Published on February 26, 2014
Immigration Options for Startups plainlegal.com @plainlegal
Elizaveta (Lisa) Eisenberg, Esq. ● ● ● ● Consider large firm vs. small firm Tel.: (212) 951-0753 Understand firm’s protocols Consider how to use firm’s services www.LisaEsq.com efficiently firstname.lastname@example.org Understand exactly who is the “client” ○ Consider when separate representation is appropriate plainlegal.com @plainlegal
○ Nonimmigrant (Temporary Visas) plainlegal.com @plainlegal
B-1 and Visa Waiver Program ● ● ● No “gainful employment.” For startups, can be used to: ○ Set up the business (incorporation, renting an office, meeting with business partners and investors, negotiating contracts, etc.) ○ Invite foreign collaborators (cannot be paid for their services in the U. S.) B-1 status: usually for 3 or 6 months; when appropriate, can be extended or changed to a different status without leaving the U.S. Visa waiver program (ESTA): For citizens of eligible countries, up to 90 days; no extension or change of status. plainlegal.com @plainlegal
OPT/STEM Extension ● ● ● Can be used to work for a U.S. company or set up your own business; Duration: 1 year; STEM degrees: additional 17 months. Employer must register for e-Verify. plainlegal.com @plainlegal
H-1B Visa (“Specialty Occupation”) ● ● Occupation requires a bachelor’s or higher degree for an entry level position; or Some unusually complex positions within other occupations. Annual cap or quota: ● 85,000 per year (20,000 for holders of U.S. master’s or higher degrees) ● October 1 – start date; April 1 – the earliest filing date ● Lottery Duration: 6 years (3+3), may be extended beyond 6 years for certain permanent residence applicants. plainlegal.com @plainlegal
H-1B Visa (“Specialty Occupation”) Issues for startups: ● Prevailing wage. ● Post-filing compliance. ● Sponsoring business and marketing professionals. ● H-1B for company owners or co-owners: ○ Used to be problematic – no “employer-employee relationship.” ○ 2011 guidance: a sole owner or a majority shareholder might be able to show employer-employee relationship (e.g., a board of directors); ○ Cannot be sponsored for a “green card” – to be discussed below. plainlegal.com @plainlegal
L-1 Visas (“Multinational Transferee”) “Multinational” business: at least one U.S. company and at least one foreign company related as: ● parent/subsidiary; ● affiliates - owned 50% or more by the same individual or entity; or owned by the same group of individuals in approximately the same proportion. ● branches of the same organization. plainlegal.com @plainlegal
L-1 Visas (“Multinational Transferee”) ● The applicant must have served the foreign entity for at least 1 year within the past 3 years as a manager, executive or “specialized knowledge” employee, and is coming to the U.S. to serve in one of these capacities for the U.S. entity. ● Duration: L-1A (executives and managers) – 7 y. (3+2+2); L-1B (“specialized knowledge”) – 5 y. (3+2). Business must remain “multinational” for the duration of a visa. plainlegal.com @plainlegal
L-1 Visas (“Multinational Transferee”) “New office” L visas: ● Purpose – to establish a U.S. office of a foreign company. ● Initial duration – 1 year. ● Must demonstrate that the new office will support a managerial or executive position in 1 year. Issues for startups: ● Manager/executive position abroad and in the U.S. ● “New office” must secure sufficient physical premises. ● Founders and co-founders are eligible. plainlegal.com @plainlegal
O-1 Visas (“Alien of Extraordinary Ability”) Known as “artist visa” but available in other fields. Different standards for “extraordinary ability”: ● Arts (O-1B) – “distinction,” i.e., being renowned, leading, or well-known. ● Other fields (O-1A) – “a level of expertise indicating that the person is one of the small percentage who has risen to the very top of the field of endeavor.” ● Duration: initially 3 years, can be extended indefinitely. plainlegal.com @plainlegal
O-1 Visas (“Alien of Extraordinary Ability”) Types of evidence for non-artists: ● A major award, or ● At least three of the following eight criteria: ○ lesser prizes or awards; ○ membership in associations; ○ publications about the applicant; ○ having acted as a judge of the work of others; ○ contributions of major significance; ○ authorship of scholarly articles; ○ employment in a critical capacity for distinguished organizations; and ○ having received high salary or other remuneration. ● If these criteria do not apply, comparable evidence can be presented. plainlegal.com @plainlegal
