If you’re thinking of sourcing talent from outside the U.S. -- or you are an entrepreneur who has questions about the visa process -- check out this presentation from Delya Ghosh, Partner at Berry Appleman & Leiden LLP (https://www.balglobal.com/) and Early Growth Financial Services (www.earlygrowthfinancialservices.com). Topics covered include the most common immigration challenges that startups face, including handling visa challenges and navigating the process with various governmental agencies.

1. CONFIDENTIAL 1Copyright © 2015 Berry Appleman & Leiden LLP
Immigration Challenges for
Start-ups and Emerging Businesses
#StartupImmigration

2. CONFIDENTIAL
With You Today
Copyright © 2015 Berry Appleman & Leiden LLP 2
Delya Ghosh
Partner
BAL Erika Malzberg
CMO
EGFS

3. CONFIDENTIAL
Austin | Boston | Dallas | Geneva | Houston | London | McLean, Va. | Rio de Janeiro
San Francisco | São Paulo | Shanghai | Singapore | Sydney | Washington D.C.
Non-U.S. offices are operated by affiliated entities in those countries. See website for details.
Passion. Knowledge. Results.
balglobal.com
3Copyright © 2015 Berry Appleman & Leiden LLP CONFIDENTIAL

4. CONFIDENTIAL
Berry Appleman & Leiden
• Full-service, corporate immigration law firm, established in
1980
• 90+ attorneys, solicitors and/or immigration managers
• 500+ employees around the world
• Offices across the US and in Australia, Brazil, China, Singapore,
Switzerland and UK
• Network Partners in over 150 countries
• Significant experience with diverse multi-national
corporations, in industries including information technology,
pharmaceuticals, manufacturing, engineering, life sciences
and financial services
4Copyright © 2015 Berry Appleman & Leiden LLP

5. CONFIDENTIAL
“Startups face a huge burden in today’s
economy, often having to choose
between funneling resources toward
creating their goods and services or
managing the often complex
accounting, tax and financial strategy
planning necessary to run a successful
business.”
~ David Ehrenberg,
Founder and CEO
Early Growth Financial Services

6. CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 6
Today’s Agenda
• Immigration agencies and key concepts
• Common nonimmigrant visas and
challenges for start-ups
• Green card process overview and
challenges
• Special considerations for Founders/Owners

7. CONFIDENTIAL
• Department of Homeland Security
 U.S. Citizenship & Immigration Services (USCIS)
 U.S. Customs & Border Protection (CBP)
 U.S. Immigration & Customs Enforcement (ICE)
• Department of Labor
• Department of State
Copyright © 2015 Berry Appleman & Leiden LLP 7
What are the
Relevant Agencies?

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Key Immigration Concepts
Non-Immigrant vs. Immigrant
What is the difference between a visa and status?
I-94 record controls length of stay, not visa
Quotas

9. CONFIDENTIAL
• Coming to the United
States temporarily
• Retain residence
abroad (required for
certain categories)
• Dual intent: only for
H’s and L’s
• Alphabet Soup of
non-immigrant visas:
A-V
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Non-Immigrant Visas

10. CONFIDENTIAL
• B-1/B-2 Business Visitor/Tourist
• E-1/E-2 Treaty Trader/Treaty Investor
• E-3 Australian
• F-1 Student
• H-1B Specialty Occupation
• H-3 Trainee
• J-1 Cultural Exchange Visitor
• L-1 Intra-company Transferee
• O-1 Extraordinary Ability
• TN Treaty Nafta
Copyright © 2015 Berry Appleman & Leiden LLP 10
Common Non-Immigrant
Visas/Status

11. CONFIDENTIAL
• Professionals - Specialty occupation (degree in field
required)
• Not based upon shortage of U.S. workers
• Numerically limited: ~ 85,000/year
• Issued in 3-year increments
• 6-year limit with exceptions: AC21
 LC filed 365 days before final stay
 I-140 approval and Immigrant quota backlog
Copyright © 2015 Berry Appleman & Leiden LLP 11
Snap Shot:
H-1B Specialty Occupation Workers

12. CONFIDENTIAL
• For managers/executives (L-1A) or specialized
knowledge professionals (L-1B)
• Requires 1 year employment abroad at
qualifying organization within past 3 years
• Spousal employment permitted with EAD card
• 7-year limit for L-1A
• 5-year limit for L-1B
Copyright © 2015 Berry Appleman & Leiden LLP 12
Snap Shot:
L-1A/L-1B Intracompany Transfers

