Скачать презентацию February 17 2010 US Corporate Business Immigration Скачать презентацию February 17 2010 US Corporate Business Immigration

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February 17, 2010 US Corporate & Business Immigration Law Presented to German American Business February 17, 2010 US Corporate & Business Immigration Law Presented to German American Business Association Whittier Law School Costa Mesa, California

David Hirson, Partner Fragomen, Del Rey, Bernsen & Loewy, LLP 18401 Von Karman Ave. David Hirson, Partner Fragomen, Del Rey, Bernsen & Loewy, LLP 18401 Von Karman Ave. , 2 nd Floor Irvine, CA 92612 Office: +1 949 261 -0209 Direct: +1 949 660 -3504 Fax: +1 949 261 -2821 Email: [email protected] com www. fragomen. com Rico Fontana, Senior Manager IHR – Global Immigration Lead Fluor Enterprises, Inc 949 -349 -7803 rico. [email protected] com 1

Topics for Discussion to Include: • U. S. Immigration Law, 2009 updates • How Topics for Discussion to Include: • U. S. Immigration Law, 2009 updates • How the economy has and may impact the immigration law and U. S. businesses working with immigrants of all levels • The impact on business • CIR – Comprehensive Immigration Reform in 2010? • Germany Specific Issues - Visa Waiver Program - ESTA - E-1 / 2 Treaty Visas 2

About Fragomen • Single Focus - Largest firm in the world exclusively dedicated to About Fragomen • Single Focus - Largest firm in the world exclusively dedicated to providing global immigration services - Resources and technology designed specifically for immigration services • Scalable - 36 offices in 14 countries, 250 attorneys, 800+ professionals - Strategic network of 100+ in-country co-counsel • Partnering - Custom representation tailored to our clients’ needs - Flexible service model 3

Global Coverage Canada United Kingdom France Spain United States Russia Belgium Germany Switzerland Italy Global Coverage Canada United Kingdom France Spain United States Russia Belgium Germany Switzerland Italy Japan South Korea Israel Mexico China UAE India Costa Rica Venezuela Thailand Singapore Taiwan Hong Kong Malaysia Brazil Peru Australia Chile South Africa Argentina Fragomen Office Core Strategic Partner Planned Office 4 New Zealand

Recognition • Corporate Immigration Law Firm of the Year – 2005, 2006, 2007, 2008, Recognition • Corporate Immigration Law Firm of the Year – 2005, 2006, 2007, 2008, 2009 • Best Lawyers - Ranked #1 in the United States in Immigration Law • Chambers US and Chambers Global 2008 - Highest possible ranking in immigration category • UK Lawyer top ranked Immigration Firm • Professional Recognition 5

Involved Government Agencies Department of Homeland Security: 1. United States Citizenship and Immigration Services Involved Government Agencies Department of Homeland Security: 1. United States Citizenship and Immigration Services - USCIS (formerly the Immigration & Naturalization Service – INS or BCIS) 2. Immigration & Customs Enforcement – ICE 3. Customs & Border Protection – CBP 4. CIS Ombudsman • Department of Labor • Department of State (DOS): - U. S. Embassies - U. S. Consulates • 6

Basic Concepts • Immigrants vs. non-immigrants • Dual intent • Petitions, visas, & status Basic Concepts • Immigrants vs. non-immigrants • Dual intent • Petitions, visas, & status • Quotas & chargeability • Preservation of family unity • Priority workers • Preference classification 7

Nonimmigrants • Coming to the U. S. temporarily • Retain residence abroad • Dual Nonimmigrants • Coming to the U. S. temporarily • Retain residence abroad • Dual intent - only for H’s and L’s • “Alphabet Soup” - A-V 8

Immigrants • “Green card holders” = “permanent residents” = “immigrants” • Coming to U. Immigrants • “Green card holders” = “permanent residents” = “immigrants” • Coming to U. S. permanently • Numerically limited - Visa bulletin - Priority date • Can become U. S. citizens after 3 - 5 years 9

