International Working Regulations U.S. Overview

NAITA November 5, 2014

Nonimmigrants vs. Immigrants

•Foreign nationals coming to the U.S. temporarily •Some are permitted to have “dual intent”

- May enter as a non-immigrant and pursue permanent residence

- Available to H-1Bs and L-1s only

•“Alphabet Soup” of nonimmigrant classifications, from A to V

•Immigrants are those who wish to permanently reside in the U.S. Must obtain an Immigrant Visa, Commonly known as a Green Card

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The Nonimmigrant Process

• Employer files petition for nonimmigrant classification with USCIS - Most employment-based nonimmigrant classifications require nonimmigrant

worker petition - Some categories don’t require USCIS petition; FN applies directly at

consulate or, if Canadian, at U.S. port of entry. - If required for NIV classification, employer may also need labor condition

application from Department of Labor • If USICS is unsatisfied with the evidence received, a request for additional

evidence (RFE) will be issued. In most cases, employers have 90 days to respond to the government’s request. - A majority or RFE’s received request additional documents to evidence that

an employer-employee relationship exists when an employee is placed at a third-party client site.

• If petition is approved, USCIS issues Form I-797 Notice of Action. • Foreign national submits a visa application to a U.S. consulate.

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Business Visas

Common business categories: •Business visitors (B-1) •Professionals (H-1B, TN, E-3, H-1B1) •Intracompany transferees (L-1) •Foreign nationals of extraordinary ability (O-1)

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B-1 Business Visitor Requirements, Restrictions and Corporate

Compliance

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B-1 Visa Requirements

•FN must remain employed by the foreign employer •FN’s activities in U.S. must benefit foreign employer •FN’s activities must be controlled by the foreign employer

•FN must remain on foreign payroll - Cannot receive compensation from a U.S. source EXCEPT for

reasonable expenses, e.g., travel, meals, lodging and the like

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B-1 Permissible Activities in General •Participate in business meetings and conferences •Confer with U.S. colleagues •Engage in commercial transactions that do not involve productive work - Take orders for goods manufactured abroad - Receive information

•Negotiate contracts •Receive short-term training in classroom environment

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Common Visa Application Problems • Applicant lacks ability to communicate purpose of visit, details regarding U.S. activities

• Fraud or inadmissibility issues - Applicant must be sure to disclose all details regarding previous

stays, and notify immigration team of any concerns prior to attending visa interview

• Applicant lacks complete documentation • Consulate delays

- Lengthy visa appointment wait times - Administrative processing - 221(g) notices - Erroneous denials

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H-1B Overview, Requirements, and Current Trends

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H-1B: Specialty Professionals • H-1B category is open to professionals working in a “specialty occupation”

• Minimum entry-level requirement for job is Bachelor’s degree or equivalent

• 3 for 1 rule: 3 yrs. experience = 1 yr. of college

• Employer must get Labor Condition Application (LCA) certified by DOL prior to filing petition (pay required wage, post notice of hiring etc.)

• Six-year maximum stay (can extend beyond 6 years under certain circumstances if pursuing permanent residence)

• Dependent spouses do not have work authorization

• Employer is obliged to offer reasonable costs of return transportation for dismissed employee

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H-1B Portability • Enables current H-1B nonimmigrants to begin employment with new employer upon USCIS receipt of new employer’s H-1B petition

• Eligibility Requirements - FN must have been lawfully admitted into the US - No unauthorized employment subsequent to lawful admission - Non-frivolous H-1B petition must be filed for new

employment before expiration of current status • Employment guidelines

- Permission for employee to start on day USCIS received H-1B petition

- If H-1B petition denied, employee must be taken off payroll and stop work immediately

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H-1B Consular Issues • Discrepancy between salary on petition and final transfer documentation

• Change in location of transfer • Long delay between validity date and arrival • Questions regarding whether entry-level employee can be managed or supervised remotely

• 221(g) notices questioning already-certified LCA • Assertions that the wage level listed on a certified LCA does not match the beneficiary’s qualifications

• Apparent perception that most applicants are at a Level I wage

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The ‘Neufeld Memo,’ More than Four Years Later

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H-1B Evidence Requirements and Eligibility Standards

