Business Immigration Update...Seasonal/Temporary Work (H-2B) • Job must be truly temporary • “Cap” issue again • Only 66,000 per year • In addition to LCA, must prove shortage

© 2013 Hinshaw & Culbertson LLP, an Illinois Limited Liability Partnership. All rights reserved.

Business Immigration

Update: Issues Affecting Employers

March 20, 2014

Brett A. Strand

©2013 Brett A. Strand – All Rights Reserved


Part A: Immigration Law Today

1. Non-Immigrant Visas

2. Immigrant Visas

3. Compliance Issues

Part B: Immigration Law Tomorrow

4. Deferred Action

5. Reform?

Roadmap


Introduction

• What are the biggest immigration challenges facing

employers?

1. Lack of willing and available U.S. workers to perform

essential unskilled and semi-skilled worker positions

2. Traditional reliance on undocumented workers to

perform certain positions

3. Lack of appropriate nonimmigrant classifications for

essential workers lacking college degrees

4. Industry growth requiring increased workforce


Non-Immigrant Business

Visa Classifications


Business Visitor (B-1)

• Short-term visits

• Must remain on foreign payroll

• Must possess temporary (non-

immigrant) intent

• Cannot perform any “work” in the

U.S.


Specialty Occupations (H-1B)

• Most commonly used by employers

• For “professional” positions

• Degree requirement

• Limited availability (“H-1B Cap”)

• 65,000 per year

• Prevailing wage requirement (“LCA”)

• 3-year initial term; 6-year maximum


H-1B cont’d: Worksite Inspections

• USCIS Office of Fraud Detection and National

Security increased focus on H-1B program

• Closely tied to LCA requirements

• Worksite inspections and visits are on the rise

• Employer/employee interviews

• Site tours

• Review of payroll records and Public Access Files


Seasonal/Temporary Work (H-2B)

• Job must be truly temporary

• “Cap” issue again

• Only 66,000 per year

• In addition to LCA, must prove shortage

of US workers

• Requires several months’ lead time and

recruitment steps prior to filing

• 1-year renewable terms


H-2B (cont'd): Prevailing Wages


Trainees (H-3)

• Training must be unavailable in home country

• Employer must prove that program meets

certain requirements

• Not for providing “productive employment”

• Structured

• Useful outside U.S.

• Not for training worker to ultimately work in U.S.

• 2-year maximum


Intracompany Transferee (L-1)

• Executive, managerial, or “specialized knowledge”

positions

• Must have worked abroad for foreign affiliated company in

position for at least 1 out of the last 3 years

• L-1A is for Executive/Managerial Worker

• 7-year aggregate maximum stay in U.S.

• L-1B is for Specialized Knowledge Worker

• 5-year aggregate maximum stay in U.S.


Exchange Visitors (J-1)

• For current students (“interns”) and for

professionals (“trainees”)

• Professionals must have worked at least 1 year in

field

• Commonly used by school districts,

amusement parks, and theme parks

• Clerical work and unskilled labor are not permitted

• Limited to 18 months


Student (F-1)

• Permits students to work in their field

of study during school (“Curricular

Practical Training”)

• Students may extend their stay after

graduation for work in their field

(“Optional Practical Training”)

• 12 month limit

• May not train worker for U.S. position


Canadian/Mexican Workers (TN)

• Derives from NAFTA

• Must provide professional-level activities in a listed

job classification

• Examples include: Accountant, Engineer, College Professor,

Research Physician, Computer Systems Analyst, Landscape

Architect, Management Consultant, Hotel Manager

• Provides a renewable 3-year period of stay


TN (cont'd): H-1B Alternative?

• No LCA necessary

• No “caps”

• For Canadian nationals

• No USCIS approval necessary (apply at port of entry)

• For Mexican nationals

• Additional requirements

• Application must be made at U.S. Consulate


Extraordinary Ability/

Achievement (O-1)

• O-1A: Sciences, education, business,

or athletics

• Must have “sustained national or international

acclaim”

• O-1B: Arts, motion picture, or

television

• Must prove recognition in the field “through

extensive documentation”

• Provides a renewable three-year

period of stay


Treaty Traders

and Investors (E-1/E-2)

• Permits entry by principal or an employee (executive,

supervisor, or “essential”) of qualifying company

• E-1: To carry on “substantial trade” between countries

• At least 50% of U.S. company’s foreign trade must be with treaty country

• E-2: To develop/direct enterprise in which foreign company

has invested

• Foreign company must be making “substantial” investment


Derivative Visas (H-4, L-2, F-2,...)