Family-Based Permanent Residence • Immediate relatives (spouses, minor children & parents of U. S. Family-Based Permanent Residence • Immediate relatives (spouses, minor children & parents of U. S. citizens) • Other close family members of citizens or permanent residents, including: - Unmarried sons & daughters of citizens (over age 21) - Married sons & daughters of citizens - Spouses, children & unmarried sons/daughters of permanent resident aliens - Brothers & sisters of citizens 10

Employment-Based Permanent Residence: 2 or 3 -Step Process • Labor certification PERM (where required) Employment-Based Permanent Residence: 2 or 3 -Step Process • Labor certification PERM (where required) - Filed by employer on behalf of foreign national - Processed by U. S. Department of Labor • Immigrant preference petition - Filed by employer - Self petitioning possible in limited cases - Processed by USCIS • Adjustment of status or consular processing - Filed by the foreign national & family members 11

3 Steps to a Green Card 1. Labor certification - PERM – – 2. 3 Steps to a Green Card 1. Labor certification - PERM – – 2. filed by employer on behalf of foreign national employee processed by U. S. Department of Labor (DOL) DOL regulated test of the local US job market involves lay-off assessment (of relevant position/location within the 6 months before filing with the DOL) Immigrant preference petition (I-140) – – 3. filed by employer on behalf of foreign national employee based on approved labor certification (Step 1 above) Adjustment of status (I-485) – – filed by the foreign national & family members based on approved labor certification and I-140 petition (Steps 1 & 2 above) NOTE: Lay-off analysis only relevant in Step 1 12

Employment-Based Categories EB-1: Priority workers EB-2: Advance-degree professionals & aliens of exceptional ability* EB-3: Employment-Based Categories EB-1: Priority workers EB-2: Advance-degree professionals & aliens of exceptional ability* EB-3: Professional, skilled & unskilled workers* Schedule A workers EB-4: Special immigrants EB-5: Employment creation (* labor certification required) 13

EB-1: Priority Workers • Persons of extraordinary ability (similar to the O-1 nonimmigrant category) EB-1: Priority Workers • Persons of extraordinary ability (similar to the O-1 nonimmigrant category) • Outstanding professors & researchers • Multinational executives/managers • Labor certification not required 14

EB-2: Advanced-Degree Professionals & Persons of Exceptional Ability • Job requires advanced degree (Master’s EB-2: Advanced-Degree Professionals & Persons of Exceptional Ability • Job requires advanced degree (Master’s & above) or Bachelor’s degree + 5 years progressive professional experience • Labor certification required • Persons of exceptional ability in science, art or business (labor certification forms filed w/ I-140 petition) • Waiver of labor certification when employment is in the “National Interest” 15

EB-3: Professionals, Skilled Workers, Other Workers • Most commonly used, historically highest demand • EB-3: Professionals, Skilled Workers, Other Workers • Most commonly used, historically highest demand • Professionals: position requires bachelor’s degree or foreign equivalent degree • Skilled workers: position requires minimum 2 years experience and/or training • Other workers: limited to 10, 000 • Labor certification required in all cases 16

Impact of Termination on Nonimmigrant Visa Status • Options available to terminated employees - Impact of Termination on Nonimmigrant Visa Status • Options available to terminated employees - Depart U. S. - Change of status to another visa classification - Secure position with another U. S. based employer • Timing - No “grace period” in the Regulations - Unlawful presence issues - Withdrawal of petition • Particular considerations for H-1 B employees - LCA issues - Return transportation • Dependents 17

Immigration Update I-9 Compliance • ICE and DOL audits are on the increase • Immigration Update I-9 Compliance • ICE and DOL audits are on the increase • Several criminal prosecutions of employers • Administrative fines can be substantial • Check on your system of accurately completing and maintaining the I-9 forms in your company • Do self audits or have independent audits by counsel routinely AND before any inspection by ICE or DOL • Consider outsourcing to an I-9 service organization • USCIS through the OMB extended approval of Form I-9 to Aug. 31, 2012 • Employers may use the Form I-9 with the revision date of either Aug. 7, 2009 or Feb. 2, 2009 18

