best practices for managing compliance for · society of corporate compliance and ethics 10th...

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Society of Corporate Compliance and Ethics10th Annual Compliance & Ethics Institute

Las Vegas - September 12, 2011

“The House Always Wins: Best Practices for Managing Compliance for a Global Workforce”

Maggie Murphy

Board Certified Immigration AttorneyTexas Board of Legal Specialization

Greenberg Traurig, LLP - Austin, [email protected]

Rachel Ehlers

In-House Compliance AttorneyFormer DOS Consular Officer

National Oilwell Varco - Houston, [email protected]

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Best Practices for Managing Compliance for a Global Workforce

� I-9 and E-Verify Challenges for Employers with Foreign Workers

� Employment-based visa categories for bringing foreign national workers to the U.S.

� Export Control Regulations

� Going Global - Visa and Work Permit Challenges for sending workers to foreign countries (Brazil, Canada, India, UK)

� Role of various groups within a corporation in global workforce compliance

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I-9 & E-Verify Challenges for Employers with Foreign Workers

� Employers must have a valid, completed Federal Form I-9 completed for all employees hired after November 8, 1986. The Form I-9 (Appendix A) requires that the employer certify that an employee representative has checked the employee’s original documents and can verify the identity and the U.S. work authorization of the employee.

� Starting in 2006, the U.S. Immigration & Customs Enforcement (ICE) has started conducting employer raids and audits of U.S. worksites at skyrocketing rates, resulting in civil fines, criminal indictments, and employee deportations.

� Civil fines per form can be as high as $1,100 per form. Internal audits rates show average error rates as high as 81%.

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� Several states have now mandated that employers use E-Verify to submit employee information into a government database to help “verify” a worker’s identity. E-Verify compares data entered against DHS and SSA databases.

� U.S. House and Senate are currently reviewing legislation that will make E-Verify mandatory for all employers within the next 2 years.

� Error rates are very high, and many U.S. citizens are initially rejected because of name-change issues or data entry problems.

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� I-9 completion and E-Verify confirmation can be difficult for employers with foreign national workers:

□ I-9 document requirements don’t provide for all types of legal work visa status

□ DHS systems are not always updated until 30-60 days after legal visa entry, which may cause issues with E-Verify confirmation

□ I-9 rules about how to document a foreign worker are confusing, often resulting in mistakes (which can result in hefty fines)

□ E-Verify does not always recognize legal work visa status

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Employment-Based Visa Categories for Bringing Foreign Workers to the U.S.

� Common Visa Options for Employment in the U.S.

□ H-1B Temporary Worker

□ H-1B Chile, Singapore Set-aside

□ E-3 Temporary Worker (Australians)

□ L-1 Intracompany Transferee

□ H-3 Trainee

□ J-1 Exchange Visitor

□ TN Trade NAFTA Worker

□ O-1 Extraordinary Ability Alien

□ E-1/E-2 Treaty Trader/Investor

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Employment-Based Visa Categories for Bringing Foreign Workers to the U.S.

� Immigrant Petition

□ Depending on the circumstances, it may be viable to go straight from OPT to permanent residence

□ In some cases, concurrent filing of I-140 & I-485 is possible, which allows the applicant to also apply for an Employment Authorization Card as an “intending immigrant”

□ Family-based immigration is also an option for Immediate Relatives of U.S. Citizens

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Export Control Issues as Applied to Foreign Employees

� The Deemed Export Rule

□ The disclosure of technology, technical data and some software to a foreign national is deemed to be an export to the home country or countries of the foreign national

� Applies to disclosures made in the United States

� Applies to disclosures made to employees

□ If an export license would be required to send the technology to the country, an export license is needed to release the technology to the employee

□ Even though new Immigration Requirements for export controls review and analysis apply to only certain work visa categories (H-1B, L-1 and O-1), deemed export analysis should be done for all foreign national workers who may have access to “controlled technology”

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� Technology and Technical Data

□ Technology and technical data are broadly defined

□ Information necessary for the development, production, or use of a product

□ Includes information related to maintenance, testing or repair of a product

□ Includes visual inspection of controlled items

□ Applies to information about the company’s products

□ Applies to information about the products the company uses internally

□ Technology and technical data may be controlled even if they are not “cutting edge”


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� Assessing Current Compliance

□ Requires the combined efforts of legal, human resources, engineering/product development and export compliance

� How is the technology classified for export purposes?

� Who is working with that technology?

� Who needs access to the technology?

� Who has access to the technology?

