SUPPLEMENTAL TERMINOLOGIES AND PRACTICE POINTERS RE EMPLOYMENT AUTHORIZATIONS FOR F-1 FOREIGN STUDENTS VISAS AVAILABLE TO OVERSEAS PARTNERS

Transcription

1 SUPPLEMENTAL TERMINOLOGIES AND PRACTICE POINTERS RE EMPLOYMENT AUTHORIZATIONS FOR F-1 FOREIGN STUDENTS VISAS AVAILABLE TO OVERSEAS PARTNERS THE PROPOSED INTERNATIONAL ENTREPRENEUR RULE by PEG YANG Principal, Law Offices of Peg Yang Visa Capital New York, NY 221

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3 1 Representing the Startup Business in New York 2016 When Startup Cross National Boundaries: ----Immigration Issues Involving Overseas Partners Supplemental Terminologies and Practice Pointers RE - Employment Authorizations for F-1 foreign students & - Visas available to overseas partners Peg Yang, Esq. 1. CPT ( curricular practical training ) and OPT ( optional practical training ) are the employment authorizations that are available for F-1 foreign students to utilize before and after completion of their study in the U.S.. The timeline for the F-1 students to utilize CPT is after the first year of study and before the completion of his academic program. F- 1 students can utilize both pre-completion OPT and post-completion OPT. The timeline for pre-completion OPT is after the first year of study and before the completion of the academic program. Post-completion OPT is a 12-month employment authorization provided to F-1 students to engage in practical training upon graduation. Post-completion OPT shall be complete within 14 months after the graduation date. STEM students can apply an additional of 17 months of post-completion OPT and therefore get a total of 29 months of OPT after graduation. During the post-completion OPT period, F-1 students cannot accrue more than 90 days of unemployment. For STEM students who have a total of 29 months of post-completion OPT, they cannot accrue more than 120 days of unemployment. A student must work at least 20 hours per week to be considered employed. Curricular Practical Training ( CPT ): An F-1 student may be authorized by the DSO to participate in a curricular practical training program that is an integral part of an established curriculum. Curricular practical training is defined to be alternative work/study, internship, cooperative education, or any other type of required internship or Law Offices of Peg Yang 45 Rockefeller Plaza, NYC Peg.Yang@VisaHumanCaptial.com

4 2 2. practicum that is offered by sponsoring employers through cooperative agreements with the school. Students who have received one year or more of full time curricular practical training are ineligible for post-completion academic training. Exceptions to the one academic year requirement are provided for students enrolled in graduate studies that require immediate participation in curricular practical training. A request for authorization for curricular practical training must be made to the DSO. A student may begin curricular practical training only after receiving his or her Form I-20 with the DSO endorsement. 8 CRF Sec (f)(10)(i). 3. Optional Practical Training ( OPT ): A student may apply to USCIS for authorization for temporary employment for optional practical training directly related to the student's major area of study. The student may not begin optional practical training until the date indicated on his or her employment authorization document, Form I-766. A student may be granted authorization to engage in temporary employment for optional practical training: (1) During the student's annual vacation and at other times when school is not in session, if the student is currently enrolled, and is eligible for registration and intends to register for the next term or session; (2) While school is in session, provided that practical training does not exceed 20 hours a week while school is in session; or (3) After completion of the course of study, or, for a student in a bachelor's, master's, or doctoral degree program, after completion of all course requirements for the degree (excluding thesis or equivalent). Continued enrollment, for the school's administrative purposes, after all requirements for the degree have been met does not preclude eligibility for optional practical training. A student must complete all practical training within a 14- month period following the completion of study, except that a 24- month additional STEM extension. 4. Form I-20: The Form I-20 is a document issued by SEVP (Student and Exchange Visitor Program)-certified schools, which provides supporting information on a student's F or M status. (Please also see handout (2) Sample Form I-20). 5. Maintaining F-1 student status: When encountering F-1 foreign students, it is very important for practioners to advise F-1 students to maintain his immigration status in the U.S. as most F-1 students obtain insufficient immigration compliance information from their school s international student office, or some students may simply fail to pay enough attention to such information provided by their schools. Practically speaking, Law Offices of Peg Yang 45 Rockefeller Plaza, NYC Peg.Yang@VisaHumanCaptial.com

