Managing Your Global Workforce: A Positive Approach

Debra J.C. Dowd, Esq. LeClairRyan, A Professional Corporation

©2011 LeClairRyan, A Professional Corporation

The New Colossus -Emma Lazarus

Not like the brazen giant of Greek fame, With conquering limbs astride from land to land; Here at our sea-washed, sunset gates shall stand

A mighty woman with a torch, whose flame Is the imprisoned lightning, and her name Mother of Exiles. From her beacon-hand

Glows world-wide welcome; her mild eyes command The air-bridged harbor that twin cities frame.

“Keep, ancient lands, your storied pomp!” cries she

With silent lips. “Give me your tired, your poor, Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me.

I lift my lamp beside the golden door!”

Topics We Will Cover

  Policies and Practices   Hiring and Planning   Employment Agreements   Immigration Sponsorship   Employer Compliance

POLICIES AND PRACTICES

Policies and Practices

  Position Descriptions!   Immigration Sponsorship for Non-Immigrant Visas

•  New •  Extensions •  Who makes the sponsorship decision •  Who has signatory authority

  Immigration Sponsorship for Immigrant Visas •  Timing •  Employment Based Category Debate •  Who makes the sponsorship decision •  Who has signatory authority

  Coverage of costs and fees

Policies and Practices Continued…

  Family members •  Visa Applications •  Payment of costs and fees

  Employee Responsibilities   Immigration Filings by In-House Team   Immigration Filings by Outside Counsel

HIRING AND PLANNING

Hiring and Planning

  Interview Process •  Balancing the “need to know” for business purposes

v. the “appearance” of discriminatory behavior   Initiating and Planning the Immigration Process   Managing the Start Date

EMPLOYMENT AGREEMENTS

Employment Agreements

  Present and future employment contingent upon employment eligibility in the U.S.

  Immigration Sponsorship in accordance with Company’s Sponsorship Policies

  Policies subject to revocation and/or change from time to time

  Immigration Sponsorship does not alter the “at will” employment relationship or “term of employment.”

IMMIGRATION SPONSORSHIP

Government Regulation

  Department of Homeland Security US Citizenship & Immigration Services US Immigration & Customs Enforcement Directorate of Border & Transportation Security

  Department of Labor State Workforce Agencies

  Department of State National Visa Center Consular Posts

  Department of Justice Executive Office of Immigration Review

Immigrants v. Non-Immigrants

  Green Card   Permanent   Family Based Petitions   Employment Based

Petitions   No limitation on

activities, length of stay

  Alphabet Soup   Temporary   Tourism, Education &

Employment Based   Limitations on activities,

length of stay

Goals of US Immigration System

Encourage Investment

Family Unity

Workforce Shortages

“Best” and “Brightest”

Arts, Sciences, Business

and Athletics

NONIMMIGRANT (TEMPORARY)

VISAS

Non-Immigrant Visas – Students / Limited Employment

F-1 Visa Academic Student

On Campus CPT Curriculum Practical Training

OPT Optional Practical Training

Non-Immigrant Visas – Employment-Based

Employer- Specific Visas

Commonly Used

H-1B Visa O-1 Visa TN Visa J-1 Visa E-1/2 Visa L-1A/B Visa

H-1B Visa

  Employment based non-immigrant visa   Employer specific   Reserved for “Specialty Occupations” =

occupations requiring the equivalent of a four- year degree in a field related to the occupation

  No advertising/recruitment efforts required

H-1B Cap

  There are a limited number of H-1B visas issued each fiscal year (October 1st through September 30th)

  Cap-Subject Employer v. Cap-Exempt Employer   Cap-Exempt Employers include:

•  Institutions of Higher Education •  Nonprofit Entity related to or affiliated with an Institution of

Higher Education •  Nonprofit research organization or a governmental research

organization

H-1B Extensions

  Begin extension process 6 to 4 months in advance of expiration

  H-1B maximum is 6 years   Track travel outside U.S.   H-1B extensions beyond 6 years •  PERM filed prior to 5th anniversary •  I-140 Petition approved prior to 6th anniversary

H-1B Government Costs Government Filing Fees

Base Fee $325 Fraud Fee $500[1] Supplemental Fee $1,500[2] Border Security Fee $2,000[3] Premium Processing Fee (Optional) $1225

  [1] The Fraud Fee is imposed on the Employer’s first H-1B filing for the

named Beneficiary. If this is an extension or an amended filing by the Employer for the same Beneficiary, the Fraud Fee will not be charged by the CIS.

