Employment Based ImmigrationBy Sarah MontyMonty Partners, LLP11.17.2009

Sarah Monty

• Partner, Monty Partners LLP• Practices exclusively in the area of United States

Immigration and Naturalization law• Counsels US employers hiring foreign nationals• Assists foreign nationals at U.S. consulates and

embassies abroad• Thurgood Marshall School of Law, Juris

Doctorate, cum laude, December 1997 • Admitted to the Texas State Bar, 1998

What is a Visa?

• Document found affixed to a page in an individual’s passport.

What is the purpose of a Visa?

• Does not permit entry to the U.S. • Permits an individual to apply to enter the United

States. • Only the U.S. immigration officer at the Port of

Entry has the authority to permit an individual to enter the United States and decide how long the individual can stay for that particular visit.

Arrival-Departure RecordForm I-94

• This is evidence that an individual has permission to be in the U.S.

• Issued at Port of Entry: If a visitor’s entry has been granted, the Port of Entry Officer records a date on the I-94 by which the individual must leave the United States!!!!

• Issued Upon Extension of Status: The applicant will be issued a new Approval-Departure Record I-94 attached to the bottom of an approval notice which evidences a persons status and work authorization for certain visa classifications.

Sample Arrival-Departure Record

A small white card placed by an immigration officer in the individual’s passport upon entering the U.S.

Sample Approval Notice with Arrival-Departure Record

Visa v. Arrival-Departure Record

• Visa - permits an individual to apply to enter the United States.

• Arrival-Departure Record– an individual is authorized to stay in the U.S. until the

expiration date marked on the Arrival-Departure Record. – In certain visa classifications (H-1B, TN, L-1, etc.), it

may serve as evidence that the individual has authorization to live and work in the U.S.

Nonimmigrant Visa Options

• H-1B Specialty Occupation Worker

• TN – NAFTA Treaty Nonimmigrant Worker

• L – Intra-company Transfer Employee

• O – Extraordinary Ability Worker

• H-2B – Temporary Nonagricultural Worker

• H-1B1 – Chile and Singapore Specialty Occupation Worker

• E-3 Australian Specialty Occupation Worker

H-1B Specialty Occupation Worker

• The H-1B nonimmigrant category is set aside for foreign workers in “specialty occupations” and fashion models of “distinguished merit and ability.”

• The workers in this category may be filling permanent positions in the United States, as long as they depart the United States at the end of their authorized periods of stay, including any extensions of stay.

H-1B Major Advantages:

• If transferring employee -quick process• Dual intent allowed. • Initial approval of up to 3 years with extension of

another three years allowed for not more than a total of 6 years in H-1B classification.

• Premium processing available.

H-1B Major Disadvantages:

• Only available for aliens who work in professions requiring at least a Bachelor degree or the equivalent.

• Low numerical cap on H-1B aliens• Expensive filing fees which must be paid by

employers.

TN NAFTA Treaty Nonimmigrant Worker

• Allows a U.S. employer to petition for the temporary employment of Canadian and Mexican nationals to perform professional-level activities in the U.S.

TN Major Advantages:

• Quick processing – Canadian TN applications are processed at the Border immediately, while Mexican TN applications can be processed in approximately 2 months.

• Unlimited renewal of TN status – Though the initial stay for a TN professional is one year, his or her period of stay may be extended in one-year increments every year, with no limit on the total period of stay.

TN Major Disadvantages:

• The TN route is available only for professional occupations. Employers would be able to bring in Mexican or Canadian individuals to work in professional positions stated in the treaty examples of positions:– Engineers – Bachelors degree (Mechanical, Civil,

Structural),– Architects,– Industrial Designers,– Computer Systems Analysts, or– Accountants.

L-1 Intra-company Transfer Employee

• Allows multinational companies to transfer foreign national employees, such as:– Executives to manage an organization or a major

function or division of an organization in the U.S.– Managers to supervise work of other supervisory,

professional or managerial employees, or who manages an essential function, department or subdivision in the U.S.

– Employees with specialized knowledge such as, its products, research methods and marketing techniques.

L-1 Major Advantages:

• May get visa approval for up to three years. • Extensions of two years at a time may be allowed

until you have been in the U.S. for a total of seven years for a manager or executive and five years for specialized knowledge employee.