• Allows spouse and minor children of foreign worker

to accompany him or her

• Generally, spouses are not permitted to work

• Exception for spouses of L-1, E-1, and E-2 workers


Immigrant Visas


PERM Process

• U.S. Department of Labor has two concerns:

1. That a proper job-search was conducted for a U.S. worker

2. That the immigrant employee is being paid the prevailing wage

• Numerous recruitment steps are required for U.S.

employer

o Any minimally qualified U.S. employee must be interviewed

• If case is approved by USDOL, labor certification is

submitted as part of immigrant petition


Employment-Based Preferences

1. Priority 1 (EB-1): 40,000 visas reserved for extraordinary workers,

outstanding professors/researchers, and executives/managers (no

PERM certification is required)

2. Priority 2 (EB-2): 40,000 visas reserved for workers with advanced

degrees in a professional field

3. Priority 3 (EB-3): 40,000 visas for skilled and unskilled workers

4. Priority 4 (EB-4): Special immigrations

5. Priority 5 (EB-5): Investors

• 140,000 annual employment-based immigrant visas

are apportioned into five categories


Priority Dates and the Visa Bulletin

• Immigrant workers receive a “priority date”

• Based on the filing of his or her PERM or immigrant petition

• When worker’s priority date becomes current, he or she

may seek to adjust status to lawful permanent resident

• Employee usually may continue renewing non-immigrant status while

waiting

• Monthly Department of State “Visa Bulletin” shows

current priority dates


Visa Bulletin (cont'd)


Employer Compliance

Issues


Employment Verification Procedures

1. New hire must complete Section 1 of Form I-9 by end

of first day of work

2. Manager must complete Section 2 within three days of

the date employment begins

3. Completed form should be reviewed and filed

4. Forms of terminated employees should be placed in a

separate file

5. Forms of terminated employees should be destroyed

either three years after hire or one year after

termination, whichever is later


I-9 Documents

• Employee must provide either (i) document from

List A or (ii) document from each of List B and C.

o Must establish both identity and eligibility

• Employer should never direct employee which

documents to provide

• Employer must examine original documents


New Form I-9

• On March 8, 2013, USCIS issued a new, two-page

version of the Form I-9

• Only substantive changes are new data fields for

employees’ passport number, phone number, and

e-mail address

• May 7, 2013, is the last date that employers may

use former version of the I-9

• Available at http://www.uscis.gov/files/form/i-9.pdf

http://www.uscis.gov/files/form/i-9.pdf




New Form I-9 (cont'd)


E-Verify Program

• Non-mandatory electronic option for employment

verification of new employees

o Exception: Required for government contracts and in some states

• Verification process results:

• “Employment Authorized”

• “SSA Tentative Non-Confirmation”

• “DHS Verification in Process


E-Verify Program (cont'd):

Employer Obligations

• Tutorial required

• Fines possible

• List B documents reviewed must include a photo

• I-9s must include a Social Security Number

• Agree to permit DHS and SSA to make periodic site

visits for the purposes of reviewing E-Verify records



Pros and Cons

• Pros

o Employers are presumed not

to have violated the employer

sanctions rules

o Allows immediate cross-check

of I-9 information

o May be of marketing value to

employer participant

(especially in service and

construction industries)

• Cons

o If an employer continues to employ

a worker after final non-

confirmation, legal presumption is

that the employer knowingly

employed an individual lacking

authorization to work

o No “safe harbor” from workplace

enforcement

o E-Verify is used only for new hires



State Laws

Tracker Corp ©2013



Bargaining Issue

• Pacific Steel (2011)

• Facts

• Employer enrolled in E-Verify but did not notify Union

• ICE concluded 200 of 600 workers did not have authorization

• Employer terminated those 200 workers

• Union claimed obligation to bargain

• Settlement

• Reinstatement with backpay for workers terminated due to E-Verify

• Written notice to DHS terminating E-Verify enrollment


Social Security Administration

• SSNVS: Social Security Number Verification Service

• Two Options:

• Verify up to 10 names and SSNs (per screen) online and receive immediate

results. This option is ideal to verify new hires.

• Upload overnight files of up to 250,000 names and SSNs and usually

receive results the next government business day. This option is ideal if you

want to verify an entire payroll database or if you hire a large number of

workers at a time.

• Allows for verification of new AND existing employees


I-9 Raids and Enforcement

• A temporary disruption of workforce and operations is no

longer the greatest risk for managers and executives with

an undocumented workforce

• Charges can include:

• Knowingly hiring or continuing to employ unauthorized workers

• Harboring or conspiracy to harbor

• Aiding and abetting document fraud or theft

• Penalties can include:

• Criminal, civil and administrative fines

• Incarcerations and debarment


I-9 Raids and Enforcement (cont'd)

• Immigrations and Customs Enforcement conducted

over 3,000 audits in FY2012

o Increased from approximately 2,500 in FY2011

o In FY2007, ICE conduct only 250

• From FY2009 to FY2012, aggregate fines grew from $1

million to $13 million

• Auditors require copies of all I-9s, a list of current and

recently terminated employees, and wage reports



• What is the cost of compliance vs. the cost of

noncompliance?




