Winning Strategies for Employing Foreign Nationals

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Winning Strategies for Employing Foreign
Nationals
September 30, 2003
Matthew T. Phillips, Esq.
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LIVING AND WORKING IN THE U.S. NONIMMIGRANT
VISAS
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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

• United States Citizenship and Immigration
  Service/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 AND COMPLIANCE ISSUES
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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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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
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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
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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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CHANGES IN 2003 AND OUTLOOK FOR
2004REGISTRATION, SECURITY CHECKS, SEVIS, AC21,
REORGANIZATION AND PERM
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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