• Premium processing available. • No minimum educational requirement. • Spouse of an L-1 employee can apply for

employment authorization.

L-1 Major Disadvantages:

• If a new U.S. Company, then the initial L-1 visa classification is only issued for a 12 month period.

• The worker must have at least 1 year of tenure as a full-time employee of the foreign affiliated company of the U.S. employer in the last 3 years.

• The foreign employer must remain operative during the employee’s transfer to the U.S.

B-1 Business Visitor

• Allows business professionals to:– explore possibilities to set up a subsidiary of a foreign

corporation, or to make investments– participate in commercial transactions (which do not

involve gainful employment) such as negotiating contracts and consulting with business associates

– attend professional or business conferences, workshops, or seminars or conventions

– attend meetings as a member of the Board of Directors of a U.S. corporation

– observe business, professional, or vocational activity as long as it does not involve any hands-on activity

– conduct business consultations with business associates in the U.S.

What is a B-1 Business Visitor NOT Authorized To:

• CANNOT receive a salary or compensation from a U.S. source. – Reimbursement for travel expenses is authorized.

• CANNOT remain in U.S. to manage business, but may enter to survey potential sites for a business and/or to lease premises in the U.S.

• CANNOT conduct construction work, but may supervise or train U.S. workers to conduct such activity.

• CANNOT attend certain trainings which require a different visa classification.

• CANNOT attend school full-time.

O-1 Extraordinary Worker

• Allows U.S. companies to hire foreign nationals with extraordinary ability in the field of arts, sciences, education, business or athletics.

• For example: an individual who has sustained national or international acclaim by receiving a major internationally recognized award such as the Nobel Prize.

O-1 Major Advantages:

• Nonimmigrant intent not required. • Unlimited renewal of O status – Though the initial

stay for a n extraordinary worker is three years, his or her period of stay may be extended in one-year increments every year, with no limit on the total period of stay.

• Premium processing available.

O-1 Major Disadvantages:

• Dependents may not work. • Applicant must have an employer (unlike the

second preference employment based petition where applicant can petition for himself or herself).

H-2B Temporary Nonagricultural Worker

• The H-2B temporary non-agricultural process allows a U.S. employer to petition for an alien or aliens to come temporarily to the U.S. to perform temporary services or labor if qualified U.S. workers capable of performing such services are not available.

• Temporary status typically means up to one (1) year, with possible extensions of stay in increments of one (1) year up to a maximum of three (3) years total.

H-2B Major Advantages:

• H-2B can be sought for a single alien or a group of aliens. Usually the identity of the aliens must generally be known in advance, although substitution of aliens can occur in limited circumstances.

• H-2B can be used for unskilled positions.

H-2B Major Disadvantages:

• Demonstrating that your need for labor is “temporary’ is the most difficult hurdle to overcome. In order for services to be temporary, it shall be either:– a one-time occurrence;– a seasonal need;– a peak load need; or– an intermittent need.

• Cap – only 66,000 H-2B visa’s available every year. Starting in April and October.

• Cap amount fills up very quickly, leaving many seasonal and small businesses without seasonal workers.

Specialty Occupation Worker H-1B1 - Chile or SingaporeE-3 - Australia

• Allows a U.S. employer to petition for a foreign professional who is a national of either Chile or Singapore (H-1B1) or Singapore (E-3) to come temporarily to the U.S. to work in a “specialty occupation”.

H-1B1 & E-3 - Major Advantages:

• Unlimited renewal of H-1B1 and E-3 visa classification.

• Although there is a numerical cap, currently there is an abundance of H-1B1 and E-3 visa’s immediately available.

• Low filing fees for visa issued abroad.• E-3 - spouse can apply for employment

authorization on an E-3D visa classification.

H-1B1 & E-3 - Major Disadvantages:

• H-1B1 - Only for individuals from Chile and Singapore.

• E-3 – Only for individuals from Australia.• Only available for aliens who work in professions

requiring at least a Bachelor degree or the equivalent

• Must show immediate nonimmigrant intent.• No premium processing available.• No AC21 porting provisions.

New Regulations

Optional Practical Training (OPT) for Students

Optional Practical Training (OPT) for Students

• Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study.

• Student cannot begin employment until after receiving an Employment Authorization Card.

