Immigration Strategies for Difficult Times

Leslie K. L. Thiele, Esq.March 4, 2009

OverviewHard personnel decisions get harder when the individuals affected are foreigners sponsored for work visas.

• Obtaining needed workers continues to be difficult - H-1B cap

- New onerous H-2A regulations - Increased restrictions on H-2B visas; continued cap- New stimulus legislation affects H-1B hiring

• Modification of employment terms for H-1B workers restricted by regulations

• Terminating employees: issues include notice, unemployment rules, special requirements for H-1B workers

• Maintaining ‘green card’ applications for terminated employees possible in limited cases

H-1B Cap: 2010 Edition H-1B cap remains in place at 65,000 “normal” H-1Bs and 20,000 reserved for graduates from US graduate schools.

• No new announcements of ground-breaking relief such as the F-1 OPT extensions for STEM degrees in 2008

• ‘Cap gap’ protections announced in 2008 still exist for cases selected in the lottery

• No announcements of changes in the lottery process- Lottery used if USCIS receives more than cap on any

one of first five business days of filing season- Assume April 1 filing date; can’t count on extension

• Unclear predictions of demand for H-1B workers

Impact of ARRA 2009 Stimulus legislation imposes special requirements on banks and other employers who hire foreign nationals

• American Recovery and Reinvestment Act of 2009, effective February  17, 2009: applies to banks and other companies who accept funding under TARP (Troubled Asset Relief Program) or credit directly from the Federal Reserve System

• Required to make "H-1B Dependent Employer" attestations on the Labor Condition Applications (LCAs) filed for petitions for new H-1B employees.

• Weekly-updated list of employer recipients of TARP funding (but not Federal Reserve credit) on Treasury Department

website: http://www.treas.gov/initiatives/eesa/transactions.shtml

H-1B Dependency: What?Employers defined as being “H-1B dependent” are required to make the additional attestations on the LCA under 20 CFR §§ 655.738 and 655.739, regarding non-displacement and recruitment of U.S. workers.

• An employer is normally “H-1B dependent” under the DOL regulations if more than a certain percentage of their workers is H-1B workers

- 25 or fewer FTE employees: 8 or more H-B workers- 26-50 FTE employees: 13 or more H-1B workers- Above 51 FTE employees: 15% or more H-1B workers

• Under the new stimulus rules, this definition is now applied to any employer receiving the defined funding from TARP or the Federal Reserve

H-1B Dependency AttestationsThe attestations which must be made by a sponsoring H-1B dependent employer relating to displacement are:

A. Displacement: The employer will not displace any similarly employed U.S. worker within the period beginning 90 days before and

ending 90 days after the date of filing a petition for an H-1B nonimmigrant supported by the application.

B. Secondary Displacement: The employer will not place any H-1B nonimmigrant employed pursuant to this application with any other employer or at another employer's worksite UNLESS the employer applicant first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within the period beginning 90 days before and ending 90 days after the placement, and the employer applicant has no contrary knowledge.

H-1B Dependency AttestationsThe attestation which must be made by a sponsoring H-1B dependent employer regarding recruitment is:

C. Recruitment and Hiring: Prior to filing any petition for an H-1B nonimmigrant pursuant to this application, the employer took or will take good faith steps meeting industry-wide standards to recruit U.S. workers for the job for which the nonimmigrant is sought, offering compensation at least as great as required to be offered to the H-1B nonimmigrant. The employer will (has) offer(ed) the job to any U.S. worker who (has) applied and is equally or better qualified than the H-1B nonimmigrant.

H-1B PortabilityCap-subject employers can transfer H-1B workers with H-1B visas for other employers to their payrolls

• H-1B workers for other cap-subject employers have already been counted against the cap; don’t need to be counted again

• “Portable” workers can start work for new employer upon ‘filing’ of a new H-1B petition- Filing: FedEx receipt or receipt by USCIS?- Possible consular processing required upon approval of

period out of status between jobs

• Can’t “port” workers from cap-exempt employers to commercial employers- Alternative: use concurrent employment- Possible alternative: start with cap-subject employer upon

acceptance of H-1B petition under H-1B portability

Changes in H-1B EmploymentThe highly-regulated H-1B category poses the most complex challenges to changes in the terms of employment, due to DOL ‘prevailing wage’ rules

• Benching: Employer can’t ‘bench’ a worker unless worker continues to be paid prevailing wage

- Can reduce worker hours at WORKER request (maternity leave, FMLA, illness, etc.), but not at EMPLOYER convenience

- Careful of employees requesting part-time work to keep jobs

• Part-time work: Requires new LCA AND amendment of H-1B visa

• Prevailing wage requirements may limit the ability to reduce wages

Preparing for TerminationsSeveral basic rules apply in all hiring/firing situations

• A visa alone does not constitute an employment contract- A visa is permissive, not mandatory, for the period of

authorized employment- Does not change NY ‘employment at will’ doctrine - Still possible to create an employment contract by other

means (handbook, letter agreement, etc.)