  [2] Counsel must evaluate whether the Employer is exempt from the Supplement Fee. If the Employer has 25 or fewer employees the Supplement Fee is $750.

  [3] The Border Security Fee is required for a new H-1B Petition filed by a Employer meeting the following two criteria: (i) more than 50 employees AND (ii) 50% or more of those employees are in H or L non-immigrant visa status. The Border Security Fee is imposed on the Employer’s initial H-1B filing for the named Beneficiary. If this is an extension or an amended filing by the Employer for the same Beneficiary, the Border Security Fee will not be charged by the CIS.

TN Visa

  NAFTA Treaty   Canadian Citizens   Mexican Citizens   Limited List of Occupations

O-1 “Extraordinary” Ability Aliens

  Available to aliens who have “extraordinary” or “outstanding” ability in the fields of science, education, business, athletics, the arts and entertainment

  Consultation from either a labor union or a leading organization in the field required

J-1 Exchange Visitors   Promotes interchange of persons with knowledge and

skills in fields of education, arts and sciences   Employers cannot

sponsor directly but must go through an approved program sponsor or become

a program sponsor

L-1A/B Intracompany Transferees

  L-1A = Manager/Executive Positions   L-1B = Specialized Knowledge Positions   Requires 1 year employment abroad prior

to transfer

IMMIGRANT (PERMANENT) EMPLOYMENT-BASED VISAS

The Roads to Green Card

1.  Family-Based Petition 2.  Employment-Based Petition 3.  Self-Petition 4.  Asylum/Refugee 5.  Special Legislation

Family-Based Preferences

  Immediate Relatives Spouses, minor children, and parents of USC

  First Preference Unmarried sons and daughters of USC

  Second Preference Spouses, unmarried sons/daughters of LPR

  Third Preference Married sons and daughters of USC

  Fourth Preference Brothers and sisters of USC

Family-Based Petition

PETITION   Qualifying Relationships:

USC Mother, Father, Spouse, Adult Child, Sibling LPR Mother, Father, Spouse, Unmarried Minor and Adult Children

  File with the CIS

  Processing Time: 6 months to 1 year

  CIS Fees, Legal Fees, Photos

ADJUSTMENT OF STATUS   File with the CIS

  Processing Time:

6 months to 2 years (depending upon jurisdiction)

  CIS Fees, Legal Fees, Photos, Medical Exams

  Work Authorization

  Travel Permission

Visa Bulletin – May 2012

Fam-ily

All Charge- ability Areas Except Those Listed

CHINA-mainland born

INDIA MEXICO PHILIPPINES

F1 01MAY05 01MAY05 01MAY05 15MAY93 01JUL97

F2A 15NOV09 15NAV09 15NOV09 15OCT09 15NOV09

F2B 22FEB04 22FEB04 22FEB04 01DEC92 08DEC01

F3 08MAR02 08MAR02 08MAR02 15JAN93 22JUL92

F4 01DEC00 22NOV00 01DEC00 01JUN96 22JAN89

Employment-Based Preferences   EB-1 Priority Workers

Extraordinary Ability Outstanding Professors and Researchers Multinational Executive and Managers

  EB-2 Advanced Degree or Exceptional Ability/NIW

Professionals holding Advanced Degrees Exceptional Ability in the sciences, arts, business, or athletics

  EB-3 Professionals, Skilled Workers & Other Workers

  EB-4 Special Immigrants

  EB-5 Employment Creation (Investment)

Employment-Based IV Process

Labor Certification Petition Adjustment of Status/Consular

Test US Market to ensure that there are no qualified US Workers ready, willing, and able to accept the job position. We work with the Employer and target Employee to identify in detail the target job duties and requirements and the target Employee’s education, work experience, skills and abilities. We then prepare an appropriate Application, advertise the job, counsel the Employer through the recruitment efforts, and finalize the process. Once final, we submit the case to the U.S. Department of Labor.

A Petition Package is filed with the USCIS. The USCIS will review the Petition Package to ensure: The Employer has the financial ability to pay the offered wage at the time the case commenced (filing of labor certification). The Employee has the skills, qualifications, and experience necessary to perform the job.

An Application Package is filed with the USCIS. At this stage, the Applicant may also apply for employment authorization and travel permission. The principal Applicant’s spouse and children may also seek legal p e r m a n e n t r e s i d e n t s t a t u s , employment authorization and travel permission. Note: travel permission is not recommended in all cases.