Immigration Update (cont. ) E-Verify • On September 8, 2009, DHS began implementing a Immigration Update (cont. ) E-Verify • On September 8, 2009, DHS began implementing a rule that requires certain federal contractors to enroll in and use the E-Verify system to verify the employment eligibility of new employees, as well as current employees who are assigned to work on a federal contract. 19

Immigration Update (cont. ) H-1 B Audits • USCIS Fraud Unit Site Visits Continue Immigration Update (cont. ) H-1 B Audits • USCIS Fraud Unit Site Visits Continue • Over the past year, employers have continued to experience unannounced site visits by USCIS’ Office of Fraud Detection and National Security • FDNS conducts site inspections to verify the information that employers provide in their immigration petitions. • Site visits have focused mostly on H-1 B petitions, though inquiries on other types of cases are possible. • Some employers have reported receiving multiple site visits, each pertaining to a separate petition and foreign worker. 20

The Impact of the Economy on U. S. Immigration I. In A Weakening Economy The Impact of the Economy on U. S. Immigration I. In A Weakening Economy • Fewer jobs – Higher unemployment. November 2009 10. 2% • Lower salaries • Higher enforcement • Restrictive immigration laws • No distinction made between legal and illegal immigration • Xenophobia 21

The Impact of the Economy on U. S. Immigration II. In A Growing Economy The Impact of the Economy on U. S. Immigration II. In A Growing Economy • More jobs – Lower unemployment. - 10% in December 2009 - 9. 7% in January 2010 • More jobs for highly qualified individuals • Higher wages and salaries • More favorable pro-immigrant legislation • Xenophobia continues 22

Salary Reductions & Leaves of Absence for H-1 B Employees • Salary Reduction - Salary Reductions & Leaves of Absence for H-1 B Employees • Salary Reduction - Labor Condition Application (LCA) obligations • The higher of the prevailing vs. actual wage = required wage • Employer must re-file LCA if required wage not met - Filing of H-1 B amendment may be required • Leave of Absence, Furlough, etc. - Does the leave for absence or furlough result in a reduction in salary? - Cannot “bench” under LCA rules - Need to update the LCA - If so the H-1 B petition must be amended 23

Changes in Job Duties and Employing Legal Entity • Changes in Job Duties or Changes in Job Duties and Employing Legal Entity • Changes in Job Duties or Job Location - Job Duties • If new duties are a “material change”, the government may need to be notified and petition amended - Job Location – typically only relevant for H-1 B employees • May require LCA posting and/or I-129 amendment • Other Visa Categories - Evaluate whether notice of termination should be provided to government or other program sponsor 24

Impact on Foreign Nationals’ Immigration Status • When is the Employee “Out of Status”? Impact on Foreign Nationals’ Immigration Status • When is the Employee “Out of Status”? • Options available to terminated employees - Depart U. S. - Change of status to another visa classification - Secure position with another U. S. based employer • Timing - No “grace period” in the regulations - Unlawful presence issues - Withdrawal of petition 25

How does Layoff affect PERM? • If Employer has layoffs: - In the same How does Layoff affect PERM? • If Employer has layoffs: - In the same geographic area; and - In same or similar position; and - Of potentially qualified U. S. worker(s) Then: • Employer must wait 6 months after layoff to File new PERM for these locations and positions 26

When is I-140 “Portable”? – – “Same or similar occupation” – New position is When is I-140 “Portable”? – – “Same or similar occupation” – New position is in same or similar occupational classification – Change in position within same employer or to different employer – 27 I-485 pending 180 days Priority date an I-140 approval remains with foreign national employee

I-485 Portability • Miscellaneous Portability points - Geographic area not relevant - Wage should I-485 Portability • Miscellaneous Portability points - Geographic area not relevant - Wage should not be sole factor in determining “same or - - 28 similar” Multinational managers or executives can take advantage of portability Foreign national must have new offer of employment at the time the I-485 is being adjudicated under portability and must have notified USCIS If I-140 withdrawn prior to I-485 pending 180 -days, no longer eligible for I-140 portability If I-140 withdrawn, denied or revoked after I-485 pending for 180 -days, foreign national remains eligible for I-140 portability

