Employing Foreign Nationals Amid EverChanging Immigration Laws

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Employing Foreign Nationals Amid Ever-Changing
Immigration Laws
May 13, 2003
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LIVING AND WORKING IN THE U.S. NONIMMIGRANT
VISAS
Matthew T. Phillips, Esq.
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THE BASICS KEY TERMS AND KEY PLAYERS
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Terms/Definitions

• Passport
• Visa
• I-94 card
• U.S. citizen
• Immigrant/permanent resident
• Nonimmigrant

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Players in Immigration World

• Bureau of Citizenship and Immigration
  Services/Dept. of Homeland Security
• U.S. Consulates and Embassies
• Department of Labor

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NONIMMIGRANT (TEMPORARY) VISAS
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Visa Waiver Program

• Only available to nationals of certain countries
• Very useful for short trips, especially where
  there is no time to file documents with BCIS or
  go to the Consulate

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B-1 (Business Visitors) Visa

• Available in only limited situations
• Very effective if
• May be required to remain in U.S. more than 90
  days (maximum stay under Visa Waiver Program)
• May, at a later date, want to change to another
  visa category (with a longer authorized stay)

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H-1B (Professionals) Visa

• Available regardless of how U.S. business is
  owned and the nationality of employee (critical
  limitations in other categories)
• Labor Condition Application
• Basic requirements

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• Note Present cap of 195,000 to be reduced to
  65,000 in Fiscal Year 2004 (starting October 1,
  2003)
• For Fiscal Year 2002 (ending September 30, 2002),
  79,100 of 197,537 approvals counted against cap

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L-1 (Intracompany Transferee) Visa

• Excellent choice if requirements can be satisfied
  -- especially if employee ultimately intends to
  obtain Permanent Resident status
• Basic requirements
• L-1A vs. L-1B

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E-1 (Treaty Trader) Visa

• Available to foreign businesses if commercial
  treaty exists between U.S. and that country
• Good choice if L-1 is not available and
  substantial trade requirement can be satisfied
• Additional requirements

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E-2 (Treaty Investor) Visa

• Also available to foreign nationals if treaty
  between U.S./foreign country
• Another good choice if L-1 not available and can
  establish substantial investment
• Additional requirements

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TN Visas Under NAFTA

• Available in 1 year periods to Canadian and
  Mexican professionals
• Job position must appear on NAFTA list of
  professionals
• Canadians can apply directly at the
  border

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F-1 (Student) Visa

• Employment available before graduation through
  Curricular Practical Training (CPT), after
  graduation with Optional Practical Training (OPT)
• Employment authorization document (EAD) needed
  for OPT, but not for CPT

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PRE-EMPLOYMENT SCREENING, MAINTENANCE OF STATUS
AND COMPLIANCE ISSUES
Andrew J. Behnke and Jennifer R. Pack
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Why are pre-employment considerations important?
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As employers, we need to know

• If person who is authorized to work in U.S. can
  work for your company now
• What issues relating to persons current or past
  immigration status could affect your ability to
  employ this person today
• What, if any, are steps we can take to streamline
  process of getting foreign national employed by
  your company

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The appropriate inquiry

• Are you currently authorized to work in the
  United States and, if so, on what basis?

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Can they work for your company?

• H-1B
• L-1A and L-1B
• E-1/E-2
• L-2 and E-2

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• H-3 and J-1
• F-1
• Asylees/Refugees
• Adjustment applicants
• I-551/Green card holder

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Processing Issues

• Whats going on at the BCIS?
• In the news
• Security issues
• Consular issues
• Third Country National processing

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Other Considerations Before Employment Begins

• Dependents
• Share similar concerns to employee, i.e.
  maintenance of status admission, etc.

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• I-485 stage EAD employment
• Under American Competitiveness in the 21st
  Century Act (AC21) adjustment applicants may
  port jobs if required criteria are met
• Application to adjust status has remained
  unadjudicated for 180 days or more and
• Applicants new job falls under the same
  occupational classification

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• We need to be more aware and make more informed
  decisions

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Maintenance of Status and Compliance Issues
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Why is This Important?

• Post 9/11 - the world has changed!
• Affects foreign nationals and employers
• Increased scrutiny
• At consulates
• At airports
• BCIS investigations

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• 3 and 10 year bars
• Triggered upon expiration of I-94 card
• If 180 to 359 days ? 3 year bar
• If greater than 360 days ? 10 year bar

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How to Avoid Problems

• Human resource representative keeps copies of
  I-94 card
• Review after each international trip

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F-1 Status

• How to maintain status
• Minimum of 12 credits
• Optional practical training
• Employment Authorization Document (EAD Card)
  needed

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• Within 60 days after EAD card expires, must
• Obtain new I-20 for another program of study
• - or -
• Change status (typically H-1B)
• - or -
• Return to home country

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H-1B Status

• How to show maintenance of status
• Be in possession of
• Valid I-94 Card
• Labor Condition Application (LCA)
• Be sure that salary and work location are correct
  
• Recent paystubs (no older than 1 month)

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How Long Can a Foreign National Be in H-1B
Status?

