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Igniters MeetupImmigration Hacking: Solving Immigration puzzle for foreign-born Entrepreneurs
Sweta Khandelwal
Welcome! Immigration Hacking: Solving Immigration Puzzle for Foreign-born Entrepreneurs
Employment-based US Visas for founders, their start-ups and their employees
February 21, 2014, Hacker Dojo, Mountain ViewSweta KhandelwalPrincipal AttorneyLaw Office of Sweta Khandelwal
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Introductions!
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
• Immigrant myself! • Entrepreneur too! Owner/Principal
Attorney- Law Office of Sweta Khandelwal-• Chair, Silicon Valley Chapter, American
Immigration Lawyers Association (AILA) • Advocacy & Media Co- Liaison, AILA-SCV
• Understanding of how US Immigration laws intersect with entrepreneurship
• Overview of various work visas that can be used by foreign entrepreneurs and their start-ups
• Appreciate how seemingly small changes in fact patters can effect available visa options
Disclaimer
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
This presentation is not intended to give legal advice. It is for informational purposes only. It is geared to help participants get a basic understanding on how immigration law and practice intersect with entrepreneurship.
• Importance of Immigration
• Key non-immigrant work visas (NIV) or temporary visas
• Key immigrant work visas (IV) or permanent visas or Green Cards
• Case Study: Apply elements to potential scenarios
Agenda/ Roadmap
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Why Immigratio
n
USCIS & Entrepreneur
s
Approach
Potential Problem
Description
•Get creative• Explore all options• Be-proactive• Stay informed
• 25% of high-tech companies founded between 1995-2005 had at least one immigrant founder
– Founders on right visa to ensure continuity of the company
– Able to hire top global talent
• Entrepreneurs in Residence Initiative– Shift in policy towards entrepreneurs– Old Wine in a New Bottle-Old Laws, New Business
• Creative & Customized – no one size fits all– Structure business accordingly– Plan really ahead
• Lack of standardization in applying laws– Laws have “gray areas”
• Best immigration decisions are usually not good for business
Entrepreneurs, Start-ups & ImmigrationWhy is knowledge of US Visas critical to foreign entrepreneurs?
Notes: (1) TBD(2) TBD
Source: Source 1; Source 2; Source 3
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Area
• Importance of Immigration
• Key Non-immigrant work visas
• Key Immigrant Work Visas
• Case Study: Apply elements to potential scenarios
Agenda/ Roadmap
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
•Useful in the preliminary stages•Limited purpose •No employment in the US•No remuneration
•Practical training- up to 12 months; +17 (STEM)•Full time & Part-time; multiple jobs•No minimum wage required
•Available to Treaty Nationals (TN)•Investor or Managers or Critical Employee•At least 50% of business must be owned by TN•Business must be controlled by TN
Non Immigrant/Temporary Visa OptionsRelatively easy, quick and economical!
VisitorsB-1& Visa
Waiver Program
StudentsF-1 & OPT
Investors & their E’ees
E-2
1
2
3
Type of visa
Notes: (1) TBD(2) TBD
Source: Source 1; Source 2; Source 3
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Typical purpose/ applicability
Not applicable for India and China
• Existing foreign business can set up “affiliated” US business
• E’ee employed by overseas business for at least 1 year out of the preceding 3 years
• Managers(L-1A) & Special. Knowledge workers (L-1B)
• Used for “Specialized Occupation” workers• Foreign National must have a Bachelor’s Degree• Only NIV for US Companies!
• Available for people in the arts, sciences or business who are at the “top of their fields”
• Must meet at least 3 criterion prescribed in law
Non Immigrant/Temporary Visa OptionsRelatively easy, quick and economical!
Inter-Co. TransferL-1 Visa
Professional Worker
H-1B Visa
Extra-ordinary Ability
O-1 Visa
4
5
6
Type of visa
Notes: (1) TBD(2) TBD
Source: Source 1; Source 2; Source 3
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Typical purpose/ applicability
Visitor Visas: B-1 & Visa Waiver Program (VWP)
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Temporary visitor for businessBoth B-1 & VWP to be used for limited purposes
• Negotiate contracts
• Attend meetings conferences
• Independent research
VWP• 37 participating
countries• Cannot change/
adjust status• 90 Day Limit• Can still apply for
B-1
Who is eligible What it takes to succeed
What's great? What sucks
Must demonstrate non-immigrant intent Cannot be employed in the US No remuneration to be received
Convenient, economical
Quick process Great during
early/planning stages
Law unclear as to what activities are permitted and what are not
No appeal against denial-must reapply
Student Visa: F-1 & OPT
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Who is eligible
Those who are studying full time (Grad. Undergrad. Ph.D. in accredited schools
Generally, no employment while student is in school
Up to 12 months of training/work permit after completion of program
17 additional months for STEM graduates
STEM only for E-Verified Companies
What it takes to succeed
What's great? What sucks
Completion of your academic program! Importance of accredited/reputed schools Cannot be out of job for more than 90 days
during OPT period STEM extension must be timely applied
Great for start-ups-incubator/accelerator
No wage requirement Full time, part-time,
multiple jobs Cap-Gap solved (H-
1B)
Nothing-It’s a great option!
