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Top Business Immigration Issues
October 30, 2015
Hiring Temporary Foreign Workers (some basics) Worksite Enforcement and Compliance Updates
Overview:
U.S. CITIZENS VS. IMMIGRANTS VS. NON-IMMIGRANTS
Immigrants = U.S. Permanent Resident or “green card holder” Intent to come to U.S. permanently Limited numbers allowed Potential to become U.S. CitizenNon-ImmigrantAlphabet Soup (A-V)
F-1 VISA (STUDENT)
No off-campus work first year during the first academic yearSome on-campus employment allowed After first academic year. Curricular Practical Training (CPT) Optional Practical Training (OPT) STEM OPT Pre-completion or post-completion
F-1 VISA (STUDENT)
Related to area of study Authorized prior to starting any work by DSO and USCIS STEM extension-- E-Verify employer required File STEM before OPT expires Cap-gap coverage
H-1B VISA
Most commonly requested of the H visas Specialty occupation Coming temporarily to the U.S. Maintenance of foreign residence not required Permanent position Concurrent and part-time allowed
H-1B VISA
H-1B cap: 65,000 Additional 20,000 available for those with master’s degree or
higher Once 20,000 reached, join normal pool Lottery Petition accepted first five business days Then luck of the draw
H-1B VISA
Cap-exempt Universities and related or affiliated nonprofits Nonprofit research organizations; and Government research organizations
H-1B VISA
Who is an Employer? Employ worker in U.S.; Employer-employee relationship IRS tax number required Includes partnership or sole proprietor
H-1B VISA
What is a Specialty Occupation? Theoretical and practical application of a body of highly
specialized knowledge; and Attainment of a bachelor’s or higher degree in the specific
specialty (or its equivalent) as a minimum for entry into the occupation in the United States
H-1B VISA
Employee—four ways to qualify U.S. bachelors or higher degree required by the specialty
occupation, Equivalent foreign degree, An unrestricted state license to fully practice a specialty
occupation, or Have the education or specialized training and/or
progressively responsible experience equivalent to completion of a U.S. baccalaureate or higher degree and recognized expertise in the specialty occupation through progressively responsible positions
H-1B VISA
What are the Employer’s Responsibilities? Wages and working conditions Notices Public Access File Return Transportation Home
H-1B VISA
Extensions Granted for initial 3 year period, 6 year max (some
exceptions) Leave country after 6 years Recapture of time Ongoing employer-employee relationship Continuing wage obligations Dependents extend status via I-539
H-1B VISA
Portability May work for new employer upon filing of new H-1B petition Other requirements still in force
H-1B VISA
No “benching”Termination of H-1B employee No grace period (but usually grant new employer petition if
filed in “reasonable” amount of time) Must offer to pay transportation home (recommended to be
in writing) Withdraw H-1B petition or potential for wage claimJob offer to potential H-1B (Make contingent upon obtaining valid work authorization)Dual intent
L VISA INTRACOMPANY TRANSFEREE
Continuously employed for one of the three years prior to commencement of proposed U.S. employment with a foreign employer that is related to the U.S. employer (a foreign affiliate or subsidiary) Qualifying company relationship Doing business in U.S. and abroad
L-1A INTRACOMPANY TRANSFEREE EXECUTIVE OR MANAGER
Enter US as executive or manager for branch of the same employer or one of its qualifying organizations
Executive = decisions of wide latitude without much oversight
Managerial-- supervise and control or management an essential function at a high level, without direct supervision
7 year max stay If seeking to establish a new office, additional requirements
and maximum initial stay of one year
L-1B INTRACOMPANY TRANSFEREE SPECIALIZED KNOWLEDGE
Provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations. Specialized knowledge = special knowledge possessed by an individual of the
petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or
an advanced level of knowledge or expertise in the organization’s processes and procedures
L VISA INTRACOMPANY TRANSFEREE
Blanket petition available Spouse MAY apply for work authorization Dual intent
TN (NAFTA)
Must be nationals of either Canada or Mexico Coming to U.S. to work in profession listed on NAFTA
schedule Generally require a Bachelors degree in field—employee
must have required credentials Three year stay, renewable indefinitely NOT dual intent so may have to consider change of status if
pursuing green card
WORKSITE ENFORCEMENT
Employer’s Affirmative Duties Must not “knowingly” hire undocumented workers (illegal aliens)
or continue to employ them once employer learns of unauthorized status; and
Verify employment eligibility, through I-9 form, of every employee, regardless of citizenship or immigration status
DHS WORKSITE ENFORCEMENT STRATEGY
On April 3, 2009, the Department of Homeland Security (DHS) issued a press release…
“[U]pdated worksite enforcement guidance was distributed to Immigration and Customs Enforcement (ICE), which reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country's laws and knowingly hiring illegal workers.
DHS WORKSITE ENFORCEMENT: Iowa Cases
2008 Postville—Agriprocessors
2011 Roofing company
2012 Construction company
2011 and 2015 Dairy farmers
COMPLIANCE RESOURCES AND UPDATES
Form I-9 Central Form I-9 Webinar on DemandCommon question: Mistakes/missing forms
http://www.uscis.gov/i-9-central/form-i-9-webinar-demand-part-12
Handbook for Employers
COMPLIANCE RESOURCES AND UPDATES
E-Verify Voluntary for most employers Mandatory for most federal contractors and in some states New E-Verify Employee Rights Toolkit (10/15/15) at http://
www.uscis.gov/e-verify/employees/employee-rights-toolkit E-Verify Record Disposal
TAKE AWAYS
Evaluate options for hiring of non-immigrants Form I-9 Self Audits Mandatory E-Verify in future?
Disclaimer: This presentation is designed and intended for general information purposes only and is not intended, nor should it be construed or relied on, as legal advice. Please consult your attorney if specific legal information is desired.