Visa Bulletin – May 2012

Employment-Based

All Chargeability Areas Except Those Listed

CHINA- mainland born INDIA MEXICO PHILIP-

PINES

1st C C C C C

2nd C 15AUG07 15AUG07 C C

3rd 01MAY06 01APR05 08SEP02 01MAY06 01MAY06

Other Workers 01MAY06 22APR03 08SEP02 01MAY06 01MAY06

4th C C C C C

Certain Religious Workers C C C C C

5th C C C C C

Targeted Employment Areas/ Regional Centers

C C C C C

Alien Labor Certification

  The purpose of the alien employment certification process is to protect the U.S. workforce

  Will be issued only if the DOL determines there is an insufficient supply of “available, willing and qualified” U.S. Workers for the particular job involved

Required Recruitment For PERM For all job positions other than “Special Handling”   Internal posting for ten consecutive business days   Place job order with state

employment agency for 30 days   Use of any and all in-house

media (intranet, internal postings, etc.)

  Two print advertisements (Sundays) in the newspaper of general circulation for area of employment.

Additional Required Recruitment   If the job is for a “professional” job (one which requires at

least a bachelor’s degree or higher), must undertake three additional recruitment steps from a list of ten approved by the DOL: •  Job fairs Employee referral program •  Employer’s Website Campus placement office •  Job search website Local or ethnic newspapers •  On-campus recruiting Private employment firms •  Trade/professional

organization Radio/television ads

Special Handling Rules for College and University “Teachers”

  Teachers: College and university teachers have the benefit of “special handling” rules. Under the special handling rules, teachers enjoy a more lenient selection standard than all other occupations (“best qualified” versus “no qualified U.S. workers”).

  The case must be filed within 18 months from the date the individual was “selected”. Generally you may consider the date of the offer letter as the “selection” date. Schools should consider a notice provision on the 18 month rule.

  The process does require one national print advertisement.

Required Recruitment For PERM Special Handling Cases Cases involving post-secondary teachers are considered “Special Handling” cases. The recruitment required for Special Handling cases is as follows:

  Internal posting for ten consecutive business days   A single print ad in a national journal or publication

relevant to the field

Can I Avoid Labor Certification?

Only a small number of employment-based immigration cases can avoid the labor certification requirement:

  Schedule A Cases   Extraordinary Ability Petition   Outstanding Researcher/Professor Petition   National Interest Waiver Petition

Extraordinary Ability

  Self-Petition   No Job Offer/Labor Certification Required   “Extraordinary Ability” means a level of

expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor

Extraordinary Ability Proof

  Sustained national or international acclaim and evidence that his or her achievements have been recognized in the field of expertise.

  Major internationally recognized award OR

At least three “other” items

Extraordinary Ability “Other” Proof   Lesser nationally or internationally recognized prizes/awards   Membership in associations which require outstanding

achievements   Published material about the applicant   Applicant’s participation as the “judge” of others   Original scientific, scholarly, etc., contributions of major

significance   Authorship of scholarly articles   Display of work   Performed in leading or critical roles in organizations with

distinguished reputation   High salary in relation to others in the field   Commercial successes   Other comparable evidence

Outstanding Researcher/Professor

  Employer Sponsored   Job Offer Required/No Labor Certification   Permanent, in reference to a research position, means

either: (1) tenured; (2) tenure-track; or (3) for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment, unless there is good cause for termination

Outstanding Researcher

  Requires evidence that the R/P is recognized internationally as outstanding in the academic field

  At least three years’ experience in research   Evidence shall consist of at least two of the following:

•  Receipt of major prizes or awards •  Membership in associations which require outstanding

achievements •  Published materials about the researcher •  Researcher sits as the judge of others •  Original scientific or scholarly research contributions to the

academic field •  Authorship of scholarly books or articles

Advanced Degree/Exceptional Ability   Generally requires job offer and labor

certification   Becomes a Self-Petition if filed as a National

Interest Waiver case   Master’s Degree = Advanced Degree   Default to Advanced Degree (v. Exceptional

Ability)   Be very careful with 3 year Bachelor Degrees!

National Interest Waiver

  Does the applicant seek employment in an area of “substantial intrinsic merit”?

  Will the proposed benefit be national in scope?   Will the “significant” benefit derived from the

individual’s participation in the field of endeavor considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process?

EMPLOYER COMPLIANCE

Employer Compliance

  I-9 Compliance   E-Verify •  Stem Occupations

  Audits •  Self Audits •  Audits by Counsel •  Government Audits

Same Issue, Different Century: What’s Not New in the Immigration Debate

U.S. employers have always been at the heart of the perennial debate about who to let in, who to keep out, and whether we really are a “nation of immigrants.”