Comprehensive Immigration Reform in 2010? • 2007 House approved CIR, failed in Senate • Comprehensive Immigration Reform in 2010? • 2007 House approved CIR, failed in Senate • Presidential promised CIR, delayed by Health Care • The recovering economy will be a positive factor • Concerns about “Amnesty” and “Path to Citizenship” - Fines - Tax Returns - No Criminal or Immigration Record • Possible Points System replacing Preference System • Will legal & illegal immigration concepts be unscrambled • Politically very sensitive. Xenophobia remains. • For 2010 CIS may be enacted. There are so many perceived and actual obstacles delaying the process. • The CIR for America’s Security and Prosperity (CIR ASAP) Act of 2009 was introduced on December 15, 2009. - Details will be found in the separate hand out 29

B-1 Business Visitors • Persons coming to the U. S. in B-1 visa status B-1 Business Visitors • Persons coming to the U. S. in B-1 visa status must comply with all of the following requirements: - Enter the U. S. for a limited period of time - Intend to depart at the end of the temporary period of stay - Maintain a foreign residence with no intent to abandon the same - Possess financial means adequate to stay in the U. S. without working in the U. S. - Engage solely in legitimate business visitor activities 30

B-1 Business Visitors • On foreign payroll • Activity in U. S. benefits foreign B-1 Business Visitors • On foreign payroll • Activity in U. S. benefits foreign employer - Business meetings, training, & joint development projects • Visa Waiver Program - 36 participating countries - 90 -day maximum stay - Must obtain electronic pre-approval before departure for U. S. - Ineligible for change of status 31

Export Control • Transfer of sensitive technologies and the resulting implications for the hiring, Export Control • Transfer of sensitive technologies and the resulting implications for the hiring, visa processing, immigration status and deployment of foreign nationals • Develop programs for : - Risk assessment - Preparation and monitoring of license applications - Development of compliance management systems 32

F-1 Students • Academic studies: elementary through postdoctoral - admitted for “duration of status” F-1 Students • Academic studies: elementary through postdoctoral - admitted for “duration of status” (D/S) • Full-time matriculated student at approved school • “Optional Practical Training: ” pre- or post-graduation - total = 12 months; part-time during school year, full-time during vacations and after graduation; OPT extension available for some science, technology, engineering, math (STEM) graduates - need employment authorization document (EAD); - School endorsed I-20, issued via Student and Exchange Visitor Information System (SEVIS), a web-based system for generation of Forms DS-2019 and tracking - not tied to particular employer • “Curricular” practical training if part of educational program - Need letter from school - School endorsed I-20 (issued via SEVIS System) 33

J-1 Trainees • Exchange visitor program • Categories include trainees, interns, research scholars, specialists, J-1 Trainees • Exchange visitor program • Categories include trainees, interns, research scholars, specialists, students • Emphasis on reciprocity, cross-cultural activities, and orientation • Some J’s must return to home country for 2 years after completion of program or seek waiver of this requirement - skills list - government funding - graduate medical education • SEVIS applies 34

L-1 Intracompany Transferees • Intracompany Relationship: - Parent, subsidiary, affiliate, branch or joint venture L-1 Intracompany Transferees • Intracompany Relationship: - Parent, subsidiary, affiliate, branch or joint venture • Prior Employment Abroad: - 1 year within 3 years preceding transfer to U. S. • Qualifying Capacity: - Executive, Managerial (L-1 A) - “Specialized” Knowledge (L-1 B) • Duration: - L-1 A = 7 years - L-1 B = 5 years 35

H-1 B Category: USCIS Provisions • “Specialty Occupation” -- Entry level requirement = minimum H-1 B Category: USCIS Provisions • “Specialty Occupation” -- Entry level requirement = minimum Bachelor Degree or equivalent • 3 for 1 rule -- 3 yrs. experience = 1 yr. of college • Labor Condition Application (LCA) certified prior to filing petition • Six-year maximum stay (can extend beyond 6 years under certain circumstances - AC-21) • 65, 000 annual ceiling, of which 6, 800 are set aside for citizens of Chile and Singapore • 20, 000 additional visas allocated to holders of advanced degrees from U. S. universities • Reasonable costs of return transportation for dismissed employee 36

