Presented by:
Mark A. Urbanski, Esq.
Immigration Attorney
Law Offices of Mark A. Urbanski, PLLC
Washington, DC Office:
1875 I St., NW, Fifth Floor, Washington, D.C. 20006
Virginia Office:
13885 Hedgewood Dr., Ste. 201, Woodbridge, VA 22193
Phone: 202-210-9000 (DC) 703-435-9000 (VA)
E-mail: urbanski@globecenter.com
Internet: http://www.globecenter.com
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
About
Mark A. Urbanski, Esq.







B.S. Cornell University
J.D. State University of New York
Member, American Immigration Lawyers Association since 1996
Admitted to N.Y. & D.C. bar, and numerous U.S. Federal Courts
Practice Limited to Immigration Law for 18 years
Offices in Washington, D.C. and Woodbridge, V.A.
Represents individuals, students, scholars, small businesses,
large corporations, investors, educational institutions, hospitals,
and municipalities in all aspects of immigration law.
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
Important Disclaimer:
This presentation and any information provided
are solely for educational purposes and should
not be construed or relied upon as legal advice
nor as creating an attorney-client relationship.
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
Topics to be Discussed:










Introduction to US Immigration System
H-1B Professional Working Visas
O-1 Outstanding Ability Aliens
E-2 Treaty Investors
Employment-Based Immigration
Labor Certification
EB-2 vs. EB-3
National Interest Waivers
EB-1: Extraordinary Ability
EB-5 Investors
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
Introduction to U.S. Immigration
 Terminology






Nonimmigrant vs. Immigrant
Permanent Residence (Green Card) vs. Citizenship
Visa vs. Status
Adjustment of Status vs. Consular Processing
Preference System (numerical limitations)
Sponsorship the rule, with some exceptions
 Relevant U.S. Government Agencies
 Department of Homeland Security (DHS)
U.S. Citizenship & Immigration Services (USCIS)
 U.S. Immigration & Customs Enforcement (ICE)
 U.S. Customs and Border Protection (CBP)
Department of State (DOS)
 Visa Office, National Visa Center (NVC) & Consulates
Department of Labor (DOL)
Social Security Administration (SSA)
Internal Revenue Service (IRS)





(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
H-1B Professional Working Visas
Basics
 Requirements:
 Position requires “Specialized Knowledge”
 Worker possess BA/BS degree
 Nexus between job and degree
 Duration: 6 years total (3yr. Increments)
 Dual-Intent Visas (Compatible with LPR process)
 Normal processing time is 2-4 months, but eligible for
premium processing (15 business days)
 H-4 Spouse not allowed to work
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
H-1B Professional Working Visas
(continued)
Numerical Limitation
 65,000 total visas
 20,000 additional visas for U.S. “master’s cap”
 Exempt employers– universities, hospitals, certain non



profits, etc.
Quota opens each October 1 (start of Federal fiscal year)
Allowed to apply up to 6 months early, or April 1 for
October 1 start date
Unless cap-exempt, when they’re gone they’re gone
If more visas are received than are available, a lottery
system is applied
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
H-1B Professional Working Visas
(continued)









Considerations and Features
Employer Specific (but can have multiple H-1B’s)
Must be paid at prevailing wage or higher (for location and job
title)… some exceptions (wage survey, union contract, etc.)
Prerequisite to obtain a Labor Condition Application (LCA) from
DOL prior to filing with USCIS
Employer must pay certain filing fees (and deductions can not
drop worker below prevailing wage)
Allow 2-4 weeks preparation time minimum
“Cap Gap” May/June through October 1… may be allowed to work
Can go beyond 6 year limit if Labor Certification or I-140 filed
prior to 5-year point of H-1B status
USCIS has much larger budget for site inspections and
enforcement… be prepared
Must be W-2 worker, not 1099 (employee, not independent
contractor)… right to control crucial
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
Other Nonimmigrant Options:
O-1 (Outstanding Ability)
O-1 vs. H-1B
Advantages