Limited duration-29 months max; must then move to another visa
Timing issues
Visa for Investors & their Employees: E-2
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Who is eligible
Those from E-2 country list-Treaty Nationals
Treaty Nationals must own at least 50% of the business
Treaty Nationals must control the enterprise
FN can be Investor/ Exec./Manag./Special Know.
IF FN is Investors - develop & direct the business
Generally, all nationals must be from the same country
If 2 nationalities involved, both must have equal ownership & control
What it takes to succeed
What’s Great? What sucks
Investment that is “at risk”-irrevocably committed Business is substantial; more than marginal return Great business plan required Source of funds must be legitimate-gifts, salary, o.k Money could have been earned in US or abroad Loans-only those secured by personal assets
No high threshold investment$
Can use intangible assets if properly valued
Spouse of E-2 can work
Problem with VC funding-control/ownership
No set min. $ investment-unclear
No immigrant intent-no path towards GC
Inter-Company Transfer: L-1 Visa
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Who is eligible
Foreign business can set up an “affiliated” US business
Affiliate relationship defined in law
FN must be employed by the overseas company for at least 1 yr. in the preceding 3 years
Both owner/employee may be eligible
New Office vs. Established Office
What it takes to succeed
What's great? What sucks
Eligibility requirements critical Both Foreign and US Company must be in
business Evidence of relationship between the two
companies to be extensively documented
Great for overseas co. No min. salary reqd. No fixed no. of visas CEO can spend time
in US and home country
GC for L-1A-EB-1 Spouse can work
L-1A for owners & small business is tougher
New Office L-1 req. Proving 1 year
employment when no salary
What sucks
Specialty Occupation Visa: H-1B
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Who is eligible
Visa for Professionals Position must be a
specialty occupation Foreign National must
have a Bachelor’s Degree
Visa tied to the sponsor company
What it takes to succeed
What's great?
An organization structure that establishes an employer/employee relationship b/w US business & Foreign National (FN)
Proof that there is enough work/specialty occupation for the duration of the petition
A great story!
Once FN is on H-1B, can change between employers with relative ease
Part-time and full time
Limited visas-Quota For founders, e’er/e’ee
relationship is hard Specialty occupation
for founders is a challenge
Minimum salary-high Spouse cannot work
TN Visa-Professionals Canadians & Mexicans-no self
employment
Visa for Extra-Ordinary Ability: O-1 Visa
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
An individual who has extra-ordinary ability in the arts, sciences and business
Sustained national/international acclaim
Distinction in the field Visa focus on person,
as opposed to company
Must show that FN meets at least 3 of the eligibility criterion
Who is eligible What it takes to succeed
What’s great? What sucks
• National/Internationally recognized award• Membership in assoc. in the field based on
ability• Published material in trade journal or other
media• Judging the work of others• Scholarly articles in the field; original
contribution• Prestigious org., critical capacity, high salary
No Quota No restriction on
salary Renewed indefinitely A path to GC-EB-1 Room for creative
lawyering!
Burden of proof is high Not everyone can
qualify
• Importance of Immigration
• Key Non-immigrant work visas
• Key Immigrant Work Visas
• Case Study: Apply elements to potential scenarios
Agenda/ Roadmap
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Three categories; two relevant here Extraordinary Ability Workers –O-1? Multinational Executive & Managers-L-1?
Not really useful for entrepreneurs
Investor based GCInvestment must meet all established criterion$500,000-$1,000,000
Immigrant/Permanent Visa OptionsChallenging, time consuming, and expensive!