Labor Condition Application • Filed with U. S. Department of Labor • Attests to Labor Condition Application • Filed with U. S. Department of Labor • Attests to four basic conditions - Wages - Working conditions - No strike or lockout - Notice • Wage offered must be the higher of Prevailing Wage or Actual Wage paid to similarly situated employees • H-1 B dependent vs. nondependent employers • Public access file 37

E’s, O’s & P’s E-1 Treaty Trader E-2 Treaty Investor O-1 Persons of extraordinary E’s, O’s & P’s E-1 Treaty Trader E-2 Treaty Investor O-1 Persons of extraordinary ability P Internationally recognized athletes or entertainment groups 38

PERM Labor Certification Process • Program Electronic Review Management • One standardized system • PERM Labor Certification Process • Program Electronic Review Management • One standardized system • Electronic application process • Strict advertising, recruitment and posting requirements • Must obtain prevailing wage determination before filing 39

Key Aspects of PERM (cont’d) • Processing times vary widely; cases selected for audit Key Aspects of PERM (cont’d) • Processing times vary widely; cases selected for audit experience lengthier processing time • Some changes to eligibility standards foreign nationals • Strict recordkeeping and documentation requirements • Applications subject to DOL audits based on predetermined factors or at random 40

Adjustment of Status • Can file concurrently with preference petition if priority date is Adjustment of Status • Can file concurrently with preference petition if priority date is current • Immigrant visa must be available for preference category and foreign national’s country of birth/ chargeability • Filed at USCIS Service Center - Nebraska or Texas 41

Consular Processing • Similar requirements as for adjustment of status • Some additional documentation Consular Processing • Similar requirements as for adjustment of status • Some additional documentation necessary (police clearances, military service certificates) • Application processed through U. S. Embassy/Consulate abroad • Mandatory for certain foreign nationals 42

Changes of Address • USCIS notification required within 10 days of change for principal Changes of Address • USCIS notification required within 10 days of change for principal and all family members. • File electronically or in hard copy on Form AR-11. • AR-11 will not update addresses on pending filings; must separately notify appropriate USCIS adjudicating office of change. 43

APPLICATION MATERIALS • Passport must be valid for six months beyond date of intended APPLICATION MATERIALS • Passport must be valid for six months beyond date of intended stay in U. S. • DS-160 –online nonimmigrant visa application will be mandatory from April 1, 2010. Prior Forms, DS 156, DS-157 etc. are being replaced by Form DS - 160 • Photo • Fees - $131 + applicable reciprocity fees increased fees imminent (see next slide for proposed new fees) • F/M/J SEVIS visa fee - $200 for F-1 s, $180 for J-1 s • Same documents for family members • Original Notice of Approval, Form I-797 (if applicable). A copy should be acceptable. 44

Proposed New Fees to Apply for a Visa in 2010 • Under the proposed Proposed New Fees to Apply for a Visa in 2010 • Under the proposed rule, applicants for all visas that are not petition-based, including B 1/B 2 tourist and business visitor visas and all student and exchangevisitor visas, would pay a fee of $140. • Applicants for petition-based visas would pay an application fee of $150. These categories include: H, L, O, P, Q and R visas. • H visa for temporary workers and trainees • The application fee for K visas for fiancé(e)s of U. S. citizens would be $350. • The fee for E visas for treaty-traders and treaty- investors would be $390. 45

ENHANCED ENFORCEMENT - DHS has authority to administer and enforce visa -related law - ENHANCED ENFORCEMENT - DHS has authority to administer and enforce visa -related law - Obtaining a visa is a privilege, not a right - General delays and unpredictability - Embassy security and shutdowns - Heightened scrutiny of applicants - New petition approval verification requirements (PIMS) - Travel advisories for U. S. citizens - Review of Visa Waiver countries - http: //travel. state. gov/visa/frvi/reciprocity_327 2. html 46

