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CONFIDENTIAL 1Copyright © 2015 Berry Appleman & Leiden LLP
Immigration Challenges for
Start-ups and Emerging Businesses
#S...
CONFIDENTIAL
With You Today
Copyright © 2015 Berry Appleman & Leiden LLP 2
Delya Ghosh
Partner
BAL Erika Malzberg
CMO
EGFS
CONFIDENTIAL
Austin | Boston | Dallas | Geneva | Houston | London | McLean, Va. | Rio de Janeiro
San Francisco | São Paulo...
CONFIDENTIAL
Berry Appleman & Leiden
• Full-service, corporate immigration law firm, established in
1980
• 90+ attorneys, ...
CONFIDENTIAL
“Startups face a huge burden in today’s
economy, often having to choose
between funneling resources toward
cr...
CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 6
Today’s Agenda
• Immigration agencies and key concepts
• Common...
CONFIDENTIAL
• Department of Homeland Security
 U.S. Citizenship & Immigration Services (USCIS)
 U.S. Customs & Border P...
CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 8
Key Immigration Concepts
Non-Immigrant vs. Immigrant
What is th...
CONFIDENTIAL
• Coming to the United
States temporarily
• Retain residence
abroad (required for
certain categories)
• Dual ...
CONFIDENTIAL
• B-1/B-2 Business Visitor/Tourist
• E-1/E-2 Treaty Trader/Treaty Investor
• E-3 Australian
• F-1 Student
• H...
CONFIDENTIAL
• Professionals - Specialty occupation (degree in field
required)
• Not based upon shortage of U.S. workers
•...
CONFIDENTIAL
• For managers/executives (L-1A) or specialized
knowledge professionals (L-1B)
• Requires 1 year employment a...
CONFIDENTIAL
• Quota for new H-1B’s exhausted for 2015
• Increased scrutiny for businesses with less than 25
employees
• E...
CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 14
Immigrant Visas
CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 15
Immigrant Visas and
Permanent Residence:
You can take one of f...
CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 16
Employment Based (EB)
Preference Categories
Employment
Based
F...
CONFIDENTIAL
• EB-1 does not require labor certification
Extraordinary Ability
Outstanding Professor/Researcher
Multina...
CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 18
Permanent Residence Process
CONFIDENTIAL
• Typically first step of the green card process
• Electronic filing with Department of Labor
• Must describe...
CONFIDENTIAL
• File within 6 months of PERM approval
• Establishes employee’s qualifications for the
job
• Designates immi...
CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 21
Visa Delays
All green cards are the same, so why do
categories...
CONFIDENTIAL
• Priority date on Visa Bulletin must be current
to file form I-485
• Adjustment of Status (AOS) filed with U...
CONFIDENTIAL
• Ownership interest may impact eligibility
• Demonstration of Ability to Pay
• GC’s are location and positio...
CONFIDENTIAL
• When is a work visa required?
• Controlling interest can impact eligibility for
both non-immigrant/immigran...
CONFIDENTIAL
Q&A and Contact Us
Delya Ghosh, Partner
(415) 743-9694
dghosh@balglobal.com
www.balglobal.com
Erika Malzberg,...
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Immigration Challenges for Startups and Emerging Businesses

If you’re thinking of sourcing talent from outside the U.S. -- or you are an entrepreneur who has questions about the visa process -- check out this presentation from Delya Ghosh, Partner at Berry Appleman & Leiden LLP (https://www.balglobal.com/) and Early Growth Financial Services (www.earlygrowthfinancialservices.com).

Topics covered include the most common immigration challenges that startups face, including handling visa challenges and navigating the process with various governmental agencies.