• 6 years maximum stay
• 7th year extension
• Available when labor certification is filed at
  least 365 days prior to reaching end of 6th year

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Additional Issues to Consider

• Significant change in job duties
• Triggers need for amended H-1B petition
• Benching
• Refers to periods of non-productive time
• Employers are required to pay aliens wages for
  non-productive time except when due to non-work
  related factors

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• Employment termination letters to the BCIS -
  crucial!
• Only way to prove that there has been a bona
  fide termination

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L-1 Status

• Maintenance of status issues
• Change of employer due to acquisition of company
• Triggers amended L-1 petition
• Successor-in-interest

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• Length of stay
• 7 years maximum stay for L-1A
• 5 years maximum stay for L-1B
• Change of status to H-1B if qualified

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Adjustment of Status Applicants

• Common issues
• Portability
• Can now work for a different employer after I-485
  application has been pending for 180 days or more
• Must be same job classification

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• International travel issues
• Enter U.S. with valid non-immigrant visa and
  original I-485 receipt notice
• or
• Enter U.S. with Advance Parole travel document
• Must have EAD card

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H-1B/LCA Compliance Issues

• How to prepare for DOL audits
• Maintain public access files (PAF), which
  include
• Copy of ETA-9035(e) with original signature for
  each work location
• http//www.lca.doleta.gov
• Documentation of wage paid to employee (and
  adjustments as necessary)

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• Actual wage memo
• Documentation used to establish prevailing wage
• Evidence that LCA was properly posted
• Evidence that LCA was provided to H-1B employee
• PAF must be retained for one year beyond last
  date of employment of H-1B worker

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I-9 Compliance Issues

• How to prepare for DOL audits
• Maintain separate I-9 file, which should be kept
  apart from personnel records
• Maintain a Form I-9 for all new hires, regardless
  of nationality

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• If copies of identification documents are kept
  with the forms, must be done for each and every
  employee
• Must maintain forms for 3 years after start date
  or 1 year after termination, whichever is later

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OBTAINING THE GREEN CARD WITH AND WITHOUTLABOR
CERTIFICATION
Ellen Freeman, Esq.
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Labor Certification

• Requires employer to convince Department of Labor
  that, by hiring foreign national,
  company/organization is not taking job away from
  qualified and interested U.S. worker

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File Application for Alien Labor Certification
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• Part A states information concerning position at
  company, such as
• Identify the employer
• Exact job duties
• Conditions of employment
• Title of supervisor
• Number of subordinate employees
• Minimum job requirements

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• Part B provides information regarding specific
  foreign national
• Name, address and visa status
• Academic background
• All other relevant skills/licenses
• Employment history
• Documentation available to support academic
  background and professional experience

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• Part B must show that employee himself or herself
  obtained all of necessary academic background and
  professional skills prior to joining petitioning
  employer

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Recruitment Period

• Once application is entered into system, employer
  will receive advertising instructions as to how
  and where to advertise position.
• Recruitment Campaign
• Ad in local newspaper of general circulation for
  3 consecutive days, including a Sunday, and
• Internal Job Posting

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Post-Recruitment Period

• Employer receives resumes of interested
  applicants
• Employer must contact each applicant by telephone
  and, if necessary, invite applicant for personal
  interview

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• If all can be rejected, prepare recruitment
  summary summarizing companys unsuccessful
  efforts to recruit American workers.
• Recruitment summary is filed with local office of
  the Department of Labor, where it is later
  forward to regional (federal) office.

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Processing Time

• About 11 months for Pennsylvania but varies for
  each state and region

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Reduction-in-Recruitment

• Allows employer to utilize companys past
  recruitment efforts completed in six-month period
  prior to date on which Form ETA-750 is filed

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• Rationale since employer has already attempted
  to find qualified U.S. workers and was unable to
  do so, there is no reason to engage in duplicate
  and repetitive recruitment campaign.
• If company has not advertised position in past 6
  months, it can commence recruitment campaign
  specifically to include with application.