Visa Waiver Program • Visa-free entry and stays of up to 90 days • Visa Waiver Program • Visa-free entry and stays of up to 90 days • Available to nationals of 36 countries: - Andorra, Australia, Austria, Belgium, Brunei, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Liechtenstein, Latvia, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom • Passport requirements: - E-passport – if passport issued on or after 10/26/06 - Digital photograph – if passport issued btw 10/26/05 and 10/25/06 - Machine-readable passport – if issued btw 10/26/04 and 10/25/05 • ESTA – Electronic System for Travel Authorization: new online advance authorization system for VWP travelers. Became mandatory on 01/12/2009. 47

ENTRY INTO THE U. S. • US VISIT - Entry “check in” system • ENTRY INTO THE U. S. • US VISIT - Entry “check in” system • Photographing and fingerprinting upon entry - Applies to all NIV holders and Visa Waiver Program travelers - Effective 1/19/2009, applies to all U. S. LPRs, most Canadian citizens (except Canadian visitors for business/tourism, transiting travelers, unless inadmissibility waiver required) - Exit procedures currently suspended • NSEERS (“special registration”) - For certain nonimmigrants - Requires fingerprinting, photographing & secondary inspection; follow-up registration at DHS discretion - Departure through designated ports only - Change of address/employment/school on Form AR-11 SR - http: //www. ice. gov/pi/specialregistration/index. htm 48

Form I-94 • Form I-94 Arrival/Departure Record Card (I-94 card) - Date of issuance Form I-94 • Form I-94 Arrival/Departure Record Card (I-94 card) - Date of issuance - Status classification - Date of expiration of legal status - Admission number 49

EXCEPTIONS FOR CANADIANS • Passport now required for air entries from within or outside EXCEPTIONS FOR CANADIANS • Passport now required for air entries from within or outside of Western Hemisphere. Evidence of citizenship and identity required for land/sea entries from within WH. • No visa required (except for A, E & G visas) • Inspected and issued I-94 (except visitors) at airport or border • Eligible for TN status • May process L-1 at border 50

MAXIMUM STAY • H-1 B - 6 years w/ possible addl. Extensions • L-1 MAXIMUM STAY • H-1 B - 6 years w/ possible addl. Extensions • L-1 A - 7 years • L-1 B - 5 years • O - no maximum • F (EAD) - 12 months; 12 month postcompletion OPT extension available for certain science, technology, engineering & math graduates • J - 18 months for trainees; 12 months for • TN - no maximum but 3 year increments • E - no maximum 51 interns

FOR MORE INFORMATION • United States Citizenship and Immigration Services (USCIS) - http: //www. FOR MORE INFORMATION • United States Citizenship and Immigration Services (USCIS) - http: //www. USCIS. gov • Department of Homeland Security - http: //www. dhs. gov • U. S. Embassy and Consulate Information (DOS) - http: //usembassy. gov • Department of Labor (DOL) - http: //www. dol. gov/ • Social Security Administration (SSA) - http: //www. ssa. gov 52

1986 IRCA Legislation Had Shortcomings • Creation of I-9 was quid pro quo for 1986 IRCA Legislation Had Shortcomings • Creation of I-9 was quid pro quo for amnesty • Millions legalized if here from 1981 - 1986 • But borders never got sealed • Shortage of unskilled workers developed • False documents were easily available 53

ICE Machine Gearing Up • ICE now being told to target employers • Quid ICE Machine Gearing Up • ICE now being told to target employers • Quid pro quo for new amnesty • Some industries will be short-term casualties • ICE targeting wholesale violators • 650 employers notified in July 2009 • 1, 000 in December 2009 54

Good Faith Defense • Do the documents appear genuine? • Constructive notice? • Obvious Good Faith Defense • Do the documents appear genuine? • Constructive notice? • Obvious fake docs, SSA mis-match letters, other conduct • ICE Knows I-9 Rules are Complex • ICE Looking for Good Faith Compliance 55

Penalties • Fines based on conduct • $110 to $16, 000 per occurrence • Penalties • Fines based on conduct • $110 to $16, 000 per occurrence • Criminal penalties for pattern and practice • Up to 5 years in prison • Debarment as federal contractor 56

I-9 Self Audit • Proactive approach best • I-9 self audit of entire company I-9 Self Audit • Proactive approach best • I-9 self audit of entire company • Hire counsel to assist • Terminate unauthorized workers • Correct I-9’s that were done wrong 57