� Are any of the people that need or have access foreign nationals? From what countries?

� Is a license required for export to that country?

� Are there any exceptions?

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Going Global: Sending Employees to Foreign -What to Compile to get them Working

Most countries do not have immigration regulations as complicated as those of the U.S. However, sending an employee on a foreign assignment certainly is not as simple as entering into international project contract

and sending employees to carry out terms of the project.

� What is the scope of the project?

□ If required, who would be the sponsoring employer? The U.S. company, the foreign branch company, or the client?

□ Would the client be willing to sponsor one of their own?

□ Will there be any issues related to the number of foreign workers versus local workers?

□ Are there any visa restrictions related to the nationalities of the employees being considered?

□ TIMING, TIMING, TIMING -- How long will it take to get the necessary visas for our employees - budget in time for document gathering, as it is often required that employees provide not only their own personal documents (birth certificates, marriage licenses, diplomas, etc.), but also official records that take time to obtain, such as police clearances and other law enforcement document?

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Going Global: Sending Employees to Brazil

� Long visa processing and issuing times (2-3 months)

� Certain in-country payroll requirements

� Very protective of the local job market

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� Watch out for criminal records

� Similar to U.S. laws for business visitors and workers

� Processing at the border is often quick and efficient for U.S. citizens

� Consular processing for non-U.S. citizen employees relatively efficient and well managed

Going Global: Sending Employees to Canada

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� Recent changes to India visa processing and work permit issuance from within

� Certain nationalities (Pakistani nationals, for example) are subject to additional scrutiny

� Visa issues at U.S. consulates if wanting to bring employees back to the U.S.

Going Global: Sending Employees to India

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Going Global: Sending Employees to the United Kingdom

� No Tier 2 Certificate Issuance for those going to work in UK

� Cap on Teir 1 Certificates

� Very strict on business visitors

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Compliance in Global Corporations

� Which department is responsible for ensuring global workforce compliance?

□ Human Resource Group

□ Legal Group

□ Compliance Group

□ Engineering Group

□ Business Group

� Answer: All of the above. Each plays a key role in ensuring compliance with U.S. and foreign laws.

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Dividing and Conquering

� Role of various groups in Deemed Export issues

□ Who has ultimate authority in determining who to hire and what exposure employees will have, and what happens if there are clashes?

□ Who is responsible for determining what technology an employee may be exposed to?

□ Is there someone responsible for continued monitoring of the exposure to certain technologies?

□ Who is responsible for certifying that a foreign employee is not exposed to licensed technology?

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Dividing and Conquering (cont.)

� Role of various groups in License Determinations

□ Who is responsible for export license and technology determinations?

□ Who is responsible for applying for export licenses?

□ Who is responsible for determining if there are any sanctioned country concerns when employing foreign nationals?

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Dividing and Conquering (cont.)

� Role of various groups in global movement

□ Who is responsible for movement of employees globally?

□ Who is responsible for ensuring employees have the proper visa or work authorization?

□ Who is responsible for documenting immigration issues, including facilitating payments made to immigration officials?

□ Who is responsible for payroll issues and ensuring all payroll taxes are paid to local foreign authorities?

□ Who is responsible for these issues when employee works under client or third party?

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Hypotheticals

HYPO 1 – Employer has a UK national manager working at its office in Dubai, UAE. Employer wants to bring manager to the U.S. to oversee a project for approximately 8 months. He is needed to help with the design and engineering of specialized drilling equipment for deep-water offshore oil drilling. The materials used include chemical sealants that may be considered controlled technology. The project will be implemented in Brazil after its design and initial implementation in the U.S. Manager is on UAE payroll and has a work permit in the UAE. He has a recent conviction in the UK for DUI. Discuss immigration-related compliance issues.

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Hypotheticals

HYPO 2: A Libyan citizen applies for a position in the Cairo, Egypt office of a U.S. company. What issues must be considered when deciding whether to hire him?

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Q&A

Maggie Murphy

Board Certified Immigration AttorneyTexas Board of Legal SpecializationGreenberg Traurig, LLP - Austin, Texas

[email protected]

Rachel Ehlers

In-House Compliance AttorneyFormer DOS Consular Officer

National Oilwell Varco - Houston, [email protected]

Society of Corporate Compliance and Ethics10th Annual Compliance & Ethics Institute

Las Vegas - September 12, 2011

“The House Always Wins: Best Practices for Managing Compliance for a Global Workforce”

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Appendix A

Form I-9

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Appendix B

List of Acceptable Documents