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

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

A webinar by Jon Velie

Sponsored by:

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

WHAT YOU’LL LEARN

Overview of temporary and permanent business visas, includes:

◦ Process◦ Applicability◦ Issues and strategies◦ Questions and Answers

Agenda

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.

Fact Pattern

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

L-1 Visa International Transferee

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.

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.

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.

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.

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.

Fact Pattern

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.

EB-1 Permanent Residency Visa-Green card

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.

Fact Pattern

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.

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.

O-1 Visa Extraordinary Ability

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:

receipt of lesser nationally, or internationally-recognized prizes or awards for excellence in the field of endeavor;

membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

published material about the alien in professional or other major trade publications or major media, relating to the alien's work;

evidence of the alien's participation, either individually or on a panel, as a judge of the work of others in the same or an allied field of specialization;

evidence of the alien's original scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the field;

evidence of the alien's authorship of scholarly articles in the field, in professional or major trade publications or other major media;

evidence of the display of the alien's work in the field at artistic exhibitions or showcases;

evidence that the alien has performed in a leading or critical role for organizations or establishments that have a distinguished reputation;

evidence that the alien has commanded a high salary or other significantly high remuneration for services, in relation to others in the field; or

evidence of commercial successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.

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.

Fact Pattern

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.

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


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


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.


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 professionalsFashion models use H-1B visas.


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.

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 renewhis or her E-3 visa

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.

Fact Pattern

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

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.

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.


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.


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.

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

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.

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.

J-1 Visa Management Trainee

E-1 and E-2 VisasTreaty 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 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.

E-1 and E-2 VisasTreaty Trader/Treaty Investor

Remember Sven the owner?Why an E-2 instead of L-1?

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.

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