E-Verify I-9 Verification • On line system to verify I-9 documents • Partnership between E-Verify I-9 Verification • On line system to verify I-9 documents • Partnership between DHS and SSA • US CIS administers the program • ICE looks favorably on use of E-Verify • Queries DHS and SSA Databases 58

E-Verify Statistics • 96% verified to work within minutes • 4% receive tentative non E-Verify Statistics • 96% verified to work within minutes • 4% receive tentative non confirmations (TNC) requiring follow up • TNC – 3% to SSA, 1% to CIS • Final Non Confirmation: 3. 5% • System much more accurate now 59

E-Verify • Fed Contractors: Effective September 8, 2009 • Congress may moot litigation • E-Verify • Fed Contractors: Effective September 8, 2009 • Congress may moot litigation • $100 K per year in biz with fed govt • Subcontracts -- $3 k per year • Also required for STEM extensions • Many states now require E-Verify 60

Common Work Authorization Documents • • • 61 Drivers License and SSN Restricted SSN Common Work Authorization Documents • • • 61 Drivers License and SSN Restricted SSN never valid for work U. S. Passport or Green Card U. S. Birth Cert & Photo ID Work Permit Foreign Passport and Certain I-94’s

E-Verify Registration • • • 62 Register on-line with US CIS No fee Memorandum E-Verify Registration • • • 62 Register on-line with US CIS No fee Memorandum of Understanding (MOU) Designate corporate administrator 3 rd party agent can submit data

E-Verify • New Hires Only at this Time • Must Obtain SSN from New E-Verify • New Hires Only at this Time • Must Obtain SSN from New Hire • Don’t need SS Card • For I-9 List B doc, Need Photo ID • Not Considered Discrimination • Complying with MOU 63

E-Verify Photo Screening Tool • Photo verification capability • Help detect identity theft • E-Verify Photo Screening Tool • Photo verification capability • Help detect identity theft • Checks photos, CIS & DOS databases • Drivers Licenses Photos not in Database 64

Problems with E-Verify • • TNC 8 Day Drill Can Be Difficult • States Problems with E-Verify • • TNC 8 Day Drill Can Be Difficult • States Not Sharing Data with DHS • Litigation • 65 Doesn’t detect stolen Identity docs Congress indecisive re future of the program

Future of E-Verify • • Data continually improving • Privacy concerns outweighed by protection Future of E-Verify • • Data continually improving • Privacy concerns outweighed by protection of US Workers • Technology will lead debate towards greater use • 66 Administration Supports E-Verify Possibly a national ID card with fingerprints and photo

Immigration to the USA through Investment in EB-5 Green Card Program September 2008 Immigration to the USA through Investment in EB-5 Green Card Program September 2008

LEGAL REQUIREMENTS • Investment of US$1, 000 - US$500, 000, if • Rural Area LEGAL REQUIREMENTS • Investment of US$1, 000 - US$500, 000, if • Rural Area - Metropolitan Statistical Areas – MSA cannot be rural • High Unemployment Area (150% of National Average) - Creation of 10 Jobs • US Workers 68

LEGAL REQUIREMENTS, Con’t • Include: - Principal investor - Investor’s Spouse - Investor’s Children LEGAL REQUIREMENTS, Con’t • Include: - Principal investor - Investor’s Spouse - Investor’s Children unmarried and under 21 -year old (At Time of Admission into the US after Consular processing or Final Interview where adjustment of status approved in the US) - Spouse and older children can work - Children Can Go to Public or Private Schools 69

LEGAL REQUIREMENTS, Con’t • After admission some family members may wish to return to LEGAL REQUIREMENTS, Con’t • After admission some family members may wish to return to home country • Permit can be obtained to lawfully remain out of the USA for up to 2 years after commencement of Conditional Permanent Residence • Formalities MUST be carefully followed and application and biometrics completed while IN the US. • The Reentry Permits may be renewed 70

LEGAL REQUIREMENTS, Con’t • Steps – - Filing of form I-526 Petition at USCIS LEGAL REQUIREMENTS, Con’t • Steps – - Filing of form I-526 Petition at USCIS (4 to 6 months; average 5 months) - Approved I-526 Petition Processed at National Visa Center (NVC) (2 - 3 Months) - NVC Sends Petition to US Consulate for Final Interview (2 – 9 Months) - Timing will vary for US consuls around the world 71

