Immigration Concerns When A Foreign National Is Involved With A Start-Up

Transcription

1 Immigration Concerns When A Foreign National Is Involved With A Start-Up Kevin J. Fitzgerald Foley Hoag, LLP 155 Seaport Boulevard Boston, MA kfitzgerald@foleyhoag.com Presentation Title 1

2 PRELIMINARY ACTIVITIES TO ESTABLISH THE COMPANY ARE YOU AN EMPLOYEE OF THE START-UP? 1. What constitutes employment 2. What constitutes compensation a. Stock/ownership interest b. Deferred compensation 3. If an employee, must have authorization to work for the company 4. Company must complete a Form I-9 Employment Eligibility Verification 5. Penalties for unauthorized employment 6. Possible bases for legal employment Presentation Title 2

3 F-1 STUDENT CURRICULAR PRACTICAL TRAINING 1. Can be authorized by the designated official at the school 2. Must be part of the academic program 3. Does not require USCIS authorization 4. No specific wage level requirements other than minimum wage Presentation Title 3

4 1. Authorized by the school for up to 12 months F-1 POST-COMPLETION OPTIONAL PRACTICAL TRAINING 2. Must file application with USCIS and get it approved, which takes about 2-3 months 3. Permits work in any position which is reasonably connected to the field of study 4. No specific wage level requirements other than minimum wage 5. Can be extended an additional 17 months if (a) degree is in a qualifying science, technology, engineering or math field and (b) the employer registers for E-Verify 6. Can then change to other employment authorized status Presentation Title 4

5 H-1B NONIMMIGRANT STATUS 1. Basic standard: For professional level employees working on a temporary basis who have at least a Bachelor s degree in a specific field and will be working in a position that would normally require a degree in that field 2. Basic process: a. Labor Condition Application filed with Department of Labor in which employer certifies it is paying prevailing wage and working conditions b. H-1B petition filed with USCIS with supporting documentation establishing foreign national is a professional c. Must certify that no exposure of foreign national to export controlled technology d. Normal USCIS time for processing approximately 3-4 months e. H-1B cap issue f. If approved, valid for 3 years with a further 3 year extension 3. Special issues with getting an H-1B Petition approved for a start-up a. Establishing the viability of the company and the job offer b. Employer-employee relationship c. Payment of prevailing wage d. Cannot withhold salary e. Cap-related timing issues Presentation Title 5

6 OTHER SPECIAL NONIMMIGRANT VISA CATEGORIES 1. North American Free Trade Agreement a. applies only to citizens of Canada and Mexico b. applies only to certain specific professions listed in NAFTA c. can obtain status at border to enter to work for U.S. company d. no need for prior filings with USCIS e. can be valid for up to 3 years at a time 2. E-3 Visas for Australians nationals - substantive requirements similar to H-1B visa, but no advance petition requirement and not subject to any cap 3. E-1 for Treaty Traders and E-2 for Treaty Investors a. based on treaty of trade/commerce between US and foreign country b. foreign ownership of company c. individual must have same nationality as foreign company d. entering to oversee substantial foreign trade or investment 4. H-1B for nationals of Singapore or Chile - like an H-1B but subject to different cap 5. O-1 for foreign nationals with extraordinary ability in the sciences, arts, education or business Presentation Title 6

7 PERMANENT RESIDENT STATUS BASED ON JOB OFFER Step 1 - Labor Certification under PERM 1. Purpose is to test U.S. labor market for qualified, available employees 2. Define job duties and minimum job, which serve as the screen for U.S. applicants 3. Get prevailing wage determination from DOL 4. Complete required recruitment prior to filing Application 5. Screening of applicants 6. Electronically file Labor Certification Application with DOL 7. Certain special situations exempted from Labor Certification a. extraordinary ability b. outstanding professors and researchers c. National Interest Waiver Step 2 I-140 Preference Petition filed with USCIS a. Preference categories b. Backlogs Step 3 - I-485 Application For Adjustment Of Status to permanent residence - to ensure that there is nothing about the individual that would make him/her unacceptable as a permanent resident Presentation Title 7

8 Immigration Concerns When A Foreign National Is Involved With A Start-Up Kevin J. Fitzgerald Foley Hoag, LLP 155 Seaport Boulevard Boston, MA kfitzgerald@foleyhoag.com Presentation Title 8