EB-1
EB-2/EB-3
EB-5
1
2
3
Type of visa
Notes: (1) TBD(2) TBD
Source: Source 1; Source 2; Source 3
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Eligibility requirements
Employment Based Immigrant Visa: EB-1
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Available to three groups:
Extraordinary Ability (similar to O visa);
Multinational Exec./Man. (relevant for those on L-1A visas);
Professors and Researchers
Who is Eligible What it takes to succeed
What's great? What sucks
Extraordinary Ability-outstanding achievers Multinational Executives& Managers-L-1A-must
show that FN has managerial duties and supervises over professionals
No Labor Cert. required
For Extr. Ability no employer is required
Visa Bulletin is current-India & China
Burden of Proof –high-higher than NIV
Employment Based Immigrant Visa: EB-52
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Any investor willing to invest at least $1
million of their own funds; or $500,000 if investment is in a TEA
Investment must be in a New Commercial Enterprise
The business must employ at least 10 US workers full time
Investor must be involved in day to day management of the company
Conditional GC issued for 2 years
Who is Eligible What it takes to succeed
What's great? What sucks
Demonstrate the source of funds-own and legit Two years to show that all conditions have been
met A comprehensive business plan required Loans o.k so long as secured by personal assets Investment must be “at risk”
GC for investor & family
$500,000 Invest. can be made in Regional Centers while investor works on his/her own business
One of the easiest way’s for a GC
Model not suitable for entrepreneurs
Requires investment of own money in business
• Importance of Immigration
• Key Non-immigrant work visas
• Key Immigrant Work Visas
• Case Study: Apply elements to potential scenarios
Agenda/ Roadmap
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Launching a cool mobile payments business in France
Clemente –French Application Developer Par Excellence
Moracio–Italian Brillianto Hacker
Jean Paul–French Technologist with business mindset
• Bachelors Engineering- wants to do an MBA in the US
• No formal degree in Engineering- Wants to get one in the US
Status of their start-up
Working on an IPhone/Android app. that they claim will revolutionize the way handheld devices are used to make payments
Bootstrap efforts /money to create a beta version
Incorporate a business entity in France
• Bachelors degree in Engineering; considering a Master’s
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Successful Trip to the US Clemente and Moracio enter the US on the
Visa Waiver Program Participate and win $100000 in the grand
hackathon-Can they? Incorporate a company in the US- Should
they?
Chong: Chinese PhD student
Dr. Daring- Chong’s advisor and USC
Santiago Mexicano:Eng. graduate looking for a job
“Keen on the
business- tell me more” “Have
contacts with VC :
Can I help”
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Win
hac
kath
onM
eet
som
e pe
ople
Best for Business vs. Best for ImmigrationDecisions to be made
Structure: Who will be CEO Investment: How little/much can we invest
? Funding: Can we get VCs to show
interest ? School: Can we go to Grad/ MBA school?
Can we work in the business while at school?
Payouts: Salary ? Dividend? None? Business continuity: someone in France to
manage? Travel between US and France?
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
What are available visa options?
Scenario 1: Trio do not invest own $ in the business
Clemente – French Developer; goes for MBA
Moracio–Italian Brillianto Hacker thinks school not worth it!
Jean Paul–French Technologist with business mindsetcomes to the US to meet VCs and getsDr. Daring-USC on BOD –VC
This is what they do
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Clemente No Change of Status from VWP to F-
1 F-1; 12 months OPT; then Choice: O-1 vs. H-1B OPT then H-1B
• Cap/Gap• Quota
Moracio O-1-CEO?Jean Paul B-1 or VWP for now H-1BSantiago May work on TNProblems with H-1B?Remember-H-1B must be paid a certain salary
What about the E-2?
Now, What are available visa options?
Scenario 1: Trio do not invest own $ in the business
Clemente – Application Developer drops plan for school
Moracio–Italian Brillianto Hacker decides to opt for formal education
Jean Paul–French Technologist with business mindsetmanage the business from France-gets French VC
But they do things differently
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
1. Moracio Can’t join co. unless finishes school
(Eng.) After school, 29 months OPT2. Clemente Can be an E-2 employee aslong as 50% co. owned by French nationals Moracio can work on OPT & have a
minor stake in the company- Problem with dual nationality if
Moracio wants to come in on E-2; H-1B better?
3. Jean Paul Can come on E-2 L-1 after at least a year so long as
French entity is active and “affiliated” with US co.
4. Santiago May work on TN
What about the E-2-now that we have VC?
What are available visa options?
Scenario 2: Trio do invest own $ in the business
Clemente – Application Developer $
Moracio–Italian Brillianto Hacker $$
Jean Paul–French Technologist with business mindset $
This is what they do
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
1. E-2 for allSo long as business in owned and controlled equally by nationals of both Treaty countries
2. H-1B for anyWill benefit if at least 1 USC on BOD; and H-1B holder does not have majority stake
3. O-1 for Clemente & Moracio Possible. O-1 focused on individual more than company
4. Jean PaulL-1 after a year; may shuttle b/w US & France so long as majority work/time in US
In all scenarios Santiago may work on TN
• To win a 45 minutes free consultation (valid for the next 6 months), drop your business card and participate in a raffle!
• Visit my website at www.khandelwalaw.com. It has relevant and practical insights, informational video’s, FAQ’s, and more.
• For specific questions about your case, email me at [email protected]
It’s not the end!There is a ton of useful stuff still available-here’s where & how
• Contact details are also available by scanning the QR code below:
3333 Bowers Avenue Suite 130 Santa Clara CA 95054P: 001 408 200 0972 C: 001 408 505 2065 Fax: 001 408 624 4527
Email: [email protected] Web: www.khandelwalaw.com
Hosted by:
www.vorkspace.com
- Workspace of the Future
Sponsored by:
Igniters MeetupImmigration Hacking: Solving Immigration puzzle for foreign-born Entrepreneurs
Sweta Khandelwal