5 3 with the assistances available from the schools international student offices, F-1 students are unlikely to retain an attorney for immigration compliance matters unless they are already in trouble. As relevant compliance matters are handled by the schools DSOs on a regular basis, an attorney s intervention will most likely become a multiple-party coordination situation where the students may need to be involved too. When this happens, attorneys should proceed carefully when engaging in such situations, especially where in some circumstances the DSOs involved might be not familiar with the relevant immigration rules and regulations. 6. The following are some of the common points that an F-1 student should keep in mind in order to maintain his F-1 status in the U.S.: Do not engage in unauthorized employment; When school is in session, a student can work no more than 20 hours/week; Maintain full-time course load; Must obtain DSO s approval when circumstances warrant dropping below full-time course load; Attend the school that you are authorized to attend, i.e. the school which issued the I-20s to the students; Do not transfer school without permission; Report to DSO for any change of addresses within 10 days; Maintain registration each semester until graduation or transfer to a new school; Follow required procedure for school transfer, moving academic program level and academic program extension; Follow required procedure when applying CPT and OPT; File timely academic program extension applications. 7. H-1B specialty occupation: an occupation that requires (a) theoretical and practical application of a body of highly specialized knowledge, and (b) attainment of a bachelor s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. INA Sec. 214(i)(l) Specialty occupation is defined under 8 CFR Sec (h)(4)(iii)(A) when one or more of the following criteria are met: A bachelor s or higher degree or its equivalent is normally the minimum entry requirement for the position; The degree requirement is common to the industry or, in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree; The employer normally requires a degree or its equivalent for the position; or Law Offices of Peg Yang 45 Rockefeller Plaza, NYC Peg.Yang@VisaHumanCaptial.com

6 4 The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor s or higher degree. 8. Employer-employee relationship: USCIS has interpreted this term to be the conventional master-servant relationship as understood by common-law agency doctrine. USCIS looks at the right to control when considering whether a valid employeremployee relationship is established in an H-1B petition. To establish right to control, the employer has to show that it possesses a sufficient level of control over the employee. However, practioners shall distinguish the right to control from actual control. The USCIS standard hinges on the employer s right to control over the employee. 9. AC21: American Competitiveness in the 21 st Century Act ( AC21 ). There are several immigration rules and provisions under AC21. For H-1B, the most currently relevant AC21 provisions are (1) H-1B worker might extend their stay beyond six years (the maximum period of stay is for H-1B status holders is six years) and (2) H-1B worker might start new employment upon the filing of a non-frivolous change-of-employer petition, and the H-1B worker must have been lawfully admitted to the U.S. and have not engaged in employment without authorization. [114 Stat.1247 (Oct.17, 2000); 2000 HR 5362; 146 Cong. Rec. H (Oct.5, 2000)]. 10. Marginal Enterprise: For E-2 treaty investor visa, the enterprise in which the E-2 treaty investor has invested or is actively investing cannot be a marginal enterprise. A marginal enterprise means an enterprise that does not have the present or future capacity to generate more than minimal living for the investor and his family. 8 CFR Sec (e)(15). 11. TN status: under the North American Free Trade Agreement, Canadian and Mexican citizens are allowed to engage in professional activities in the U.S. (8 CFR Sec ). TN status is similar to H-1B status. The main differences are that (1) there is no limitation of stay for TN status (can be renewed unlimited) and (2) TN visa does not subject to the H-1B annual visa lottery. However, unlike H-1B status, there is no dual intent benefit under TN status, so TN status holders are required to possess nonimmigrant intent. Law Offices of Peg Yang 45 Rockefeller Plaza, NYC Peg.Yang@VisaHumanCaptial.com

