U.S. Business Immigration Current Issues and Trends U.S.-Mexico Bar Conference September 27-29, 2017

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1 U.S. Business Immigration Current Issues and Trends U.S.-Mexico Bar Conference September 27-29, 2017 Ellen S. Kief Dentons Canada LLP Counsel U.S. Immigration Law Practitioner of Foreign Law (BC) Attorney at Law (MA)

2 Topics Visa Overview o E-2 Treaty Investor Visa - Non-Immigration Intent o EB-5 Investor Program- Green Card o H-1B Specialty Occupation Visa- Dual Intent o EB-2 Employment Based -Advanced Degree or Exceptional Ability o EB-3 Employment Based Bachelor Degree, Skilled Workers and Other Workers 29 September

3 E-2 Treaty Investors E-2 Non-Immigrant Classification 2 year stay - no limit.treaty INVESTOR. Treaty Country of Commerce and Navigation..Invest capital in bona fide enterprise in the U.S..Enter solely to develop and direct investment enterprise..at least 50% ownership of enterprise or possession of operational control..investment-funds assets at RISK in commercial sense with objective of generating a profit..substantial amount of Capital in relationship to total cost of purchasing an established enterprise or establishing a new one. 29 September

4 E-2 Treaty Investors Treaty investor will successfully develop and direct the enterprise. Marginal Enterprises must generate enough income to provide for self and family. EMPLOYEE of a Treaty Investor Be same nationality of principal alien employer. Meet definition of employee under relevant law. Engaged in duties as a Executive or Managerial Supervisory, or Specialized Knowledge qualifications. If Principal alien employer is not an individual, then must be an enterprise or organization at least 50% owned by persons in the U.S. who have the nationality of the treaty country. Owners MUST maintain non-immigration treaty investor status. If owners not in US, if they were to seek admission must be classifiable as non-immigration treaty investors. 29 September

5 E-2 Treaty Investors Executive or supervisory ultimate control for responsibility for overall operation. Specialized knowledge-employees services essential to operation. Only work in activity approved at time of classification. May work for treaty organization's parent company or subsidiary as long as relationship is established. Requires that such positions, terms and conditions have not changed. USCIS must approve substantive changes. Spouse and unmarried children under 21 may accompany. Spouse may apply for EAD and work anywhere. Travel abroad, each family member for grant 2 year readmission into US. 29 September

6 EB-5 Immigrant Investor Program Entrepreneurs, spouses and unmarried children under 21.Green Card If: Investment in commercial enterprise in U.S and create or preserve 10 permanent full-time jobs for qualified U.S. workers. (created 1990). Regional Center Program, created1992,invest in commercial enterprises associated with regional centers approved by USCIS to promote growth. New Commercial Enterprise: for profit activity ongoing: Sole proprietorship, Partnership, Holding Company, Joint venture, Corporation, Business trust or entity publicly or privately owned. Does NOT include noncommercial activity such as a personal residence. Job Creation: New Commercial enterprise, not in Regional Center, 10 full time qualifying employees. Within regional center direct or indirect jobs. Job sharing ok. Minimum 35 hours per week. Qualifying employee: USC, LPR, Cond.Res., Temporary resident, asylee, refugee. Does not include immigrant investor, family, nonimmigrant status H-1B, or non authored to work in U.S. 29 September

7 EB-5 Immigrant Investor Program Capital Investment : cash, equipment, inventory, tangible property, cash equivalents, and indebtness secured by assets owned by alien entrepreneur personally and primarily liable and not used to secure any indebtedness. All capital valued at fair market in U.S. dollars. Assets acquired directly or indirectly by lawful means only. Minimum Investment: $1 million USD creating 10 Direct jobs; or $500,000 Targeted Employment Area (TEA) 150% unemployment of national average or rural area, not within metro stats area (so designated) or outer boundary having pop. of 20,000 or more (census). 29 September

8 H-1B Specialty Occupation Program The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor s degree or higher in the specific specialty, or its equivalent. H- 1B specialty occupations may include fields such as science, engineering and information technology. Congressionally mandated cap of 65,000 H-1B visas ( regular cap ). An exemption from the H-1B cap for beneficiaries who have earned a U.S. master s degree or higher ( advanced degree exemption ) is available until the number of beneficiaries who are exempt on this basis exceeds 20,000. You may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. Filing starts April 1 st for an October 1 st start date. Usually lottery, as too many applications. 29 September

9 H-1B Specialty Occupation Program The H1B visa category allows organizations with a Federal Identification Number/IRS tax number to employ a foreign professional to work in a specialty occupation for up to six years, 3 years at a time. H1B Visa Is Suitable For: Foreign professionals in specialty occupations, such as scientists, engineers, programmers, research analysts, management consultants, accountants, computer analyst, financial analyst, or architect and others with Bachelor's or equivalent degree Foreign nationals entering the U.S. to offer exceptional services relating to cooperative research and development projects administered by the U.S. Department of Defense 29 September