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Immigration Challenges for Startups and Emerging Businesses

  1. 1. CONFIDENTIAL 1Copyright © 2015 Berry Appleman & Leiden LLP Immigration Challenges for Start-ups and Emerging Businesses #StartupImmigration
  2. 2. CONFIDENTIAL With You Today Copyright © 2015 Berry Appleman & Leiden LLP 2 Delya Ghosh Partner BAL Erika Malzberg CMO EGFS
  3. 3. CONFIDENTIAL Austin | Boston | Dallas | Geneva | Houston | London | McLean, Va. | Rio de Janeiro San Francisco | São Paulo | Shanghai | Singapore | Sydney | Washington D.C. Non-U.S. offices are operated by affiliated entities in those countries. See website for details. Passion. Knowledge. Results. balglobal.com 3Copyright © 2015 Berry Appleman & Leiden LLP CONFIDENTIAL
  4. 4. CONFIDENTIAL Berry Appleman & Leiden • Full-service, corporate immigration law firm, established in 1980 • 90+ attorneys, solicitors and/or immigration managers • 500+ employees around the world • Offices across the US and in Australia, Brazil, China, Singapore, Switzerland and UK • Network Partners in over 150 countries • Significant experience with diverse multi-national corporations, in industries including information technology, pharmaceuticals, manufacturing, engineering, life sciences and financial services 4Copyright © 2015 Berry Appleman & Leiden LLP
  5. 5. CONFIDENTIAL “Startups face a huge burden in today’s economy, often having to choose between funneling resources toward creating their goods and services or managing the often complex accounting, tax and financial strategy planning necessary to run a successful business.” ~ David Ehrenberg, Founder and CEO Early Growth Financial Services
  6. 6. CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 6 Today’s Agenda • Immigration agencies and key concepts • Common nonimmigrant visas and challenges for start-ups • Green card process overview and challenges • Special considerations for Founders/Owners
  7. 7. CONFIDENTIAL • Department of Homeland Security  U.S. Citizenship & Immigration Services (USCIS)  U.S. Customs & Border Protection (CBP)  U.S. Immigration & Customs Enforcement (ICE) • Department of Labor • Department of State Copyright © 2015 Berry Appleman & Leiden LLP 7 What are the Relevant Agencies?
  8. 8. CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 8 Key Immigration Concepts Non-Immigrant vs. Immigrant What is the difference between a visa and status? I-94 record controls length of stay, not visa Quotas
  9. 9. CONFIDENTIAL • Coming to the United States temporarily • Retain residence abroad (required for certain categories) • Dual intent: only for H’s and L’s • Alphabet Soup of non-immigrant visas: A-V Copyright © 2015 Berry Appleman & Leiden LLP 9 Non-Immigrant Visas
  10. 10. CONFIDENTIAL • B-1/B-2 Business Visitor/Tourist • E-1/E-2 Treaty Trader/Treaty Investor • E-3 Australian • F-1 Student • H-1B Specialty Occupation • H-3 Trainee • J-1 Cultural Exchange Visitor • L-1 Intra-company Transferee • O-1 Extraordinary Ability • TN Treaty Nafta Copyright © 2015 Berry Appleman & Leiden LLP 10 Common Non-Immigrant Visas/Status
  11. 11. CONFIDENTIAL • Professionals - Specialty occupation (degree in field required) • Not based upon shortage of U.S. workers • Numerically limited: ~ 85,000/year • Issued in 3-year increments • 6-year limit with exceptions: AC21  LC filed 365 days before final stay  I-140 approval and Immigrant quota backlog Copyright © 2015 Berry Appleman & Leiden LLP 11 Snap Shot: H-1B Specialty Occupation Workers
  12. 12. CONFIDENTIAL • For managers/executives (L-1A) or specialized knowledge professionals (L-1B) • Requires 1 year employment abroad at qualifying organization within past 3 years • Spousal employment permitted with EAD card • 7-year limit for L-1A • 5-year limit for L-1B Copyright © 2015 Berry Appleman & Leiden LLP 12 Snap Shot: L-1A/L-1B Intracompany Transfers
  13. 13. CONFIDENTIAL • Quota for new H-1B’s exhausted for 2015 • Increased scrutiny for businesses with less than 25 employees • Elevated evidentiary requirements to prove bona fide business • Brick and mortar business requirement • Prevailing Wage requirements • Employer–Employee relationship required or implied for many non-immigrant visa categories Copyright © 2015 Berry Appleman & Leiden LLP 13 Non-Immigrant Visa Challenges Faced by Start-ups