7 5 12. EB-5: There are two categories of EB-5 visa programs. One is the basic program with $1 million investment amount requirement. The other is the regional center program with half million US dollar ($500,000) investment amount requirement (job creation projects located in a targeted employment area). Target employment area means (1) an area is outside of a metropolitan statistical area and outside of a city or town with a population of 20,000 or more; or (2) an area which has experienced unemployment of at least 150% of the national average. 8 CFR Sec (e) Both the basic and regional center programs require the investment to be made in a new commercial enterprise (formed after November 29, 1990); the source of funds needs to be lawful; the investment capital is at risk and is committed to the job creation enterprise irrevocably; and a creation of ten jobs for U.S. citizens or authorized immigrant workers. The differences between the two programs are (1) the $1million basic program requires the investor to create 10 full-time jobs in his business in two years (direct job creation), while the regional center program ($500,000) does not limit the 10 jobs to be created in the business, instead, both the jobs created in the business and jobs created from other businesses as a result of the EB-5 business invested (indirect job creation) can be counted toward the required creation of 10 full-time jobs; and (2) the $1million basic program requires the investors to engage in day-to-day management or policy formation of the enterprise invested, while the investors of the regional center programs ($500,000) are passive investors. A two-year conditional permanent residency will be granted to EB-5 investors initially. The investors must petition within 90 days before the 2 nd anniversary of becoming conditional permanent residents to remove the conditions. Upon successful removals of the conditions, EB-5 investors then acquire the lawful permanent residency statuses in the United States. Law Offices of Peg Yang 45 Rockefeller Plaza, NYC Peg.Yang@VisaHumanCaptial.com

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9 10/14/2016 Treaty Countries travel.state.gov U.S. Passports & International Travel Students Abroad U.S. Visa Intercountry Adoption International Parental Child Abduction Contact Us Find U.S. Embassies & Consulates Set Location Set Nationality travel.state.gov > Visas > Treaty Countries Treaty Countries Print Country Classification Effective Date Albania E-2 January 4, 1998 Argentina E-1 October 20, 1994 Argentina E-2 October 20, 1994 Armenia E-2 March 29, 1996 Australia E-1 December 16, 1991 Australia E-2 December 27, 1991 Austria E-1 May 27, 1931 Austria E-2 May 27, 1931 Azerbaijan E-2 August 2, 2001 Bahrain E-2 May 30, 2001 Bangladesh E-2 July 25, 1989 Belgium E-1 October 3, 1963 Belgium E-2 October 3, 1963 Bolivia E-1 November 09, 1862 Bolivia E-2 June 6, 2001 Bosnia and Herzegovina 11 E-1 November 15, 1882 Bosnia and Herzegovina 11 E-2 November 15, 1882 Brunei E-1 July 11, 1853 Bulgaria E-2 June 2, 1994 Cameroon E-2 April 6, 1989 Canada E-1 January 1, Canada E-2 January 1, /6

10 10/14/2016 Treaty Countries Chile E-1 January 1, 2004 Chile E-2 January 1, 2004 China (Taiwan) 1 E-1 November 30, 1948 China (Taiwan) 1 E-2 November 30, 1948 Colombia E-1 June 10, 1848 Colombia E-2 June 10, 1848 Congo (Brazzaville) E-2 August 13, 1994 Congo (Kinshasa) E-2 July 28, 1989 Costa Rica E-1 May 26, 1852 Costa Rica E-2 May 26, 1852 Croatia 11 E-1 November 15, 1882 Croatia 11 E-2 November 15, 1882 Czech Republic 2 E-2 January 1, 1993 Denmark 3 E-1 July 30, 1961 Denmark E-2 December 10, 2008 Ecuador E-2 May 11, 1997 Egypt E-2 June 27, 1992 Estonia E-1 May 22, 1926 Estonia E-2 February 16, 1997 Ethiopia E-1 October 8, 1953 Ethiopia E-2 October 8, 1953 Finland E-1 August 10, 1934 Finland E-2 December 1, 1992 France 4 E-1 December 21, 1960 France 4 E-2 December 21, 1960 Georgia E-2 August 17, 1997 Germany E-1 July 14, 1956 Germany E-2 July 14, 1956 Greece E-1 October 13, 1954 Grenada E-2 March 3, 1989 Honduras E-1 July 19, 1928 Honduras E-2 July 19, 1928 Iran 230 E-1 June 16, /6