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• Advantages
• Entire process is simplified and more convenient
  - fewer deadlines
• Significantly faster processing at Department of
  Labor
• Gives employer and employee good picture of
  market - are there qualified U.S. workers in your
  geographic area
• If ad results in wide response, can stop process
  without investing much time, money and effort

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• Disadvantages
• Ad specifies employer, therefore, likely results
  in more applicants for position (as compared to
  blind ad)
• More expensive - must have at least 2 Sunday ads,
  plus other sources of recruitment

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• Summary
• Requires time-consuming and urgent attention of
  companys HR throughout process, coupled with
  significant financial investment

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• Benefits of proceeding with labor certification
• 7th year extension of H-1B status
• Shows commitment on part of employer

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Avenues to Avoid Labor Certification Application

• Immigrant visa petition under one of the
  employment-based first or second categories
• Outstanding researcher
• Multinational executive or manager
• Person with extraordinary ability
• National interest waiver

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Outstanding Researcher

• Must provide evidence of at least three of
• Documentation of receipt of major prizes or
  awards for outstanding achievement in academic
  field
• Documentation of membership in associations in
  academic field that require outstanding
  achievements of their members

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• Published material in professional publications
  written by others about work in academic field
• Evidence of participation, either individually or
  on panel, as judge of work of others in same or
  allied academic field

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• Evidence of original scientific or scholarly
  research contributions to academic field
• Evidence of authorship of scholarly books or
  articles (in scholarly journals with
  international circulation) in academic field

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Multinational Executive or Manager

• Foreign national who in 3 previous years was
  employed for at least 1 year by firm or
  corporation or other legal entity or affiliate or
  subsidiary of petitioner who is currently working
  in U.S. for related company also in managerial or
  executive capacity

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Person with Extraordinary Ability

• Criteria to establish
• Receipt of major, internationally-recognized
  award, such as Nobel Prize

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• Evidence or documentation related to persons
  work of at least three of the following
• Nationally or internationally recognized prizes
  or awards
• Membership in association requiring outstanding
  achievements of members, as judged by national or
  international experts
• Published in professional or major trade
  publications or major media about person

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• Judge of work of others in same or allied field
• Original scientific, scholarly or
  business-related contributions of major
  significance
• Authorship of scholarly articles in professional
  journals or other major media
• Critical or essential position in organization
  with distinguished reputation
• High salary or other remuneration

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National Interest Waiver

• Improving U.S. economy
• Improving wages and working conditions of U.S.
  workers
• Improving education and training programs for
  U.S. children and underqualified workers
• Improving health care

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• Providing more affordable housing for younger
  and/or older, poorer U.S. residents
• Improving environment of the United States and
  making more productive use of natural resources
• Request from interested U.S. government agency

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Examples of Information/Documentation Required

• Awards bestowed and description of significance
  of these award(s)
• List of professional memberships and requirements
  for membership
• Citations and copies of articles written by
  others about foreign nationals work

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• Judging work of others in field
• List and copies of all publications
• List of board positions or similar positions with
  well-known organizations
• Other indicia of stature in field
• Letters from well-known professionals attesting
  to foreign nationals stature in field

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ALTERNATIVES TO EMPLOYMENT BASED VISASFAMILY
BASED APPLICATIONS INCLUDING THE K-1
VISACONSULAR PROCESSING VERSUS ADJUSTMENT OF
STATUS
Reneé Cortazzo and Sharon A. KimbleMatthew T.
Phillips, Esq.
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Substantive Law

• There are several means of acquiring the green
  card, including employment based immigration,
  the diversity visa lottery and asylum/refugee
  based applications

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• The foreign national must be sponsored by a
  relative who files a petition with the Bureau of
  Citizenship and Immigration Services in order to
  have the relative classified as someone qualified
  to immigrate

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• These include
• Immediate relatives of U.S. citizens
• Other close family members of U.S. citizens
• Spouses and unmarried sons and daughters of
  permanent residents

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• Immediate relatives include
• Spouses of U.S. citizens
• Children of U.S. citizens (provided the child is
  unmarried and under the age of 21)
• Parents of U.S. citizens (provided citizen is 21
  years of age or older)

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• Once an immigrant visa petition is approved, the
  foreign national will complete either adjustment
  of status if they are present in the United
  States, or consular processing if abroad

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• With respect to spouses, the spouse of the
  citizen whose marriage was created within 2 years
  prior to being granted permanent resident status
  is granted residence on a conditional basis
  which must later be removed

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• With respect to spouses, the marriage must have
  been valid at the time it was performed
• The marriage must still be in existence
• The marriage must not have been entered into for
  the purpose of conferring permanent resident
  status on the alien

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• Please note that common law marriages are not
  recognized for immigration purposes, unless they
  are legal in the jurisdiction of residence or
  last residence
• Same-sex marriages are not recognized for
  immigration purposes

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Procedure

• Form I-130, with supporting documentation, and
  other required documents, are filed at the
  appropriate Service Center
• Form I-485, the application for adjustment, is
  filed if the beneficiary is an immediate
  relative