• An F-1 student may be authorized to receive up to a total of 12 months of practical training either before (pre-) and/or after (post-) completion of studies.

Pre and Post-Completion OPT

• Pre-Completion OPT– F-1 Students authorized to work while enrolled in one

full year of course work. – May only work part time during the school year and full

time during the holidays.

• Post-Completion OPT– F-1 Students may be authorized to work after

completion of their studies.

STEM Extension of OPT

• 18 month extension of OPT allowed for the following individuals: – Students currently in their 12 months of post-completion

OPT – Students must have successfully completed a degree in

a “STEM” field.• S – science• T – technology• E – engineering, or• M – mathematics

Situational Changes that Impact Corporate Obligations

Major Concerns

• Handling a leave of absence• Transfers to different work locations• Cuts (or raises) in salary• Changing job duties• Corporate restructuring and your foreign workers• Closing a foreign office• Handling employee termination

Other Points to Remember

• Your obligations will differ based on the type of visa classification (H-1B, L, P, etc.)

• Visas that require a Labor Condition Application (LCA)- H-1B, H-1B1, E-3- are the most heavily regulated

• When in doubt, assume the government requires action and follow the most prudent course

Employment Based Lawful Permanent Residence

What does employee need to gain Lawful Permanent Residence?

• Employment Based Petition filed on behalf of the employee.

• Visa available to the employee.

Visa Bulletin

• This bulletin summarizes the availability of immigrant numbers during the month it is issued.

• The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.

• Only applicants who have a priority date earlier than the cut-off date may be allotted a number.

Visa Bulletin

• Immigrant visas are numerically limited by category and by country of chargeability (one's country of birth).

• Immigrant visas are issued in the order in which the petitions have been filed.

• Currently, the oversubscribed chargeability areas are CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

What is a Priority Date?

• This is the date the application for labor certification is received by the Department of Labor.

• If no labor certification is required, then this is the date an employment based immigrant petition was filed.

What is the Cut-off Date?

• On the chart in the Visa Bulletin, the State Department provides a date for each category of preferences for both family-based immigrant applications and employment-based immigrant applications.

Cut-off Dates for December 09

All charge-ability areas except those listed

CHINA-mainland born INDIA MEXICO PHILIP-PINES

Employment-Based

1st C C C C C

2nd C 01APR05 22 JAN 05 C C

3rd 01JUN 02 01JUN 02 01 MAY 01 01 JUL 02 01 JUN 02

OtherWorkers 01JUN 01 01JUN01 01MAY 01 01 JUN 01 01JUN 01

4th C C C C C

Certain Religious Workers

C C C C C

5th C C C C C

Targeted Employment Areas/Regional Centers

C C C C C

Cut-off Date

• "C" means current, i.e., numbers are available for all qualified applicants

• "U" means unavailable, i.e., no numbers are available.

• The listing of a date for any class indicates that the class is oversubscribed

• NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed.

Employment Based – First Preference (EB-1)

• Multinational Executives & Managers (L-1A Nonimmigrants)

• Person worked for foreign parent, subsidiary, affiliate for 1 of the last 3 yrs prior to entry to U.S.

• Managers cannot be 1st line supervisors – unless they supervise professionals

• Functional managers must manage an essential function or operation

EB-1 Immigrant Visa Requirements

• No Labor Certification Needed• Foreign Company needs to still be in operation• Prior approval of L-1A does not necessitate

USCIS approval of Immigrant Petition – each petition is adjudicated on its own merits

Employment Based - Second Preference (EB-2)

• For Professionals with Advanced Degrees or equivalent (Masters or a bachelors + 5 years progressive exp)

• Labor Certification/Recruitment Needed• For Exceptional Ability individuals in sciences,

arts, business • Labor certification can be waived if in National

Interest to eliminate LC

EB-2 Advantages/Disadvantages

• Adv - Visa availability is usually faster than EB-3 for all countries, esp. India, China, Mexico

• Disadv – USCIS standards for EB-2 are strictly adhered to; government can challenge beneficiaries’ employment history for EB-2 equivalency if not well-supported with letters, paystubs etc.