11 10/14/2016 Treaty Countries Iran E-2 June 16, 1957 Ireland E-1 September 14, 1950 Ireland E-2 November 18, 1992 Israel E-1 April 3, 1954 Italy E-1 July 26, 1949 Italy E-2 July 26, 1949 Jamaica E-2 March 7, 1997 Japan 5 E-1 October 30, 1953 Japan 5 E-2 October 30, 1953 Jordan E-1 December 17, 2001 Jordan E-2 December 17, 2001 Kazakhstan E-2 January 12, 1994 Korea (South) E-1 November 7, 1957 Korea (South) E-2 November 7, 1957 Kosovo 11 E-1 November 15, 1882 Kosovo 11 E-2 November 15, 1882 Kyrgyzstan E-2 January 12, 1994 Latvia E-1 July 25, 1928 Latvia E-2 December 26, 1996 Liberia E-1 November 21, 1939 Liberia E-2 November 21, 1939 Lithuania E-2 November 22, 2001 Luxembourg E-1 March 28, 1963 Luxembourg E-2 March 28, 1963 Macedonia, the Former Yugoslav Republic of (FRY) 11 E-1 November 15, 1882 Macedonia, the Former Yugoslav Republic of (FRY) 11 E-2 November 15, 1882 Mexico E-1 January 1, 1994 Mexico E-2 January 1, 1994 Moldova E-2 November 25, 1994 Mongolia E-2 January 1, 1997 Montenegro 11 E-1 November 15, 1882 Montenegro 11 E-2 November 15, Morocco E-2 May 29, /6

12 10/14/2016 Treaty Countries Netherlands 6 E-1 December 5, 1957 Netherlands 6 E-2 December 5, 1957 Norway 7 E-1 January 18, 1928 Norway 7 E-2 January 18, 1928 Oman E-1 June 11, 1960 Oman E-2 June 11, 1960 Pakistan E-1 February 12, 1961 Pakistan E-2 February 12, 1961 Panama E-2 May 30, 1991 Paraguay E-1 March 07, 1860 Paraguay E-2 March 07, 1860 Philippines E-1 September 6, 1955 Philippines E-2 September 6, 1955 Poland E-1 August 6, 1994 Poland E-2 August 6, 1994 Romania E-2 January 15, 1994 Serbia 11 E-1 November 15,1882 Serbia 11 E-2 November 15,1882 Senegal E-2 October 25, 1990 Singapore E-1 January 1, 2004 Singapore E-2 January 1, 2004 Slovak Republic 2 E-2 January 1, 1993 Slovenia 11 E-1 November 15, 1882 Slovenia 11 E-2 November 15, 1882 Spain 8 E-1 April 14, 1903 Spain 8 E-2 April 14, 1903 Sri Lanka E-2 May 1, 1993 Suriname 9 E-1 February 10, 1963 Suriname 9 E-2 February 10, 1963 Sweden E-1 February 20, 1992 Sweden E-2 February 20, 1992 Switzerland E-1 November 08, 1855 Switzerland 232 E-2 November 08, /6