10 H-1B Specialty Occupation Program Professional Nurses entering the U.S. to perform complex job duties or supervise nursing operations Distinguished fashion models U.S. companies to bring in qualified foreign professionals for jobs that require a bachelors degree and specialized skills Benefits of The H1B Visa You do not have to maintain a foreign residence and show intent to return to your home country while applying for the visa Dependents can stay as long as maintaining H1B status. Dependents can attend school. H-1B and dependents can freely travel in and out of the U.S. with a valid visa. 29 September

11 H-1B Specialty Occupation Program Requirements For The H1B Visa To be eligible for sponsoring an H1B visa, the employer must prove that: The position offered requires knowledge, both theoretical and applied, which is almost exclusively obtained through studies at an institution of higher learning The position requires a specific course of study which relates directly to the position Attainment of a bachelor's or higher degree in the specific activity (or its equivalent) is a minimum requirement for the position Criteria For Determining Employee's Eligibility To be eligible for an H1B visa, you must demonstrate that you have: Full state licensure to practice in the occupation, if such licensure is required to practice in the occupation 29 September

12 H-1B Specialty Occupation Program Completed the degree required for the occupation or possess experience in the specialty equivalent to the completion of such degree Recognition of expertise in the specialty through progressively responsible positions relating to the specialty Additional Positions Generally Considered Professional Accountant, Acupuncturist, Chiropractor, Computer Programmer, Dietitian, Electronics Specialist, Fashion Designer, General Manager (where business is complex), Graphic Designer, Hotel Management, Industrial Designer (with B.A.), Interior Designer (commercial), Journalist, Librarian, Medical Records Librarian, Medical Technologist, Minister, Orthopedist, Pharmacist, Social Worker, Technical Publications Writer and Vocational Counselor. 29 September

13 EB-2 Second Preference Employment You may be eligible for an employment-based, second preference visa if you are a member of the professions holding an advanced degree or its equivalent, or a foreign national who has exceptional ability. Criteria Official academic record showing that you have a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to your area of exceptional ability. Letters documenting at least 10 years of full-time experience in your occupation. A license to practice your profession or certification for your profession or occupation. Evidence that you have commanded a salary or other remuneration for services that demonstrates your exceptional ability. 29 September

14 EB-2 Second Preference Category Membership in a professional association(s). Recognition for your achievements and significant contributions to your industry or field by your peers, government entities, professional or business organizations. Other comparable evidence of eligibility is also acceptable. Employment-based, second-preference petitions must generally be accompanied by an approved individual labor certification from the Department of Labor on Form ETA-750. To qualify for an EB-2 visa, your employer must file a Form I-140, Petition for Alien Worker. Family of EB-2 Visa Holders Your spouse and children under the age of 21 may be admitted to the United States in E-21 and E-22 immigrant status, respectively. During the process where you and your spouse are applying for permanent resident status (status as a green card holder), your spouse is eligible to file for an Employment Authorization Document (EAD). 29 September

15 EB-3 Third Preference Employment Skilled Worker, Professional, or Other Worker Skilled workers are persons whose job requires a minimum of 2 years training or work experience, not of a temporary or seasonal nature. Professionals are persons whose job requires at least a U.S. baccalaureate degree or a foreign equivalent and are a member of the professions. Other Workers subcategory is for persons performing unskilled labor requiring less than 2 years training or experience, not of a temporary or seasonal nature. Note: While eligibility requirements for the third preference classification are less stringent, long backlog exists for visas in the "other workers" category. U.S. Department of Labor Labor Certification Third preference petitions must generally be accompanied by an approved, individual labor certification from the Department of Labor on Form ETA In some cases, the petition may be submitted to U.S. Citizenship and Immigration Service (USCIS) with an uncertified ETA-9089 for consideration as Schedule A, Group I. 29 September

16 Thank you! Enjoy your day. Ellen S. Kief Counsel U.S. Immigration Law Practitioner of Foreign Law (BC) Attorney at Law (MA) D Vancouver, BC Dentons is the world's largest law firm, delivering quality and value to clients around the globe. Dentons is a leader on the Acritas Global Elite Brand Index, a BTI Client Service 30 Award winner and recognized by prominent business and legal publications for its innovations in client service, including founding Nextlaw Labs and the Nextlaw Global Referral Network. Dentons' polycentric approach and world-class talent challenge the status quo to advance client interests in the communities in which we live and work Dentons. Dentons is a global legal practice providing client services worldwide through its member firms and affiliates. This document is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. We are providing information to you on the basis you agree to keep it confidential. If you give us confidential information but do not instruct or retain us, we may act for another client on any matter to which that confidential information may be relevant. Please see dentons.com for Legal Notices. 29 September

FRAGOMEN, DEL REY, BERNSEN & LOEWY, LLP ELLEN G. YOST, PARTNER

FRAGOMEN, DEL REY, BERNSEN & LOEWY, LLP ELLEN G. YOST, PARTNER This handout will outline some of the most commonly-used nonimmigrant and immigrant visa categories available to foreign nationals seeking to enter the United States temporarily or permanently for business