• USCIS guidance memo dated 1/8/2010 (“Nuefeld Memo”); FAQ

updated 03/2012 - Enhanced evidence requirements for employers filing H-1B petitions - Strict restrictions on use of H-1B category for foreign nationals

placed at 3rd party worksites, self-employed individuals, business owners, chief executives

• H-1B petitioners must demonstrate right to control a foreign beneficiary’s work by preponderance of evidence

• Extensive documentation of employer-employee relationship with foreign national now required, especially for 3rd party placements: - Work itinerary - Employment contract or letter from clients confirming engagements - Excerpts from client contracts showing petitioner’s right to control H-1Bs:

according to 03/12 FAQ, not mandatory, but adjudicators may request them

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H-1B Amendments: When Necessary, And When Not

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Change in Work Location – Is There a Need to File An Amended Petition?

•8 CFR 214.2 – need to amend test turns on materiality of change in terms and conditions of employment

•10/23/03 Hernandez Advice Letter to ACIP states no need if simply a geographic move, provided “the LCA has been filed and certified for the new employment location, the appropriate worksite posting has taken place, and other wage and hour obligations are met.” Note of Caution: Hernandez cautions that legacy INS correspondence discourages “speculative employment”

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‘Transfer LCAs’ for Workforce Mobility Within the U.S.

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Potential LCA Compliance Issues Negating Application of the Hernandez Letter •Appropriate worksite posting has not taken place at original worksite or new worksite within same SMSA

•Multiple slot LCA relates to different occupational classification and/or wage level

•H-1B dependent employer (or prime) failed to obtain proper non-displacement attestation

•H-1B dependent employer failed to conduct or document prior recruitment

•Other defect in previously approved LCA 18

Potential Consequences of Failure to Amend •FDNS visits original third party worksite – Non-presence results in notice of revocation

•Worker travels abroad and denied visa stamp at post due to failure to amend

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L-1 Overview, Requirements, and Current Trends

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L-1 Intracompany Transferees • L-1 category allows sponsor to transfer employees from overseas to related company in the U.S.

• Types of L-1s: • L-1A: executives and managers • L-1B: specialized knowledge workers

• There must be a qualifying relationship between the U.S. sponsor and overseas company

• Parent, subsidiary, affiliate, branch or joint venture • FN must have prior employment abroad:

• 1 year of overseas employment with qualifying company in 3 years preceding transfer to U.S.

• Duration of stay: • L-1A = 7 years maximum, L-1B = 5 years maximum

• Spouses can apply for work authorization once they arrive

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L-1A Executives and Managers • High level of scrutiny with regard to executive/managerial responsibility

L-1A Functional Manager: manages an essential function within the organization, department, or subdivision. The function managed cannot be performed by the employee. • Functional manager cases face high rates of denial

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L-1B Specialized Knowledge • Specialized knowledge of the company product and its application in international markets or an advanced level of knowledge of processes and procedures of the company

• Advanced –”Highly developed or complex; at a higher level than others” or “beyond the elementary or introductory”

• Applicant must perform a key or important function, with respect to _________

• Specialized knowledge of company tools, software, processes and/or methodologies coupled with specific project and/or domain expertise

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L-1 Outlook

•Waiting for “specialized knowledge” guidance from USCIS

•Each foreign national must be able to clearly and concisely articulate his or her specialized knowledge

•Increased consular interview preparation strongly recommended

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FDNS Site Visits for L-1 and H-1B Employees: How to Prepare

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FDNS Site Visits preparation

•USCIS conducts site inspections on randomly selected petitions

•USCIS has recently announced expansion of the program to include L-1A and L-1B petitions

•Site Inspections conducted without notice •Inspectors do not make immigration decisions, but report findings to USCIS

•Findings can result in USCIS’ issuance of a Notice of Intent to Revoke

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FDNS L-1 Site Visits •Areas of inquiry for FDNS:

- Whether the worksite appears to be that of the petitioner - Whether the officer made contact with the petition signatory

or an appropriate HR contact - Whether signatory/HR contact had knowledge of the petition - Whether beneficiary is working for the petitioner - Whether beneficiary was available for interview - Whether beneficiary is knowledgeable, cooperative and able

to provide information about the workplace - Whether beneficiary is being paid the salary stated in the

petition - Whether beneficiary is performing the duties outlined in the

petition

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O-1 Persons of Extraordinary Ability • Open to foreign nationals of extraordinary ability in the sciences,

education, arts, business and athletics • Three different standards of eligibility:

- Sciences, education, business and athletics: • FN must be one of a small percentage who have risen to the top

of the field. • Must demonstrate sustained national or international acclaim and

recognition for achievements in his/her field - Motion picture or TV industry

• FN must be recognized as outstanding, notable or leading in the motion picture or TV field

- Arts: • Covers fields of creative endeavor including fine, visual and

performing arts • FN must be prominent, leading or well-known in the field

• 3-year initial period of stay; renewable in 1-yr increments • No maximum limit, but numerous extensions may raise flags with USCIS • $325.00 Form I-129 filing fee applies • Premium Processing available

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TN Processing For Canadian and Mexican Professionals

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TN Category

•Canadian and Mexican professionals performing certain occupations - Must be nationals of either Canada or Mexico - Coming to U.S. to work in profession listed on NAFTA schedule - Generally require a Bachelor’s degree in related field, but

some exceptions - Canadians apply at border (non-Canadian dependents - must obtain visa at U.S. Consulate) - Mexicans apply at Consulate - Three year permissible period of stay - Nonimmigrant intent required - Inconsistency among POEs and Pre-flight Inspection stations

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Employment-Based Green Card Processing, in General

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Basis of Permanent Residence

• Family-based - FN is sponsored by a qualifying family member who is a U.S. citizen

or permanent resident - Limited to 480,000 immigrant visas each year

• Employment-based - FN is sponsored by an employer on the basis of a job offer - FN may self-sponsor in some cases - Limited to approximately 140,000 per year

• Diversity visa lottery - FN enters online State Department lottery during designated

timeframe - If chosen, FN can submit permanent residence application the

following fiscal year - Limited to 50,000 each year

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3 Steps of Employment-Based Permanent Residence

•Two- or three-step process • (1) Labor certification (where required)

- filed with Dept. of Labor by employer on behalf of foreign national

- processed under PERM system

•(2) Immigrant preference petition - Form I-140 immigrant worker petition filed by employer or,

in some cases, by foreign national - processed by USCIS

•(3) Adjustment of status or consular processing - Adjustment or immigrant visa application filed by the foreign

national & family members

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PERM Processing for Professional Employees

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PERM Labor Certification

•Application is filed with the US Department of Labor (DOL)

•Open, Permanent position available at the Employer •Test of US Labor Market

- No qualified, willing, and able US Workers applied: U.S. Citizens Permanent Residents (Green Card holders) Special immigrants

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Required Steps (PERM cont.) 1. Determine minimum education, experience and

skills required for position or prospective position with your manager

2. Confirm that you possess these requirements 3. File Prevailing Wage Determination with DOL (6-8

weeks) 4. Conduct Recruitment, 60-day period

- 30 days of active recruitment - 30 day quiet period

5. Resume review and phone screens as necessary by manager (no employee involvement allowed)

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‘EB-1’ Multinational Manager Green Cards

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Managers and Executives

•Similar to L-1A except job abroad must have been in executive or managerial position (not specialized knowledge)

•Employer abroad and in U.S. “commonly owned and controlled”

•Managers/executives employed with the company abroad for one continuous year out of past three or, if already in U.S., one year out of three preceding entry as nonimmigrant

•Will fill management or executive position in U.S.

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Organization Chart for Multinational Manager (EB1-3)

CEO

VP

Manager Manager Manager Manager

EE2

EE4

EE3

EE1

VP

EE3

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Immigration Reform?

•The Comprehensive Immigration Reform Bill passed in 2013 by the US Senate never passed the house to become law.

•Reforms ideas for the US business community that might pass both houses of Congress: - An increase in the annual quota of $65,000? - A visa category for entrepreneurs? - Path to Permanent Residency for Recent University

Graduates?

•Reforms for undocumented individuals may be harder to pass but the reforms mentioned above could help the US economy

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THANK YOU!

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