Not subject to annual numeric cap
Professional degrees not required
No specific wage requirement (LCA not required)
No training or fraud prevention fees (saves $1,250-2,000)
Agents may file the petition
Disadvantages
 Not everyone who can qualify for an H-1B can qualify for an
O-1 (much harder to qualify)
 Not dual-intent (although not generally a problem)
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
Other Nonimmigrant Options:
O-1 (Outstanding Ability)
Features of O-1




O-1A: Persons of extraordinary ability in the sciences, arts, education, business or athletics.
O-1B: Persons of extraordinary achievements in motion picture or television industry.
O-3: Spouses and children of O-1 Principals
Extraordinary demonstrated by “sustained national or international acclaim” (O-1A) or
“national or international achievement” (O-1B)
 To qualify, must be the recipient of a major internationally recognized award such as the
Nobel prize (sufficient) or at least 3 out of 8 of the following:
 Receipt of nationally or internationally recognized prizes or awards for excellence in the field
 Membership in associations that require outstanding achievement
 Published materials about applicant in major trade journals in the field or in the media
 Served as a judge of the work of others either individually or in a panel
 Scientific, scholarly, or business-related contributions of major significance in the field
 Authorship of scholarly articles in professional journals or other media
 Employed in a critical or essential role with organizations with a distinguished reputation
 Has commanded high compensation
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
Other Nonimmigrant Options:
E-2 (Treaty Investors)
Features




No numerical limitation
Nationality of dependent not relevant
E-2 spouse may obtain EAD
Length of visa depends of reciprocity (up to 5 years)
but continually renewable (no time limit!)
 May be consular processed or change status in U.S.
 Unlike H-1B and other categories, consulate must readjudicate E-2
 GREAT option for start-ups and entrepreneurs
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
Other Nonimmigrant Options:
E-2 (Treaty Investors)
Requirements
 Investor must be national of treaty country
 Investment enterprise must have nationality of treaty






country
Has invested or is actively in the process of investing (Funds
must be “at risk”)
Legal source of funds
Must be a “commercial enterprise”
Investor must “develop and direct” enterprise (not passive)
Investment must be “substantial” (usually $100,000 or more
is enough)
Investment must not be “marginal”
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
Employment-Based Immigration
EB-1 Outstanding Professor/Researcher, Multinational
Manager/Executive, Outstanding Ability Alien (in arts, science,
business, education or athletics)
EB-2 Advanced Degree Professional* and National Interest
Waiver
EB-3 Skilled and Professional Worker*
EB-4 Special Immigrant
EB-5 Immigrant Investor
*Labor Certification Required
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
Employment-Based Immigration
(continued)
Labor Certification
Immigrant Petition
Current Priority Date
Consular
Processing
Adjustment
of Status
Work Permit
Advance Parole
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
Labor Certification