13 10/14/2016 Treaty Countries Thailand E-1 June 8, 1968 Thailand E-2 June 8, 1968 Togo E-1 February 5, 1967 Togo E-2 February 5, 1967 Trinidad & Tobago E-2 December 26, 1996 Tunisia E-2 February 7, 1993 Turkey E-1 February 15, 1933 Turkey E-2 May 18, 1990 Ukraine E-2 November 16, 1996 United Kingdom 10 E-1 July 03, 1815 United Kingdom 10 E-2 July 03, 1815 Yugoslavia 11 E-1 November 15, 1882 Yugoslavia 11 E-2 November 15, 1882 Country Specific Footnotes 1. China (Taiwan) - Pursuant to Section 6 of the Taiwan Relations Act, (TRA) Public Law 96-8, 93 Stat, 14, and Executive Order 12143, 44 F.R , this agreement which was concluded with the Taiwan authorities prior to January 01, 1979, is administered on a nongovernmental basis by the American Institute in Taiwan, a nonprofit District of Columbia corporation, and constitutes neither recognition of the Taiwan authorities nor the continuation of any official relationship with Taiwan. 2. Czech Repubilc and Slovak Republic - The Treaty with the Czech and Slovak Federal Republic entered into force on December 19, 1992; entered into force for the Czech Republic and Slovak Republic as separate states on January 01, Denmark - The Treaty which entered into force on July 30, 1961, does not apply to Greenland. 4. France - The Treaty which entered into force on December 21, 1960, applies to the departments of Martinique, Guadeloupe, French Guiana and Reunion. 5. Japan - The Treaty which entered into force on October 30, 1953, was made applicable to the Bonin Islands on June 26, 1968, and to the Ryukyu Islands on May 15, Netherlands - The Treaty which entered into force on December 05, 1957, is applicable to Aruba and Netherlands Antilles. 7. Norway - The Treaty which entered into force on September 13, 1932, does not apply to Svalbard (Spitzbergen and certain lesser islands). 8. Spain - The Treaty which entered into force on April 14, 1903, is applicable to all territories. 9. Suriname - The Treaty with the Netherlands which entered into force December 05, 1957, was made applicable to Suriname on February 10, United Kingdom - The Convention which entered into force on July 03, 1815, applies only to British territory in Europe (the British Isles (except the Republic of Ireland), the Channel Islands and Gibraltar) and to "inhabitants" of such territory. This term, as used in the Convention, means "one who resides actually and permanently in a given place, and has his 233 domicile there." Also, in order to qualify for treaty trader or treaty investor status under this treaty, the alien must be a national of the United Kingdom. Individuals having the nationality of members of the Commonwealth other than the United 5/6

14 10/14/2016 Treaty Countries Kingdom do not qualify for treaty trader or treaty investor status under this treaty. 11. Yugoslavia- The U.S. view is that the Socialist Federal Republic of Yugoslavia (SFRY) has dissolved and that the successors that formerly made up the SFRY - Bosnia and Herzegovina, Croatia, the Republic of Macedonia, Slovenia, Montenegro, Serbia, and Kosovo a continue to be bound by the treaty in force with the SFRY and the time of dissolution. Additional Information for Reciprocity Reciprocity: What's New Temporary Reciprocity Schedule Country Acronyms Presidential Proclamations Terrorist Designation Lists State Sponsors of Terrorism Treaty Countries Visa Issuing Posts In the United States Discover America FAQs: About Visas - the Basics About Us Visa Newsroom Reports and Statistics Law and Policy Find a U.S. Embassy or Consulate Contact Us Careers Consular Notification and Access STAY CONNECTED Dipnote Blog Facebook Youtube RSS travel.state.gov U.S. Passports & International Travel Students Abroad U.S. Visa Intercountry Adoption International Parental Child Abduction Privacy Copyright & Disclaimer FOIA No FEAR Act Data Office of the Inspector General USA.gov GobiernoUSA.gov This site is managed by the Bureau of Consular Affairs, U.S. Department of State /6

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19 1 Representing the Startup Business in New York 2016 When Startup Cross National Boundaries: ----Immigration Issues Involving Overseas Partners The proposed International Entrepreneur Rule Peg Yang, Esq. This proposed international entrepreneur rule was publicized by USCIS on 08/31/2016 for the public to submit comments. The comment period would end on 10/17/2016 (45-day comment period). The legislative authority rested on the executive branch s discretionary authority to parole individuals into the US, on a case-by-case basis, for urgent humanitarian reasons or significant public benefits. INA 212(d)(5) and 8 U.S.C.1182(d)(5). A large number of startup entrepreneurs have been looking forward to seeing some changes or new rules on immigration laws to specifically address the reality issues faced by these startup entrepreneurs. Finally, the proposed international entrepreneur rule is here in front of us. This proposed rule proposed to temporarily parole some of the startup entrepreneurs into the U.S. to assume an active and central role in the growth of the startup, with an initial grant of 2 years and may be extended up to an additional of 3 years. However, this proposed rule does not create any new category of immigration status for any startup entrepreneur. To obtain such a temporary parole, both the startup entities and the entrepreneurs are required to meet the following criteria: 1. Requirements for the Initial Parole (2 years): (1) The entrepreneur owns 15% or more ownership interest of the startup entity; (2) The entrepreneur assumes a central and active role in the startup entity; (3) The startup is created within the 3 years immediately preceding the filing of the parole application (* May be considered as a startup entity if it was created within 3 years immediately preceding the receipt of the relevant grant(s), award(s), or investment(s).) (4) The startup entity received significant capital investment from the following sources: (a) $100,000 or more funding received 365 days immediately preceding the filing of the parole application, from a federal, state, or local government entity that regularly Law Offices of Peg Yang 45 Rockefeller Plaza, NYC Peg.Yang@VisaHumanCaptial.com