Same Issues, Different Century

The Immigrant

A Century Ago…

Same Issues, Different Century

Same Issues, Different Century

 The U.S. Employer has always been at the heart of this debate.

 Chinese labor (1850s) used in railroads, garment industries, agriculture and mines.

 Italian labor (1900s) used to dig out NYC subways

 Now at the heart of the (illegal) immigration debate presently waging between U.S. political ideologies.

Same Issues, Different Century

US Employers: The New Border Patrol?

“Employers are being held to a much higher standard than ever before, with deficiencies in DHS paperwork requirements exposing those employers to far more than administrative fines and penalties…[I]t is imperative that employers scrupulously employ practices and policies for proper preparation and maintenance of I-9 records, as well as strictly adhere to the anti-discrimination and anti-document abuse protections.” Cora D. Tekach, Securing Our Borders from Within: Forcing Employers to be the Virtual Fence, 07-12 Immigration Briefing 1 (Dec. 2007)

U.S. Employers: The Real Border Patrol

The “Culture of Compliance” “Since President Obama took office, the Department of Homeland Security has audited more than 2,785 employers suspected of hiring illegal laborers, compared to 500 audits in all of 2008, according to Matthew Chandler, a spokesman for the U.S. Immigration and Customs Agency, known as ICE. The Obama administration has debarred 105 companies and 81 individuals and issued more than $6.4 million in fines, he said. “We are going after the root cause of illegal immigration and getting rid of the culture of compliance among employers,” Chandler told Fox News. Source: “Administration's ‘Silent Raids’ Lead to Firings Not Deportations,” FoxNews.com. http://www.foxnews.com/politics /2010/07/10/administrations-silent-raids-lead-firings-deportations/# (accessed Sept. 28, 2010)

Employer Compliance: The I-9 Process

Verifying Employment Eligibility

  It is unlawful for an Employer to knowingly hire or continue to employ an individual who is not eligible to work in the United States.

  The I-9 Employment Eligibility Verification Process is required by all employers, regardless of size, industry or location.

Getting Familiar with the I-9 Process

 Employment Eligibility Verification Form  How to Obtain the I-9 Form  How to Administer the I-9 Process  How and When to Update the I-9 Form  How and When to Retain and Destroy the I-9

Form  Conducting an I-9 Audit

The I-9 Form

  The purpose of the Form is to verify identity and employment eligibility

  It is required by law for anyone hired after November 6, 1986 in accordance with the Immigration Reform and Control Act of 1986 (IRCA), including citizens, owners, etc.

  The current version of the Form is dated August 7, 2009.

I-9 Handbook for Employers

 The USCIS publishes a Handbook for Employers describing the I-9 Requirements. The handbook can be found at http://www.uscis.gov/files/form/m-274.pdf  Updates have historically been published in periodic Employer Information Bulletins.

I-9 Compliance   Every employer and every

employee, including U.S. citizens, business owners, etc. must complete the I-9 Form.

  The Form consists of Sections 1 and 2

  There is an associated list of documents containing Schedules A, B, and C

  The printed Schedules are not exhaustive.

How to Complete the I-9 Form Employee’s Section

The Employee should complete Section 1 on or before the first day of work, including signature and date.

How to Complete the I-9 Form Employer’s Section The Employer should complete Section 2, including signature and date. The Employee must present and the Employer must review original documents: one item from List A OR one item from each of List B AND List C.

List A Documents

  List A Documents prove both identity and employment eligibility

  Review the list carefully

  Accept only unexpired documents

List A Documents: U.S. Passport

List A Documents: Permanent Resident Card

  Shows the seal of Department of Homeland Security, detailed hologram on front, photograph, name, signature, date of birth, alien registration number, expiration date, card number

List A Documents: Employment Authorization Card

  Issued by USCIS to foreign nationals granted temporary employment authorization in the U.S.

  Expiration date is on the front of the card.

List B and C Documents

  List B Documents prove identity

  List C Documents prove employment eligibility

  Review the lists carefully

  You cannot “trade” a list B document for a list C document (and vice versa)

List B Documents

  Includes: Driver’s license, State ID card, school ID card with photograph, Voter’s registration card, U.S. Military card or draft record

  If employee is under 18 and cannot present the above, a school record, report card, or doctor record is allowed.