13. CONFIDENTIAL
• Quota for new H-1B’s exhausted for 2015
• Increased scrutiny for businesses with less than 25
employees
• Elevated evidentiary requirements to prove bona
fide business
• Brick and mortar business requirement
• Prevailing Wage requirements
• Employer–Employee relationship required or implied
for many non-immigrant visa categories
Copyright © 2015 Berry Appleman & Leiden LLP 13
Non-Immigrant Visa Challenges
Faced by Start-ups

14. CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 14
Immigrant Visas

15. CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 15
Immigrant Visas and
Permanent Residence:
You can take one of four roads…
Green Card
Employment
Based
Family Based
Green Card
Lottery (Diversity
Visa Program)
Asylum and
related programs

16. CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 16
Employment Based (EB)
Preference Categories
Employment
Based
First
Preference
(EB-1)
Second
Preference
(EB-2)
Third
Preference
(EB-3)

17. CONFIDENTIAL
• EB-1 does not require labor certification
Extraordinary Ability
Outstanding Professor/Researcher
Multinational Executive/Manager
• EB-2 and EB-3 require a PERM labor
certification: a test of the U.S. labor market
Copyright © 2015 Berry Appleman & Leiden LLP 17
First, Second and Third
Preference Categories

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Permanent Residence Process

19. CONFIDENTIAL
• Typically first step of the green card process
• Electronic filing with Department of Labor
• Must describe position, job requirements
and recruitment efforts
• Must show shortage of qualified, willing or
available U.S. workers
• Recruitment steps mandated by regulation
• PERM filing date establishes “priority date”
for immigrant visa
Copyright © 2015 Berry Appleman & Leiden LLP 19
Stage 1 – Labor Certification:
PERM

20. CONFIDENTIAL
• File within 6 months of PERM approval
• Establishes employee’s qualifications for the
job
• Designates immigrant preference category
(EB-1, 2, 3) and priority date
• Establishes employer’s ability to pay the
offered wage
Copyright © 2015 Berry Appleman & Leiden LLP 20
Stage 2 – I-140 Immigrant Visa
Petition

21. CONFIDENTIALCopyright © 2015 Berry Appleman & Leiden LLP 21
Visa Delays
All green cards are the same, so why do
categories matter?
• The complicated quota system:
The Immigration and Nationality Act (INA) sets an annual minimum family-
sponsored preference limit of 226,000. The worldwide level for annual
employment-based preference immigrants is at least 140,000. The per-country
limit for preference immigrants is set at 7% of the total annual family-sponsored
and employment-based preference limits, i.e., 25,620. The dependent area limit
is set at 2%, or 7,320. EB-1 is 28.6% of the worldwide EB preference level, plus any
numbers not required for fourth and fifth preferences. EB-2 is 28.6% of the
worldwide EB preference level, plus any numbers not required by first preference.
EB-3 is 28.6% of the worldwide level, plus any numbers not required by first and
second preferences, not more than 10,000 of which to "Other Workers". EB-4 is
7.1% of the worldwide level. EB-5 is 7.1% of the worldwide level.
• The Visa Bulletin (updated monthly)

22. CONFIDENTIAL
• Priority date on Visa Bulletin must be current
to file form I-485
• Adjustment of Status (AOS) filed with USCIS
• May be filed concurrently with Stage 2
(Form I-140) when immigrant visa is available
• Employment Authorization Document (EAD)
and Advance Parole (AP) available
• Alternative: Immigrant visa application filed
at U.S. consulate abroad
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Stage 3 – Application for
Permanent Residence

23. CONFIDENTIAL
• Ownership interest may impact eligibility
• Demonstration of Ability to Pay
• GC’s are location and position specific:
Material changes in job may require new
filings
• Employee may not rise to EB1 eligibility.
Company also may not meet EB1
requirements.
Copyright © 2015 Berry Appleman & Leiden LLP 23
Green Card Challenges
Faced by Start Ups

24. CONFIDENTIAL
• When is a work visa required?
• Controlling interest can impact eligibility for
both non-immigrant/immigrant visas
• Presidential executive order: Enhance
options for foreign entrepreneurs
• EB5 Investor Visas
Copyright © 2015 Berry Appleman & Leiden LLP 24
Special Considerations for
Founders/Owners

25. CONFIDENTIAL
Q&A and Contact Us
Delya Ghosh, Partner
(415) 743-9694
dghosh@balglobal.com
www.balglobal.com
Erika Malzberg, CMO
(415) 234-3437
contact@earlygrowthfinancialservices.com
www.earlygrowthfinancialservices.com
@EarlyGrowthFS