february 11, 2005 shulman, rogers, gandal, pordy & ecker, p.a.1 micpel cle seminar the nuts and...

February 11, 2005 Shulman, Rogers, Gandal, Pordy & Ecker, P.A.

1

MICPEL CLE SeminarThe Nuts and Bolts of Immigration PracticeAlternative Employment Visa Options to H-1B

By: Michael L. Kabik, Esq. © 2005Immigration, Nationality & Consular Practice Group

Shulman, Rogers, Gandal, Pordy & Ecker, P.A.

11921 Rockville Pike, Suite 300, Rockville, Maryland 20852-2743 U.S.A.

Telephone: (301) 231-0937 Facsimile: (301) 230-2891

E-Mail: [email protected] Web Site: www.shulmanrogers.com


2

Alternatives to H-1B

F-1 Optional Practical Training (“OPT”)TN NAFTA Professional(Canada/Mexico)FTA H-1B Professional (Chile/Singapore)E-1 Treaty TraderE-2 Treaty Investor


3


L-1 Intracompany TransfereeO-1 Extraordinary AbilityP-1 Athletes and EntertainersJ-1 Trainee


4


F-1 – Optional Practical TrainingUniversity students

1 year validity period (cumulative)• Breaks during degree• Post degree

Limited to field related to academic study

Non-employer specific


5


F-1 – Optional Practical TrainingImpact of future expirationsF-1 60 day grace period• Without employment authorization

Past FY’s CIS “Cap Gap” regulation for F-1 with D/S• Maintenance of valid status


6


H-1B Cap issues for F-1 OPTRecruitment

Remainder of FY-2005Strategic planning to avoid• Delayed start new H-1B employees• Interruptions to existing employees

changing to H-1B status


7


Strategic PlanningFY-2005 H-1B cap hit on 10/1/2004When will FY-2006 H-1B cap hit?Accelerated H-1B Filings for F-1 OPT’s with FY-2006 expiration datesPremium ProcessingIdentify potential employees not subject to H-1B cap


8


TN – NAFTA ProfessionalEmployer specific

• U.S. Employers• Canadian or Mexican Employers

Limited to Canadians and Mexicans• 67 specified professions

1 Year maximum admission• Indefinite extensions


9


TN – NAFTA ProfessionalCanadians visa exempt

• Apply directly at Border or POE

Mexicans require TN Visa• Apply directly at U.S. Consular Post• Changes as of January 2004

– 5,500 FY Cap eliminated– LCA approval eliminated– I-129 approval eliminated


10


H-1B – FTA ProfessionalU.S.-Chile Free Trade Agreement• Effective January 2004• Limit – 1,400 per FY

U.S.-Singapore Free Trade Agreement• Effective January 2004• Limit – 5,400 per FY

“Specialty Occupation” requirement


11

Alternatives to H-1BH-1B – FTA Professional

LCA requirementPrimary Jurisdiction @ U.S. Consular PostsLimited to 18 monthsNo “Dual Intent” as with regular H-1B’s• Required to overcome presumption of

“Immigrant Intent”

After 5 renewals, counts against regular H-1B cap


12


E-1 – Treaty TraderEmployer SpecificNo prior employment req’d (unlike L-1)Treaty must exist – U.S. & other countryMajority ownership/control of U.S. entity

• At least 50% by treaty country nationals

Alien must be citizen of treaty country2 Year maximum visa validity period

• Indefinite extensions

Initial consular jurisdiction abroad


13

Alternatives to H-1BE-1 Special Requirements

Trade• Exchange, purchase, or sale of goods,

services or technologySubstantial

• No minimum dollar threshold• Volume of trade• Number of transactions• Includes binding contracts• Continued course of trade


14


Principally with U.S.• 50%+ of total volume of international trade of

the U.S. entity must consist of trade between U.S. and treaty country

Duties• Supervisory, Executive, Managerial• Highly Specialized Essential Skills• Not including “ordinarily skilled” workers


15


E-2 – Treaty InvestorEmployer specificNo prior employment req’d (unlike L-1)Treaty must exist - U.S. & other countryMajority ownership/control of U.S. entity

• At least 50% by treaty country nationals

Alien must be citizen of treaty country2 Year maximum visa validity period

• Indefinite extensions

Initial consular jurisdiction abroad


16


Active investment• Irrevocable commitment of funds• Actual active investment

Substantial investment• No minimum dollar amount

– Standards for new or existing business• Investment in process – start up company• Investor’s own resources• “At risk”


17


Creation of jobs• Cannot be marginal

– To only support the investor & his family• Create job opportunities for U.S. workers• Significant impact upon U.S.

Essential role in enterprise• Investor to develop and direct investment• Executives, Supervisors, Specially Qualified Essential

employee• Not including “ordinarily skilled” workers


18


L-1 – Intracompany TransfereeEmployer specificAlien must be employed abroad by foreign entity

• 1 continuous year out of prior 3 years• In “Executive,” “Managerial,” or “Specialized

Knowledge” position• Transfer to U.S. to fill “Executive, ”

“Managerial,” or “Specialized Knowledge” position


19

Alternatives to H-1BL-1 – Intracompany Transferee

Foreign entity must be related to U.S. company

• Same company• Subsidiary• Affiliate

Qualifying Organization• Doing business in U.S. and other country• During whole period of transfer


20


L-1 – Intracompany TransfereeL-1A -- Executives & Managers

L-1B -- Specialized Knowledge Personnel

Visa Validity Terms• 5-7 Year Maximum (3 years initially)• Start-Ups (1 year initially)

EB-1 Greencard Benefit


21


O-1 – Extraordinary AbilityEmployer specific

Aliens of “Extraordinary Ability”• Sciences, Arts, Education, Business &Athletics

3 Year maximum visa validity period• Unlimited extensions

EB-1 Greencard Benefit


22


O-1 CriteriaReceipt of a major internationally recognized award

• e.g., the Nobel Prize

Receipt of 3/10 of other forms documentation


23

Alternatives to H-1BO-1 – 3/10 Criteria

Nationally/Intl’ly recognized prizes/awards• for excellence in the field of endeavor

Membership in associations in the field• which require outstanding achievements• as judged by recognized nat’l or int’l experts

Published material about the person• in professional or major trade publications or

other major media


24


O-1 – 3/10 CriteriaParticipation (on a panel or individually) as a judge of the work of others in the field

Original scientific, scholastic, artistic, athletic or business-related contributions

• of major significance in the field

Authorship of scholarly articles in the field• in professional journals or major media


25


O-1 – 3/10 CriteriaEmployment in a critical or essential capacity

• for organizations or establishments that have distinguished reputations

High salary or other high remuneration• in relation to others in the field

Other comparable evidence


26


J-1 – TraineeExchange Visitor Designation

Training not available in home country

Dept. of State jurisdiction

Apply via DOS approved Program Sponsors

18 Month maximum


27

Legal DisclaimerFacts of individual cases differThe information provided herein is general in nature and should not be relied uponConsult with an experienced immigration attorney with regard to specific cases

february 11, 2005 shulman, rogers, gandal, pordy & ecker, p.a.1 micpel cle seminar the nuts and...

Documents

pordy ecker

b cap slide

b status slide

regular h

accelerated h

b filings

b cap issues

b employees interruptions