LEGAL REQUIREMENTS, Con’t • Steps, Con’t - If the Investor is in the US LEGAL REQUIREMENTS, Con’t • Steps, Con’t - If the Investor is in the US the case may be processed as an Adjustment of Status (AOS) in the US - Work authorization (EAD) and if qualified, travel documents (Advanced Parole) will be issued to the investor and her or his qualifying family in about 90 days after filing the AOS (Form I 485) - The processing time of the AOS will take about 9 months or more from date of filing. 72

LEGAL REQUIREMENTS, Con’t • 2 -Year Conditional Residence (CR) - Continued Investment and Employment LEGAL REQUIREMENTS, Con’t • 2 -Year Conditional Residence (CR) - Continued Investment and Employment Creation • Submit Application for Removal of Condition 90 days before 2 nd year anniversary and not later than the 2 nd anniversary of the CR - Divorce from spouse or marriage or aging out of children after CR will not stop removal if all else is OK - Estimated processing time 6 months or more 73

LEGAL REQUIREMENTS, Con’t • Eligible to Apply for US Citizenship after 5 years from LEGAL REQUIREMENTS, Con’t • Eligible to Apply for US Citizenship after 5 years from date of Conditional Permanent Residence • Conditional Permanent Resident and Permanent Resident Expectations: - Reside in the US (See reentry permits) - Pay taxes as a US Citizen - Pass the English and civics tests 74

LEGAL REQUIREMENTS, Con’t • Most Common Issues - Lawful Source of Funds • Trace LEGAL REQUIREMENTS, Con’t • Most Common Issues - Lawful Source of Funds • Trace of Investment Money – Every dollar must be legally obtained and accountable • May be loan or gift from family, friends or company. - Origination of loan or gift funds MUST be proved to be from a lawful source • Bank loans – not secured by the investment do qualify 75

LEGAL REQUIREMENTS, Con’t • Most Common Issues - Ability to maintain business and active LEGAL REQUIREMENTS, Con’t • Most Common Issues - Ability to maintain business and active management - Ability to prove 10 full-time legal employees - Investment has to be at risk - No guarantees are given or are permitted by law 76

LEGAL REQUIREMENTS, Con’t • Regional Center - Authorized Investment Vehicle - Can Count Direct LEGAL REQUIREMENTS, Con’t • Regional Center - Authorized Investment Vehicle - Can Count Direct and Indirect Employment Creation - Must still prove every case that jobs will be created, directly or indirectly - Approval is not automatic - Investment is NOT US Government Approved - No need to be actively working in the business - Investor is a Limited Partner 77

ADDITIONAL REQUIREMENTS • MUST get independent business and tax advice • Must conduct own ADDITIONAL REQUIREMENTS • MUST get independent business and tax advice • Must conduct own due diligence • Fragomen, Del Rey, Bernsen & Loewy, LLP advises only on immigration law and practice issues and will file the cases • By law investment is at risk with NO guarantees • For an updated list of all registered Regional Centers please see the USCIS website at: http: //www. uscis. gov/portal/site/uscis/menuitem. 5 af 9 bb 95919 f 3 5 e 66 f 614176543 f 6 d 1 a/? vgnextoid=d 765 ee 0 f 4 c 014210 Vgn. VCM 1 00000082 ca 60 a. RCRD&vgnextchannel=facb 83453 d 4 a 3210 Vgn. VC M 100000 b 92 ca 60 a. RCRD 78

LEGAL REQUIREMENTS Please note: All times for processing referred to in this presentation are LEGAL REQUIREMENTS Please note: All times for processing referred to in this presentation are estimates based on current processing time as published by the USCIS or as experienced No timing can be guaranteed nor can an approval of a case be guaranteed by anyone. The process is in the sole and complete authority of the US Government, Department of Homeland Security, USCIS and the Consul at the consular post or embassy which falls under the US State Department (DOS). 79

Questions / Discussion Questions / Discussion