List C Documents   Includes: U.S. Social Security card, Birth

Certificate, Certification of Birth Abroad issued by Dep’t of State, U.S. Citizen ID card, Native American tribal document

Certification of Birth issued by Dep’t of State U.S. Social Security Card

The I-9 Process: Avoid Discrimination Claims

  Do NOT request or require specific documents.   It is best to present to the new employee with the “Lists” and tell him/her that you need one item from List A OR one item from both List B and List C.

  Employers cannot refuse to accept documents that reasonably appear to be genuine.

To Copy or Not to Copy

  Employers have the choice of whether to copy the Employee’s support documents.

  Employers should have a determined policy on this issue and follow it strictly.

  If an employer copies for one – copy for all.   It is important to maintain consistency.

The I-9 Process: Re-verification

  Section 3 of the I-9 Form   Whenever a document used for employment

verification has an expiration date, the I-9 Form must be “re-verified” at the time of the expiration.

  Employers should create a reliable “tickler” system for re-verification.

The I-9 Process: Retaining the I-9 Form

  I-9 Forms can be stored as hardcopy, microfiche or microfilm, or electronically.

  The forms should be retained for the longer of: •  3 years after the commencement of employment; or •  1 year after the last day of employment

All I-9 Software Products are Not Created Equal!

  If your company elects to utilize a software program to produce, re-verify and store your I-9s, choose carefully.

  The regulations require that I-9 Software Programs meet certain requirements.

I-9 Software Requirements

  Reasonable controls to ensure the integrity, accuracy and reliability of the electronic generation or storage system

  Reasonable controls designed to prevent and detect the unauthorized or accidental creations of, addition to, alteration of, deletion of, or deterioration of the forms

  An inspection and quality assurance program   A retrieval system, including indexing systems   The ability to reproduce legible hardcopies

Employer Compliance: E-Verify

E-Verify

  The E-Verify program is a free, automated working status verification system for federal, state, and local government employers as well as participating private employers.

  The program is a partnership between the Dep’t of Homeland Security and the Social Security Administration.

E-Verify

  Employers submit I-9 date online and receive an immediate initial response on employment eligibility.

  State laws mandate the E-Verify program for all employers in AZ, MS and SC.

  29 other states have considered or passed laws requiring the use of E-Verify. Some apply to all employers, some only to government contractors, and some only to government entities.

E-Verify – Where is it Required?

Source: http://www.numbersusa.com/content/learn/illegal-immigration/map-states-mandatory-e-

verify-laws.html (updated October 20, 2011)

E-Verify Statistics

These statistics are based on E-Verify cases in Fiscal Year 2010 (October 2009 through September 2010). Statistics may not add to 100 percent (or to the subtotals listed below) due to rounding.

E-Verify

  Why do employees receive final non-confirmation responses? Either: •  (a) They are not authorized to work in the United States; •  (b) They didn’t know they could challenge an initial

mismatch; or •  (c) They did not follow the necessary procedures to prove

work authorization after receiving an initial mismatch.

General Guidelines for E-Verify

  Does not replace the I-9 process   Cannot be used to pre-screen potential hires   Can only be used to verify eligibility of newly hired

employees unless enrolled as federal contractor   Queries must be conducted within 3 days after hire   Does not protect against worksite enforcement   You can terminate your E-Verify participation only

after giving 30 days notice of termination

Other E-Verify Items of Interest

  Self-Verification   STEM Occupations

Employer Compliance: Audits

Conducting An I-9 Audit

  Obtain payroll register and confirm that every employee hired after November 6, 1986 has an I-9 on file.

  If not, complete the I-9 now using the current date

  Review I-9s to be sure that they are complete   Making corrections to existing I-9s. •  Use different color ink. Initial and date changes •  Never backdate

Correcting I-9s (continued)

•  Never white out original information. Strike through and correct

•  Changes to Section 1 of form must be made by employee

•  If documentation is missing, ask employee to provide and make corrections to Section 2

Debra J.C. Dowd 804.343.4069 Direct

804.332.1252 Mobile debra.dowd@leclairryan.com

debradowd on Twitter Debra JC Dowd on Facebook

www.immigrationlawchronicles.com www.leclairryan.com

Disclaimer

  This presentation provides general information and is not legal advice and should not be used or taken as legal advice for specific situations. You should consult legal counsel before taking any action or making any decisions concerning the matters in this presentation.

  This communication does not create an attorney-client relationship between LeClairRyan, A Professional Corporation and the recipient.

©2011 LeClairRyan, A Professional Corporation

Everywhere immigrants have enriched and strengthened the fabric of American life.

-John F. Kennedy