• Disadv – Must have employer verification letters that verify prior experience, otherwise government will not accept prior experience as valid

Employment Based – Third Preference (EB-3)

• For Professionals with bachelors or equivalent (can include education, training, work)

• For Skilled Workers (non-professional) with at least 2 years training or work experience

• Labor Certification needed; national interest waiver not available

EB-3 Advantages/Disadvantages

• Disadv - Visa availability is usually Slower than EB-2 for all countries, esp. India, China, Mexico –longer wait for adjustment

• Disadv – Recruitment can be more difficult with many job applicants to review due to lower years of experience

Labor Certifications – Step One –Employer Pays All Costs, Legal Fees

• Regulations require that Employers pay all legal fees and advertising fees – employees cannot pay any fees related to labor certifications.

• Cannot pass on LC costs to employees (wage garnishment etc.)

• Employer must attest under penalty of perjury to its payment of all fees as well as other attestations

• Employee attests to truthfulness of his education/employment history.

• All applications subject to Audit by Dept of Labor

Labor Certifications – Step One (EB-2,EB-3) – Filed on Form ETA 9089

• Prevailing Wage from State Workforce Agency –must adhere to this wage and offer this wage to all job applicants as the minimum wage/salary

• Employer can pay for private survey if employer not satisfied with federally set wages

• Employer does not have to pay that wage to employee currently, just has to attest that it will pay that wage when employee obtains permanent residence in the future.

• 2. Posting Notice – gives notice to all employees of job offer along with posting of minimum wage – gives DOL address for employee complaints

Labor Certifications – Step One (EB-2,EB-3)

• 3. Web Registration of Company – (Attorneys are prohibited from registering employers online)

• 4. 30 Day Job Order – In Texas at www.workintexas.com, Texas Workforce

Commission. Free posting.• 5. 2 Sunday Ads – Newspaper of General

Circulation in Area – Employer must pay this ad fee

Labor Certifications – Step One (EB-2,EB-3)

• 6. Extra Required Ads for Professional Positions• Must choose 3 of the following:• Job Fair• Employer Website• Other Job Search Website• On Campus Recruiting• Trade/Professional Organization Ad• Private Employment Firm• Referral Incentive Program• Campus Placement Office• Local/ethnic paper• Radio/TV ad

Immigrant Petition – Step 2; Ability to Pay Wage

• Employer is obligated by regulations to provide one of the following to support its ability to pay employee’s permanent wage:

• Corporate Income Tax Return • Independently Audited Financial Statement • Annual Report

Adjustment of Status – Step 3; Alien Applies for LPR Status

• If a visa becomes available, the alien can apply to adjust his status.

• After filing for adjustment, the alien can obtain an Employment Authorization Document, but the employer should encourage the alien to maintain his or her nonimmigrant classification until approval of the adjustment application.

• The alien’s family may also apply for adjustment which means increased legal and filing fees.

Questions?

SARAH D. MONTYLEAD IMMIGRATION ATTORNEY

Monty Partners, LLP150 West Parker Road, Third Floor

Houston, Texas 77076281.493.5529

www.montypartners.comsdm@montypartners.com

Thank You

Disclaimer• ABOUT US. Established in 1998, Monty Partners, LLP is the largest Hispanic-owned labor,

employment and immigration law firm in the Southwest. The Firm is passionate about representing the interests of companies with large Hispanic workforces. The firm offers a range of corporate legal services to Fortune 500, publicly-traded companies, major industry associations and governmental agencies (notably serving as Immigration Counsel for the agencies). The Firm represents employers in investigations and audits conducted by the National Labor Relations Board, Department of Labor, Bureau of Citizenship and Immigration Service, Occupational Safety and Health Administration and Equal Employment Opportunity Commission.

• DISCLAIMER. This presentation is for informational purposes only and provides general information concerning employment and immigration law to help you identify when you may need additional advice. It is not an exhaustive treatment of the statutes, case law or regulations that are involved with the subject. Please recognize that the law is developing rapidly in this area and you will want to obtain current legal advice on your specific situation before taking action. Employment and Immigration law liabilities are often highly dependent on the particular facts and circumstances of the individual case or situation. As such, employers should seek the advice of counsel prior to making their determinations. Monty Partners, LLP is available to answer any employment or immigration related issue(s) with Your Company.

Copyright Materials

• This presentation is protected by US and International copyright laws. Reproduction, distribution, display and use of the presentation without permission of the speaker is prohibited.