20 2 provides such funding/grants to startup entities (Excluding any contractual commitment for goods or services). Or, (b) $345,000 or more capital investment, received 365 days immediately preceding the filing of the parole application, from established VCs, angel investors or startup accelerators with established records of successful investments. 2. Requirements for Re-Parole (an additional period of up to 3 years): (1) Continuation of startup entity; (2) The entrepreneur owns at least 10% of the ownership interest of the startup entity; (3) The entrepreneur continues his/her active and central role in the operation and future growth of the startup entity; (4) One of more of the following proof of high growth and job creation potential: (a) An additional of $500,000 or more qualifying funding (can be a combination of both qualified US investor and governmental grants); (b) Reached $500,000 or more annual revenue, together with an average of actualized revenue growth of 20% or more during the initial parole period; and/or (c) Generated 10 or more full time jobs to US workers in the initial parole period. (Note: * Re-parole cannot be afforded to more than 3 entrepreneurs of one qualifying startup entity.) 3. Additional Points for both Initial Parole and Re-Parole: (1) USCIS will consider alternative evidence when the application partially satisfies one or more of the above listed requirements along with alternative evidence showing the startup entity s substantial potential for rapid growth and job creation. (2) Applicant entrepreneur can receive incidental work authorization to the startup entity upon approval of his/her parole application. (3) Spouse and children can obtain dependent status to come to the US. (4) Spouse is allowed to apply work authorization. (5) No appeals and motions to reopen will be considered by USCIS if the parole application is denied. (USCIS may re-open or reconsider a decision on its own motion.) 4. Definitions under this Proposed International Entrepreneur Rule: (1) Qualified investment: in good faith and not an attempt to circumvent relevant laws. Law Offices of Peg Yang 45 Rockefeller Plaza, NYC Peg.Yang@VisaHumanCaptial.com

21 3 Shall not include: An investment from relatives (parents, spouse, brother, sister, son or daughter); any Corp, LLC, Partnership or other entity in which the entrepreneur or his relative directly or indirectly has any ownership interest. (2) Qualified Investor U.S. citizen or green card holders; or an organization located in the US and operates under US laws with its majority of ownership interested owned and controlled, directly or indirectly, by US citizens or green card holders. (3) Established Records of Successful Investments by the qualified investors: (a) Records showing that the investor made $1 million or more investments in startup entities in exchange for equity or convertible debt in 3 or more separate calendar years within a 5-year period of time span, and (b) At least 2 such invested startup entities each created 5 or more US jobs; or generated $500,000 or more in revenue with an average of 20% or higher annualized revenue growth. (4) U.S. Business Entity: Any corporation, limited liability company, partnership, or other entity that is organized under federal law or the laws of any state, and that conducts business in the US, that is not investment vehicle primarily engaged in the offer, purchase, sale or trading of securities, futures contracts, derivatives or similar instruments. (5) Full-time employment: A paid position within in the US that requires a minimum of 35 working hour per week that has been filed for at least 1 year. But it does not include combination of part-time positions. (6) Qualifying Employee: U.S. citizens, green card holders, other immigrant lawfully authorized to be employed in the US, excluding applicant entrepreneur and his relatives, such as spouse, parent, brother, sister, son or daughter. Law Offices of Peg Yang 45 Rockefeller Plaza, NYC Peg.Yang@VisaHumanCaptial.com

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