  14. 14. CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 14 Immigrant Visas
  15. 15. CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 15 Immigrant Visas and Permanent Residence: You can take one of four roads… Green Card Employment Based Family Based Green Card Lottery (Diversity Visa Program) Asylum and related programs
  16. 16. CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 16 Employment Based (EB) Preference Categories Employment Based First Preference (EB-1) Second Preference (EB-2) Third Preference (EB-3)
  17. 17. CONFIDENTIAL • EB-1 does not require labor certification Extraordinary Ability Outstanding Professor/Researcher Multinational Executive/Manager • EB-2 and EB-3 require a PERM labor certification: a test of the U.S. labor market Copyright © 2015 Berry Appleman & Leiden LLP 17 First, Second and Third Preference Categories
  18. 18. CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 18 Permanent Residence Process
  19. 19. CONFIDENTIAL • Typically first step of the green card process • Electronic filing with Department of Labor • Must describe position, job requirements and recruitment efforts • Must show shortage of qualified, willing or available U.S. workers • Recruitment steps mandated by regulation • PERM filing date establishes “priority date” for immigrant visa Copyright © 2015 Berry Appleman & Leiden LLP 19 Stage 1 – Labor Certification: PERM
  20. 20. CONFIDENTIAL • File within 6 months of PERM approval • Establishes employee’s qualifications for the job • Designates immigrant preference category (EB-1, 2, 3) and priority date • Establishes employer’s ability to pay the offered wage Copyright © 2015 Berry Appleman & Leiden LLP 20 Stage 2 – I-140 Immigrant Visa Petition
  21. 21. CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 21 Visa Delays All green cards are the same, so why do categories matter? • The complicated quota system: The Immigration and Nationality Act (INA) sets an annual minimum family- sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. The per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620. The dependent area limit is set at 2%, or 7,320. EB-1 is 28.6% of the worldwide EB preference level, plus any numbers not required for fourth and fifth preferences. EB-2 is 28.6% of the worldwide EB preference level, plus any numbers not required by first preference. EB-3 is 28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers". EB-4 is 7.1% of the worldwide level. EB-5 is 7.1% of the worldwide level. • The Visa Bulletin (updated monthly)
  22. 22. CONFIDENTIAL • Priority date on Visa Bulletin must be current to file form I-485 • Adjustment of Status (AOS) filed with USCIS • May be filed concurrently with Stage 2 (Form I-140) when immigrant visa is available • Employment Authorization Document (EAD) and Advance Parole (AP) available • Alternative: Immigrant visa application filed at U.S. consulate abroad Copyright © 2015 Berry Appleman & Leiden LLP 22 Stage 3 – Application for Permanent Residence
  23. 23. CONFIDENTIAL • Ownership interest may impact eligibility • Demonstration of Ability to Pay • GC’s are location and position specific: Material changes in job may require new filings • Employee may not rise to EB1 eligibility. Company also may not meet EB1 requirements. Copyright © 2015 Berry Appleman & Leiden LLP 23 Green Card Challenges Faced by Start Ups
  24. 24. CONFIDENTIAL • When is a work visa required? • Controlling interest can impact eligibility for both non-immigrant/immigrant visas • Presidential executive order: Enhance options for foreign entrepreneurs • EB5 Investor Visas Copyright © 2015 Berry Appleman & Leiden LLP 24 Special Considerations for Founders/Owners
  25. 25. CONFIDENTIAL Q&A and Contact Us Delya Ghosh, Partner (415) 743-9694 dghosh@balglobal.com www.balglobal.com Erika Malzberg, CMO (415) 234-3437 contact@earlygrowthfinancialservices.com www.earlygrowthfinancialservices.com @EarlyGrowthFS

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