the impact of the recession on the foreign national community: immigration considerations
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The Impact of the Recession on the Foreign National
Community:Immigration ConsiderationsImmigration Considerations
Kate Kalmykov, Esq.Klasko, Rulon, Stock & Seltzer, LLPKlasko, Rulon, Stock & Seltzer, LLP
Philadelphia New York1800 JFK Blvd., 17th Floor 317 Madison Ave., Suite 1518Philadelphia, PA 19103 New York, NY 10017215.825.8600 212.796.8840
www.klaskolaw.com
Klasko, Rulon, Stock & Seltzer, LLP
2009 Issues
■ Fewer job offers■ H-1B quota■ Effect of TARP requirements on H-1Bs■ Impact of layoffs■ Increased opportunities for investors and
entrepreneurs
Klasko, Rulon, Stock & Seltzer, LLP
Employment Options for the F-1 Student
■ 20 hours per week on campus■ OPT after complete studies
■ 90 day rule■ STEM Extension
■ Options for the entrepreneur On-campus employment must be services for
students OPT employment must be related to studies See “Murky F-1 Employment Issues” (
http://www.klaskolaw.com)
Klasko, Rulon, Stock & Seltzer, LLP
H-1B
Basic requirements Procedure and processing times Specialty occupation issues Part-time or full-time Length of approval Extensions Portability Travel
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Quota
What is it and what does it mean? Who is not subject to the quota?
Universities Nonprofit institutions affiliated with universities Employed “at” university Nonprofit or government research organization Previous H-1B under cap Concurrent employment
Strategies and timing
Klasko, Rulon, Stock & Seltzer, LLP
The H-1B and TARP Recipients
American Recovery and Reinvestment Act of 2009 requires employers who accept TARP or FRA Section 13 funds to make additional attestations on the LCA when hiring H-1Bs.
H-1B employers must attest that they took good faith steps to recruit U.S. workers and that no U.S. worker was displaced by the employment of an H-1B worker either at the employer's own worksite or at any outside worksite where the employer has placed an H-1B worker.
Klasko, Rulon, Stock & Seltzer, LLP
The H-1B and TARP Recipients
The Federal government is expected to introduce additional programs under FRA Section 13 that will be open to both U.S. entities and qualifying U.S. branches and subsidiaries of foreign entities. One such program is the Term Asset-Backed Securities Loan Facility (TALF), which will offer discounted Federal Reserve loans to eligible borrowers.
Klasko, Rulon, Stock & Seltzer, LLP
The H-1B and TARP Recipients The Specifics:
This provision does not apply to H-1B extensions 2 year program, ending on February 16, 2011 Does not apply to Change of Status if employee is
already working with employer including on OPT Cap subject filings for FY2010 must include addt’l
attestations List of TARP recipients is available at
http://www.financialstability.gov/latest/index.html (Note: This Web site lists recipients of TARP funding, but not recipients of
direct Federal Reserve credit, so it is not all-inclusive). It is best to discuss with the prospective employer if they are considered a TARP recipient.
Klasko, Rulon, Stock & Seltzer, LLP
TARP and Student Issues
TARP provisions apply only to H-1B employees: Students working on OPT not affected
Some employers are rescinding offers to these students b/c eventually they will need to file H-1B to keep the employee
Other Nonimmigrant visa categories
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Issues for Start-Up Business
Must establish company with employer tax I.D. number
Company can be 100% owned by H-1B employee Must be W-2 employee Company separate entity from owner/employee
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Issues for Start-Up Business
Company must proveFinancial ability to pay salary
Profits and/or capitalization
Real job to be done by H-1BPlace of business
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Issues for Start-Up Business
Importance of business plan/financial projections
Other employees helpful – not required Prevailing Wage
CEO vs. function-descriptive position
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
H-1B Issues for Start-Up Business
“Specialty Occupation”Use of concepts learned in courses
H-1B QuotaPast years2009- CAP not reachedWhat it meansEmployment during “cap gap”
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Other Nonimmigrant (Temporary) Options Treaty (E) Visas
■ Must be national of treaty country http://www.travel.state.gov./visa
■ Company must be owned at least 50% by treaty country nationals
Klasko, Rulon, Stock & Seltzer, LLP
(cont’d)
Other Nonimmigrant (Temporary) Options Treaty (E) Visas
Visa for 1 to 5 yearsEach entry limited to two yearsVisa and entry can be extended indefinitely
No quota Spouse can work
Klasko, Rulon, Stock & Seltzer, LLP
■ Treaty traders (E-1)“Substantial” import or exportMajority between U.S. and treaty countryCan be manager, supervisor or “essential
skill” employee
(cont’d)
Other Nonimmigrant (Temporary) Options Treaty (E) Visas
Klasko, Rulon, Stock & Seltzer, LLP
■ Treaty investors (E-2)“Substantial” investment
No exact amount Varies depending upon type of investment Relevant issues
Amount of investment Number of employees Needs of business Likely profitability and growth potential
Business plan and financial projections critical
(cont’d)
Other Nonimmigrant (Temporary) Options Treaty (E) Visas
Klasko, Rulon, Stock & Seltzer, LLP
■Visa applicant can be Investor orManager, supervisor or essential employee
(cont’d)
Other Nonimmigrant (Temporary) Options Treaty (E)
Klasko, Rulon, Stock & Seltzer, LLP
Intracompany Transferee (L-1) Visas
■ National of any country■ No quota■ Length of visa
Start up 1 year Established business 3 years Maximum length 7 years for L-1A/ 5 years for L-1B
Klasko, Rulon, Stock & Seltzer, LLP
Intracompany Transferee (L-1) Visas
■ Must be “international” businessBusiness outside U.S. with at least 50%
common ownershipMust be employed by that business one year
■ Type of employment (in U.S. and overseas companies)Manager or executive“Specialized knowledge” employee
(cont’d)
Klasko, Rulon, Stock & Seltzer, LLP
Intracompany Transferee (L-1) Visas(cont’d)
Start-up issues Place of business Employees Capitalization Need for “manager” Business plan and financial projections
Klasko, Rulon, Stock & Seltzer, LLP
Extraordinary Ability (O-1) Visas
■ National or international renown■ “One of a few at the top of his peers”■ Must be employer or agent
Can own company
■ Length of visa 3 years 1 year extensions Can extend indefinitely
Klasko, Rulon, Stock & Seltzer, LLP
Termination of Employment
Upon termination, employee loses legal status and may be required to leave the U.S. unless the employee finds a new employer willing to file a new petition on his or her behalf on a timely basis, or is able to obtain a different nonimmigrant status. No grace period If employer terminates H1-B employee before the end of that
employee’s period of authorized stay, employer is responsible for the “reasonable costs” of return transportation to last country of residence
For permanent residence process implications depend on where you are in the process
Klasko, Rulon, Stock & Seltzer, LLP
Questions?
Klasko, Rulon, Stock & Seltzer, LLP
For Further Information
Kate Kalmykov Esq.Klasko, Rulon, Stock & Seltzer, LLP
kkalmykov@klaskolaw.com
212-796-8840 (New York)
www.klaskolaw.com
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