O-1 Visas (“Alien of Extraordinary Ability”) Advantages for startups: ● Flexibility in terms of wage level, payment arrangements, work schedule, etc.; ● A business entity can sponsor its founder, a sole owner or a majority shareholder. plainlegal.com @plainlegal
E-2 Visa (Treaty Investor) ● ● ● ● Applicant’s country of nationality must have a BIT with the United States. A person or a foreign enterprise can be an investor; The investment must be in a commercial enterprise, “substantial” and “at risk,” and the investor must be in a position to oversee and direct the enterprise. Investment enterprise can sponsor employees of the same nationality: ○ Nationality of the enterprise = nationality of its owners (at least 50% must belong to citizens of a treaty country, U.S. permanent residents and dual citizens don’t count ). ○ Employee must be an executive, a supervisor or an “essential” employee. Duration: renewable indefinitely if all conditions are met. plainlegal.com @plainlegal
E-2 Visa (Treaty Investor) Issues for startups: ● “Substantial” investment: ○ not clearly defined, less than $100,000 might be a problem; ○ For small businesses, requires upfront investment close to 100% of startup costs; ● Not suitable for most entrepreneurs who do not invest their own money; ● Engaging investors from the U.S. and other countries may change the company’s nationality. plainlegal.com @plainlegal
Other Relevant Nonimmigrant Visas ● ● ● ● E-1 Treaty Trader TN (Canada and Mexico); H-1B1 (Chile, Singapore); E-3 (Australia) Visas for training (J-1 and H-3) Visas for lower-skilled employees (H-2B) plainlegal.com @plainlegal
○ Permanent Residence plainlegal.com @plainlegal
Labor Certification (PERM) ● ● ● Permanent, full-time position. Employees only, no owners or shareholders - the job opportunity must be open to qualified U.S. workers. Steps: ○ preparation and pre-filing recruitment (“test of the labor market”); ○ an electronic application for labor certification filed with the Department of Labor; ○ an immigrant petition filed with USCIS; and ○ a permanent residence application (may be filed concurrently with the immigrant petition or on a later date, depending on the classification and the applicant’s country of birth) plainlegal.com @plainlegal
Labor Certification (PERM) Issues for startups: ● Costs (recruitment and legal fees for labor certification) – must be paid by employer; ● Time-consuming process; ● Proving the ability to pay the proffered wage: ○ From the filing of the labor certification application and until obtaining permanent residence (at which point the employer must start paying the proffered wage); ○ Showing net annual income or net assets exceeding the annual proffered -> wage potential tax liability; ○ If the employee currently works for the petitioner - demonstrate the ability to pay the difference between the actually paid salary and the proposed wage. ○ Expert legal guidance and careful planning are paramount. plainlegal.com @plainlegal
“Alien of Extraordinary Ability”: ● ● ● The regulatory standard and criteria are identical to O-1 visa for non-artists, but the scrutiny is higher. No lower standard for artists. Foreigners can petition for themselves (an offer of employment in the U.S. is not required) -> a solution for owners and co-owners of U.S. companies. plainlegal.com @plainlegal
National Interest Waiver: ● ● ● ● ● Must prove that it is in the U.S. national interest to waive the requirement of the job offer and labor certification work (i.e., the foreigner’s work will benefit the national interest of the United States to the substantially greater degree than the work of others in the same field). The benefit must be national in scope (i.e., not limited to a specific geographical area). Foreigners can petition for themselves. Decisions are based primarily on the applicant’s prior achievements. Evidence: publications, grants, funding, evidence of the company’s products being widely used, licenses and patents. plainlegal.com @plainlegal
Multinational Executives/Managers: ● ● The requirements are parallel to L-1A; U.S. company must have been doing business for at least 1 year. plainlegal.com @plainlegal
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