar v. NYSDOT): - The foreign national’s proposed endeavor has both substantial merit and national importance; - The foreign national is well-positioned to advance the proposed endeavor; and - On balance, it would be beneficial to the United States to waive the requirements of a job offer and, thus, the labor certification requirement
  39. 39. National Interest Waivers • Factors to consider in determining what is in the “national interest:” - Whether the American economy will benefit from the individual’s admission - Whether the alien will help improve health care - Whether a U.S. government agency has specifically requested that the individual be admitted - Whether the individual’s admission will improve training and educational programs benefiting U.S. under-qualified workers and children - Whether the individual’s admission will help create more affordable housing solutions for the poor, elderly, or children - Whether the individual’s admission will improve the environment and lead to better usage of natural resources - Whether the individual’s admission will improve the working conditions and wages of U.S. workers
  40. 40. Physician NIW Petitions • On November 12, 1999, President Clinton approved enactment of the Nursing Relief for Disadvantaged Areas Act (“Nursing Relief Act”). • Special rule for NIW physicians: - Agree to work full-time for a 5-year period; - Work in one of the enumerated specialties (family/general medicine, pediatrics, general internal medicine, obstetrics/gynecology and psychiatry); - Serve in an underserved area; and - Obtain a determination from a federal agency or a state department of health that has knowledge of the physician’s qualifications, stating that his/her work is in the public interest. • Special rule
  41. 41. About the Faculty 42
  42. 42. About The Faculty Chris Cahill - ccahill@lgcounsel.com Mr. Cahill is Head of the Bankruptcy and Restructuring Practice Group at L&G Law Group LLP, in Chicago, Illinois. He guides secured lenders, creditors, debtors, creditors’ committees, potential purchasers, and others through bankruptcy cases, out-of-court workouts, assignments for the benefit of creditors, and receiverships. Mr. Cahill also publishes and speaks frequently on commercial insolvency issues. He as been, since 2014, an executive editor of Commercial Bankruptcy Litigation, 2d Edition (Jonathan P. Friedland, Elizabeth Vandesteeg & Christopher M. Cahill eds., 2020), a comprehensive and annually updated treatise published by Thomson Reuters. 43
  43. 43. About The Faculty Maureen Murat - maureen@crowdieadvisors.com Maureen L. Murat is an attorney and is principal of Crowdie Advisors, LLC, a business consulting firm dedicated to helping local and foreign entrepreneurs and small businesses form business entities, transact business (strategy, planning and problem-solving), and obtain financing via equity crowdfunding and other alternative financing methods. Maureen is an Adjunct Professor at the University of New Hampshire School of Law, where she teaches Tokenomics and Cryptocurrency Regulations and Smart Cities: Blockchain, Law and Government. Maureen is a partner with Axes and Eggs, a blockchain think tank and digital advisory firm that focuses on blockchain consulting, education courses for executives and digital advisory services. Maureen also serves as Of Counsel to Cogent Law Group, a law firm dedicated to helping clients meet their business objectives. Her practice focuses on corporate matters, cryptocurrency regulation compliance, securities and general tax matters. Find more information about Maureen on LinkedIn: https://www.linkedin.com/in/maureen-l-murat-esq/. 44
  44. 44. About The Faculty Christina Coleman - ccoleman@rcimmigrationgroup.com Christina is the founder and owner of RC Immigration, a boutique law firm focusing exclusively on U.S. immigration issues. RC Immigration works with corporate decision-makers and HR professionals at all levels and across a range of industries to address their immigration needs. Christina also represents foreign investors, with particular emphasis on assisting European interests in the United States through the E-1 and E-2 visa process. In addition, she guides individuals and their families in obtaining visas, permanent resident status, and citizenship. An immigrant herself, Christina understands the importance of delivering personalized, responsive counsel to her clients. Previously, she practiced as a litigator at Sidley Austin, where she defended clients in complex federal and state litigation, including multi-district litigation. Christina earned her J.D. at Loyola University of Chicago Law School, where she graduated magna cum laude. In addition, she holds a Master of Philosophy Degree in Medieval Studies from Yale University, a Master of Arts Degree in English Literature from McGill University, and a Bachelor of Arts Degree in French and English Literature from Dalhousie University. She has significant experience working with students, and has served an Adjunct Faculty member at the DePaul College of Law. Originally from Canada, Christina originally came to the U.S. in F-1 student status, and naturalized in 2006. 45
  45. 45. About The Faculty Michael Schewe - MSchewe@pecklaw.com As a member of Peckar & Abramson’s Labor & Employment Law Group, Mr. Schewe practices all aspects of immigration law, from corporate-business immigration and compliance to consular processing and removal defense. He regularly assists corporations ranging from multi-nationals to U.S.-based businesses with bringing talent to the United States. In this regard, Mr. Schewe regularly files for H-1B, TN, O, L, E and other nonimmigrant, employment-based visas as well as green card applications (i.e., EB-1, EB-2, PERM EB-3) on behalf of the employers and individuals he represents. In addition, he regularly counsels individuals on issues relating to asylum, cancellation of removal, nonimmigrant visas, family-based immigrant visas, and naturalization, among other topics. Given the intricacies and regulatory requirements surrounding immigration compliance, Mr. Schewe also provides employers with I-9 training sessions, internal self-audits, and representation in the event of government audits. Mr. Schewe practices immigration law in all 50 states, and has clients in various countries around the globe. He graduated from Marist College in 2006 and Seton Hall University School of Law in 2009. He holds an Honorary Degree from Peking University in Beijing, China. Mr. Schewe was selected for inclusion in the 2015-2020 editions of New Jersey Super Lawyers - Rising Stars. 46
  46. 46. Questions or Comments? If you have any questions about this webinar that you did not get to ask during the live premiere, or if you are watching this webinar On Demand, please do not hesitate to email us at info@financialpoise.com with any questions or comments you may have. Please include the name of the webinar in your email and we will do our best to provide a timely response. IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education. 47
  47. 47. About Financial Poise 48 Financial Poise™ has one mission: to provide reliable plain English business, financial, and legal education to individual investors, entrepreneurs, business owners and executives. Visit us at www.financialpoise.com Our free weekly newsletter, Financial Poise Weekly, updates you on new articles published on our website and Upcoming Webinars you may be interested in. To join our email list, please visit: https://www.financialpoise.com/subscribe/

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