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Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

Aug 29, 2014

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Learn about Immigration issues for Startups from Sweta Khandelwal, one of the top immigration lawyer in the valley, awarded Top 40 Immigration Lawyers under 40 and Chair of the SCV Chapter of American Immigration Lawyers Association, the largest body of Immigration practitioners in the US.

Put your Legal Hack on and learn what you need to get your billion dollar idea off the ground !

• Know how foreign born entrepreneurs and start-up business can stay in the United States, start and work for their company-without being deported!
• How US business’ can hire and retain top notch foreign born talent.

• Know about Entrepreneurial Visa Options: E-2, L-1, H-1B, and O-1 Visas and Investor Based Green Card Options: EB-5 Immigrant Visa



Knowledge of US visa laws is critical to the success, continuance and growth of most Silicon Valley business’ and obtaining the correct visa is often the first hurdle faced by foreign founders. Until the archaic US immigration system is reformed, we have little choice except being creative in using old visas to suit new- age business. So let’s put our legal hack on!
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Page 1: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

Hosted by:  

www.vorkspace.com

- Workspace of the Future

 

Sponsored by: 

Igniters MeetupImmigration Hacking: Solving Immigration puzzle for foreign-born Entrepreneurs

Sweta Khandelwal

Page 2: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 3: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 4: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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.

Page 5: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

• 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

Page 6: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 7: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

• 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

Page 8: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

•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

Page 9: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

• 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

Page 10: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 11: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 12: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 13: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 14: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 15: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 16: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

• 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

Page 17: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 18: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 19: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 20: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

• 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

Page 21: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 22: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 23: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 24: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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?

Page 25: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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?

Page 26: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

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

Page 27: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

• 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

Page 28: Igniters meetup: Immigration hacking solving immigration puzzle for foreign-born entrepreneurs

Hosted by:  

www.vorkspace.com

- Workspace of the Future

 

Sponsored by: 

Igniters MeetupImmigration Hacking: Solving Immigration puzzle for foreign-born Entrepreneurs

Sweta Khandelwal