US Corporate & Business Immigration Law Presented to German American Business Association Whittier Law School Cos

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

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

3. 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

4. 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

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

6. 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

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

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

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

10. 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

11. 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

12. 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

13. 3 Steps to a Green Card • Labor certification - PERM • 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) • 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

14. 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)

15. 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

16. 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”

17. 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

18. 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-1B employees • LCA issues • Return transportation • Dependents

19. Immigration UpdateI-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

20. 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.

21. Immigration Update (cont.) H-1B 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-1B 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.

22. 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

23. 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

24. Salary Reductions & Leaves of Absence for H-1B 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-1B 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-1B petition must be amended

25. 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-1B 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

26. 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

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

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

29. I-485 Portability Miscellaneous Portability points Geographic area not relevant Wage should not be sole factor in determining “same or 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

30. 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

31. 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

32. 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

33. 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

34. 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)

35. 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

36. 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-1A) • “Specialized” Knowledge (L-1B) • Duration: • L-1A = 7 years • L-1B = 5 years

37. H-1B 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

38. 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-1B dependent vs. nondependent employers • Public access file

39. 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

40. 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

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

42. 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

43. 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

44. 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.

45. 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-1s, $180 for J-1s • Same documents for family members • Original Notice of Approval, Form I-797 (if applicable). A copy should be acceptable.

46. Proposed New Fees to Apply for a Visa in 2010 • Under the proposed rule, applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange-visitor 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.

47. 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/reciprocity_3272.html

48. 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.

49. 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-11SR • http://www.ice.gov/pi/specialregistration/index.htm

50. 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