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• Adjustment of status typically involves the
  following
• The filing of the paperwork with the BCIS
• An interview at a local BCIS office in order to
  review the documents and determine whether the
  marriage was in fact valid

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• Consular Processing involves the following
• Upon the approval of the immigrant visa petition,
  the national visa center is notified
• A packet of documents is received, completed and
  returned to the nationalvisa center
• Interview is scheduled at the U.S. Consulate
  abroad

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K-1 Visa

• The K-1 Visa is available to the fiancée of a
  U.S. citizen
• The paperwork is filed with the BCIS office with
  jurisdiction over the residence of the applicant
• Generally, the applicant and the
  beneficiary/fiancée must have met on at least one
  occasion prior to the filing of the petition

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• Upon approval of the K-1 visa application, the
  beneficiary/fiancée obtains the K-1 visa stamp at
  a U.S. Consulate abroad
• The fiancée must enter the United States within
  the time period provided on the visa stamp

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• Within 90 days of entry in the United States they
  must be married to the U.S. citizen, or are
  required to leave the United States
• An adjustment application must be filed following
  the marriage

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K-3 Visa

• For spouses of U.S. citizens who are outside of
  the United States and who do not otherwise hold a
  U.S. immigration status, the K-3 visa is
  available for the spouse, and the K-4 visa for
  their children under 21

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Hypothetical One

• Suresh Shammugan, an Indian national, is employed
  in H-1B nonimmigrant visa status by ABC Computer
  Corporation. He has been present in the United
  States in H-1B status for four and one-half
  years. Suresh recently discussed the possibility
  of a labor certification filing by his employer
  on his behalf.

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• Suresh hails from the city of Mumbai, India, and
  it is therefore this consulate at which he would
  be required to complete consular processing if
  this is the option that he chooses.

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Hypothetical Two

• Michael Wallace, an English national, recently
  met Amy Rogers, a U.S. citizen, during his
  vacation in the United States. Over time, they
  established a relationship which has developed to
  the point where Amy and Michael are planning to
  be married.

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• Michael has a vacation in the United States
  planned for next month. He is seriously
  considering getting married during his vacation
  and, thereafter, beginning the process to obtain
  the green card. Additionally, Michael is a
  software programmer, and has recently obtained an
  offer of employment from a software company in
  Amy's hometown of Pittsburgh, Pennsylvania.

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CHANGES IN 2002 AND OUTLOOK FOR 2003
REGISTRATION, SECURITY CHECKS, SEVIS, AC21,
REORGANIZATION AND PERM
Lawrence L. Lebowitz, Esq. and Matthew T.
Phillips, Esq.
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Registration

• Nationals of certain countries required to
  register upon entry into the United States, and
  to register upon their departure from the United
  States
• These groups include nationals or citizens from a
  number of countries

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Additional Security Checks

• Appointments required more often for visas
• State Department clearances required more often

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SEVIS

• Tracks F, M and J visa holders
• Tracks issuance of Forms I-20 and DS-2019
  (formerly IAP-66)
• Various changes with regard to student or program
  must be reported
• Additional restrictions on extensions, transfers,
  reinstatement

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Increased BCIS Scrutiny/Enforcement

• Airport
• On-site visits/audits
• More aggressive (deportation)

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AC 21/Seventh Year Extensions

• Available where labor certification (or
  immigration visa petition) filed one year prior
  to expiration of 6 years of H-1B status

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• Seventh year extensions available in H-1B status
  until a final decision made to
• Deny labor certification or, if approved, the
  immigrant visa petition on which it is based
• Deny an employment based immigrant visa petition
  (where no labor certification required)
• Grant or deny consular processing/adjustment of
  status

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Reorganization

• On March 1, 2003, INS abolished
• Department of Homeland Security (DHS) to handle
  immigration (and other functions)

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• DHS contains
• Bureau of Immigration and Customs Enforcement
  (BICE) - interior enforcement
• Bureau of Customs and Border Protection (BCBP) -
  interior enforcement
• Bureau of Citizenship and Immigration Services
  (BCIS) - benefits/adjudications

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PERM

• Status of the PERM program
• Final regulations expected by July 2003
• Implementation is expected by October 2003
• Similar to present reduction-in-recruitment
  process, with additional certifications

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• Proposed changes with PERM
• Specific types of advertising required
• Limitation on the use of special requirements
• Elimination of the business necessity rule
• Elimination of alternative experience
• Consideration of U.S. workers who could be
  trained to do the job

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• Require payment of the prevailing wage, i.e., 95
  not acceptable
• Revocation for cause
• Note the final regulation will be probably be
  less restrictive than the DOL proposals

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QUESTIONS AND ANSWERS