Test of U.S. Labor Market to determine if U.S. Citizen available
Must first obtain official prevailing wage determination (60 days)
Then min. 60 day recruitment period (3 ads, or 5 if professional)
Uses PERM Online Filing System
6-12 month processing time
Filing of LC establishes priority date
Must meet minimum job requirements
Skilled = requires BA/BS degree or higher or 2+ years of
experience
 Based on an OFFER of permanent, full-time employment
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
EB-2 vs. EB-3
 EB-2 requires both that you have an advanced degree (Masters or higher) AND that the
position also requires that degree
 Can also use Bachelor’s plus 5 years of progressive experience to qualify for EB-2
 Schedule A, Group I professions can waive labor certification (EB-2 or EB-3), currently
just nurses and physical therapists
 EB-2 also offers Schedule A, Group II option for an “alien of exceptional ability in
the sciences, arts or business”… no labor cert. required, but employer sponsorship is
 Exceptional ability is defined as “a degree of expertise significantly above that
ordinarily encountered in the sciences, arts, or business”
 Therefore, EB-2 is often riskier since requirements can be scrutinized by DOL and
USCIS (and audited)
 Main advantage of EB-2 has been shorter waiting time (current priority dates for most
countries), but that has changed recently
 EB-3 down to around 1.5 years in Visa Bulletin
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
National Interest Waivers
 As name implies, requests that labor certification requirement be waived
 Only EB-2 petition category which does NOT require employer sponsorship
 Must meet general EB-2 requirements (advance degree, or bachelor’s plus 5
years progressive experience, etc.)
 Must satisfy the requirements of the three-prong test laid out in New York State
Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998):
 The beneficiary must seek to work in an area of substantial intrinsic merit
 The beneficiary’s work must have a benefit which will be national in scope
 The beneficiary must serve the national interest to a substantially greater degree than
would an available U.S. worker having the same minimum qualifications.
 The national interest would be adversely affected if a labor certification were required
for the beneficiary.
 Must keep in mind that national interest of the UNITED STATES is what counts
 To qualify, must really demonstrate “what makes you so special”… that the U.S.
can not do without you (no one else can do what you do)
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
EB-1: Extraordinary Ability
 No labor certification required, and can self-petition, but must
show coming to work in area of expertise
 For EB-1, must have “extraordinary ability in the sciences,
arts, education, business, or athletics which has been
demonstrated by sustained national or international acclaim and
whose achievements have been recognized in the field through
extensive documentation.”
 Extraordinary ability is defined as “a level of expertise indicating
that the individual is one of that small percentage who have risen
to the very top of the field of endeavor.”
 Also a category of EB-1 for “Outstanding Professors or
Researchers”… requires employment in Academia, 3 years postdegree experience, and evidence of “outstanding ability.”
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
EB-1: Extraordinary Ability
 Receipt of recognized major international award
Or at least 3 of:










Receipt of lesser nationally or internationally recognized prizes or awards for excellence in the field of
endeavor
Membership in associations in the field for classification is sought, which require outstanding achievements of
their members, as judged by recognized national or international experts in their disciplines or fields
Published material about the alien in professional/major trade publications or other major media, relating to the
alien’s work in the field for which classification is sought.
Evidence of the alien’s participation (individually or on a panel) as a judge of the work of others in the same or
an allied field of specialization for which classification is sought
Evidence of the alien’s original scientific, scholarly, artistic, athletic, or business-related contributions of major
significance in the field
Authorship of scholarly articles in the field, in professional or major trade publications or other major media
Evidence of the display of the alien’s work in the field at artistic exhibitions or showcases
Evidence the alien has performed in a leading or critical role for organizations that have a distinguished
reputation
Evidence that the alien has commanded a high salary or other significantly high remuneration for services, in
relation to others in the field
Evidence of commercial success in the performing arts (ex. box office receipts or recording or video sales)
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
EB-5 Immigrant Investor Category
 10,000 Immigrant Visas per year available (5,000 reserved for







Regional Centers)
Investment of $1,000,000 (or $500,000 if Targeted Employment
Area (TEA)
Must be new commercial enterprise, or substantial expansion of
existing enterprise
Must create 10 jobs within 2 years
Green Card is Conditional for 2 years
For Regional Center investments, no need to actively manage
enterprise or live in proximity to investment location
Spouse and children granted green cards
By far the best (easiest, fastest) option if you have an extra $500K
that you can do without for 5-6 years
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved
Contact Info
If you would like more information, or have questions that you didn’t
have a chance to ask, please feel free to schedule a free consultation
by contacting me at…
Law Offices of Mark A. Urbanski, PLLC
Washington, DC Office:
1875 I St., NW, Fifth Floor, Washington, D.C. 20006
Virginia Office:
13885 Hedgewood Dr., Ste. 201, Woodbridge, VA 22193
Phone: 202-210-9000 (DC) 703-435-9000 (VA)
Washington, D.C. 20006
E-mail: urbanski@globecenter.com
Internet: http://www.globecenter.com
Important Disclaimer: This presentation and any information provided are solely for educational purposes and should not be
construed or relied upon as legal advice nor as creating an attorney-client relationship.
(c) 2014 Law Offices of Mark A. Urbanski, PLLC All Rights Reserved