Anatomy of an I-9 Subpoena

• Copies of all I-9 Forms for all current and terminated employees

• List of all current employees with dates of hire maintained in the

course of your business

• List of all terminated employees with termination dates for the last 3

years

• Copies of quarterly wage and hour reports and/or payroll data for all

employees (current and terminated) for the last 3 years

• Quarterly tax statements (IRS Form 941) 3 years

• Account numbers for E-Verify or Social Security Number Verification

Service

• Business information (EIN, TIN, owner’s SSN, owner address

information, telephone numbers and email addresses, Articles of

Incorporation, etc.)


Anatomy of an I-9 Subpoena (cont'd) • Company’s Standard Operating Procedure (SOP) or Policy delineating hiring practices

• Organizational chart of management

• List of all Contractors, Sub-Contractors and Independent Contractors utilized in the

course of business that can be produced from your accounts payable or cash

disbursements journals for the last 3 years

• List of all recruiters or referrers for a fee utilized in the last 3 years

• List of all temporary labor agencies utilized in the course of your business that can be

produced from your accounts payable or cash disbursements journals for the last 3

years

• Copies of all Forms I-129, I-140 and Labor Certifications submitted or received for last 3

years

• Copies of Form 1099 for all independent contractors for last 3 years

• Monthly payroll reports with wage detail by employee


“IMAGE” Program

• ICE

Mutual

Agreement between

Government and

Employers

• Allows employers to become “IMAGE Certified”, with

benefits including:

• Avoidance of lawsuits and other legal actions

• Fine mitigation

• No Form I-9 inspection for a minimum of two years


“IMAGE” Program (cont'd)

• To become "certified", employers must:

• Review and sign an official IMAGE partnership agreement with ICE

• Complete self-assessment questionnaire

• Enroll in E-Verify

• Enroll in SSNVS

• Adhere to IMAGE Best Hiring Practices

• Undergo an I-9 audit conducted by ICE


Changes to the

System?


Deferred Action for

Childhood Arrivals (DACA)

• Temporary, stopgap alternative to DREAM Act

• Not a change in law – exercise of administrative

discretion

• Illegal immigrants who arrived in the U.S. as children

and meet certain other criteria (enrolled in high school

or hold a degree, no criminal history) can apply for

“deferred action”

• Government will not deport or remove DACA enrollees


omprehensive

mmigration

eform

C

I

R


• January 21, 2013 - President Obama notes

comprehensive immigration reform in his Second

Inaugural Speech

“Our journey is not complete until we find

a better way to welcome the striving, hopeful immigrants who still see

American as a land of opportunity….”

CIR Timeline


• January 28, 2013 – “Gang of Eight” release report

outlining set of principles to guide comprehensive

immigration reform

ALEX WONG / GETTY IMAGES

CIR Timeline


Gang of Eight’s “Four Pillars”

1. Create a “tough but fair” path to citizenship for illegal

immigrants, “contingent upon securing our borders”

2. Reform immigration system to make U.S. more

attractive

3. Create an effective employment verification system that

will “end the hiring of future unauthorized workers”

4. Establish an improved process for admitting future

workers


Pillar One: A Path to Citizenship

• Undocumented immigrants should earn “probationary

legal status” and should be put at the “back of the line”

• Should be required to take certain steps

• Exceptions should be made for minors and agricultural workers

• No undocumented immigrant should earn a green card

until certain border security measures are implemented

• New efforts and methods

• New commission made up of border officials


Pillar Two: Improving the System

• Goal should be to fix a “broken system” that makes

legal entry “insurmountably difficult” and “discourages

the world’s best and brightest from coming” to the U.S.

• New system of legal immigration procedures and

opportunities should be developed

• Focus on recognizing “important characteristics”

• Reduce current backlogs

• Legal permanent residency should be available for STEM graduate


Pillar Three: Strengthening

Employment Verification

• System should be “tough, fair, effective and mandatory”

• A “non-forgeable electronic means” of verification

• Employers should be held more accountable

• “Stiff fines and criminal penalties”

• “Procedural safeguards” should ensure due process

and “make it more difficult for unauthorized immigrants

to falsify documents”


Pillar Four: Admitting New Workers

• Should discourage illegal entry by creating a “humane

and effective” system for aliens to find U.S. work

• Employers should be able to hire lower-skilled workers

“in a timely manner” when U.S. workers are

“unavailable or unwilling”

• Sliding scale should be used

• Employers should be able to hire immigrants whenever U.S.

recruitment is unsuccessful

• Designed to serve the agricultural industry


• January 29 and February 13, 2013 – President Obama

explains his plans for comprehensive immigration

reform in a speech in Las Vegas, Nevada and in his

2013 State of the Union Address

ABC NEWS

ISAAC BREKKEN / AP

CIR Timeline


White House’s “Key Principles”

1. Continue to strengthen border security

2. Crack down on employers hiring undocumented

workers

3. Hold undocumented immigrants accountable before

they can earn citizenship

4. Streamline the legal immigration system


Gang of Eight vs. White House Plans

Gang of Eight “Pillar” White House “Principle”

“Create a Path to Citizenship” “Earned Citizenship”

“Reform Legal Immigration System” “Streamlining Legal Immigration”

“Create Effective Employment

Verification System”

“Crack Down on Hiring of

Undocumented Workers”

“Establish Improved Process for

Admitting Future Workers” --

-- “Continuing to Strengthen Border

Security”


Principle One: Strengthening Borders

• Would improve systems and procedures at the border

• Invest in infrastructure and technology

• Facilitate public/private partnerships

• Would combat transnational and immigration crime

• New crimes and penalties

• Border community liaisons

• Would expand and refocus the removal process

• Efficient removal of criminals and security threats

• Improve immigration courts


Principle Two: Cracking Down on

Illegal Hiring

• Would phase-in mandatory electronic employment

verification using federal government databases

• Phased in over 5 years

• Penalties significantly increased, with new penalties

• Would mandate use of a new, fraud-resistant, tamper-

resistant Social Security card

• Would protect all workers against retaliation for exercising

labor rights

• New “labor law enforcement fund” to ensure compliance


Principle Three: Earned Citizenship

• Would create provisional legal status

• Available only after current legal immigration backlogs are cleared

• Would allow DREAMers to earn citizenship by

attending college or serving in the Armed Forces for at

least two years

• Would create new procedures for judicial and

administrative review and would provide additional funding

to eliminate fraud


Principle Four: Streamlining Legal

Immigration

• Would temporarily increase cap on number of immigrant

and non-immigrant visas

• “Certain categories” of employers would be permanently exempt

• Would create more flexibility for low-risk visa applicants

• Would “staple” a green card to STEM graduate degrees

• Would create new “startup visa” and additional visa

categories for foreign investors


• April 16, 2013 – Senators introduce the "Border

Security, Economic Opportunity, and Immigration

Modernization Act of 2013"

• Title I, Border Security

• Title II, Immigrant Visas

• Title III, Interior Enforcement

• Title IV, Reforms to Nonimmigrant Visa

Programs

• Title V, Jobs for Youth

CIR Timeline


• June 27, 2013 – U.S. Senate passes the Border

Security, Economic Opportunity, and Immigration

Modernization Act of 2013, sends bill to House of

Representatives…

CIR Timeline


• U.S. House of Representatives fails to take action on

the Senate bill

CIR Timeline


• October 2, 2013 – Senate Democrats introduce "new"

Border Security, Economic Opportunity, and

Immigration Modernization Act of 2013

CIR Timeline


• November 21, 2013 – House Speaker John Boehner

addresses questions regarding the possibility of

immigration reform during this term

“Is immigration reform dead? Absolutely not…. There are a lot of private

conversations that are underway to try to figure out, how do we best move on a common-sense, step-by-step basis to

address this very important issue…because it is a very important

issue.”

CIR Timeline


• December 9, 2013 – Representative Devin Nunes (R-

Cal.) reacts to immigration proponents' aggressive

protests

“They've killed reform. It’s over. It’s dead. They killed it.”

CIR Timeline

POLITICO


• January 28, 2014 – President Obama discusses

immigration during State of the Union:

CIR Timeline

“[I]f we are serious about economic growth, it is time to heed the call of business leaders,

labor leaders, faith leaders, and law enforcement -- and fix our broken

immigration system. Republicans and Democrats in the Senate have acted. I know that members of both parties in the House

want to do the same…. So let’s get immigration reform done this year.”


• January 30, 2014 – House Republicans release memo

setting forth six principles for reform:

• Border Security and Interior Enforcement Must Come First

• Implement Entry-Exit Visa Tracking System

• Employment Verification and Workplace Enforcement

• Reforms to the Legal Immigration System

• Youth

• Individuals Living Outside the Rule of Law

CIR Timeline


• January 2014 – House Republicans react to their six

principles and the State of the Union

CIR Timeline

• "I think this is the time to deal with it. But how we deal with it is going to be critically important." – Speaker Boehner

• "It’s probably months out, I don’t know." – Rep.

Greg Walden, R-Ore.

• "It's political suicide for Republicans to do this." –

Rep. Steve King, R-Iowa


Conclusion: What to Expect

LATINO DECISION


Got questions?


Brett A. Strand (815) 490-4917

[email protected]

©2013 Brett A. Strand – All Rights Reserved