• Beware of ‘volunteer’ labor- Fair Labor Standards Act: violation of minimum wage rules

to do for free what is normally compensated employment- Exceptions for activities which are normally volunteer or

educational experience

Preparing for Terminations 2Several basic rules apply in all hiring/firing situations

• Employment visa status terminates when services end- Severance is not relevant to maintenance of status

(but may help for H-1B portability)- NO GRACE PERIOD when employment ends before

period of authorized employment

• Manage interim status carefully- Can change status to B-1/2 visa to buy time to wind

up affairs, let kids finish school year, prepare for movehome

- Employee hoping to use H-1B portability to new employer may choose to delay B-1/2 change of status

- USCIS discretion may overlook gap in H status; otherwise, must travel home to process new H visa

H-1B Termination RulesTermination of H-1B visas is extensively regulated by the Dept. of Labor to prevent perceived prevailing wage abuses

• Notice to USCIS: required upon termination- Requirement to pay prevailing wage for position does

not terminate until notice give to USCIS - Simple letter with EAC# for petition sufficient

• Return transportation requirement- If terminated early by employer, must pay worker’s

return transportation to country of last residence- No enforcement mechanism: report to USCIS only- Not required to provide FUNDS, only

TRANSPORTATION- Can impose reasonable conditions: time limits, etc.- Does not extend to family members or household

goods

Unemployment CompensationCan a terminated worker on an H-1B, TN, F-1 OPT or L visa can collect unemployment after their employment is terminated?

• According to the NYS Department of Labor unemployment website: 

If you are not a U.S. citizen, you may receive unemployment insurance if:- you were working legally when you lost your job - you are legally allowed to take a new job- you meet the other requirements for UI

Illegal aliens or immigrants working without legal permission cannot get unemployment benefits.

• Key requirement: “legally allowed to take a new job”

Unemployment Compensation 2A claimant must also meet minimum earnings requirements.

According to the NYS Dept. of Labor, the claimant must

1.  have worked and been paid wages for employment in at least two calendar quarters in your base period,

    AND2.  have been paid at least $1600 in wages in one of the

calendar quarters in your base period,   AND

3.  the total wages paid in the base period must be one and one-half times the high quarter wages. The amount of high quarter earnings used to determine if this requirement is met will not be greater than $8,910. Earnings in the other base period quarters must total at least one-half of $8,910, or $4,455

“Able and Available for Work”Dept. of Labor policies say that a person must have current work authorization in order to be considered “able and available” to work. 

• This generally means that if an employee needs sponsorship to work, then they are not “able and available” right now

• H-1B or L-1? Require sponsorship, ineligible

• F-1 students with valid OPT work authorization and an EAD?- Do not require sponsorship or any visa paperwork

before they can accept or commence employment- If they meet the other requirements set forth above,

they could apply for UI - Benefits of short duration: F-1 student out of status

after 90 days of unemployment (120 days for STEM students) and no longer eligible to remain in the U.S.

“Able and Available for Work” 2• TN Visas

- The National Employment Law Project: aliens whose status allows them to get automatic work authorization as soon as a job is offered, such as TN visa applicants, have successfully argued that they are “able and available” for work

- Our experience contrary in NY: cases usually denied a) TN visas not really “automatic” work authorization in

this sense: border or USCIS processing required; b) TN applicants are out of status as soon as their TN

status lapses; no entitlement to remain in the U.S. while looking for new employment;c) TN applicant capable of converting to TD or other

dependent status while drawing unemployment may be able to succeed on this issue

‘Green Card’ ApplicantsIt is possible to terminate an employee who is an applicant for a ‘green card’ without terminating the GC process

• No requirement that a beneficiary be working for the sponsoring employer during GC process

- 1950’s: immigrants waited outside US, processed at consulate, then entered to take up sponsored employment

- Processing delays, quotas and expense use of nonimmigrant visas to bridge gap until GC available

- Unspoken assumption that employee is working for sponsor reflected in current legislation

• Job must exist at all times, but person doesn’t need to be in it until approval

• Employer and employee must intend that employee will return to sponsored employment upon GC completion

AOS PortabilityApplicants for adjustment of status meeting statutory conditions, and with a valid EAD, can change employers and not have their visa petition and adjustment of status terminate.

• Statutory requirements- I-140 must have been approved;- AOS must have been pending for at least 180 days; and- Applicant must be going to a position in the ‘same job

classification’ as the sponsored employment

• Must notify USCIS of change of employer, nature of new job

• Changing employers before I-140 approved or AOS pending 180 days MAY work, with cooperation of sponsoring employer

- USCIS authority vague: but no safe harbor unless approved- One case: approval of AOS pending fewer than 180 days

ConclusionEmployers armed with knowledge of alternatives can

• better continue to recruit, hire and retain foreign employees made nervous by the economy

• help foreign workers transfer to new employers if terminations must happen

• help maintain visa status for terminated employees, and keep options open for their later return to the employer

• preserve the investment made in the ‘green card’ process for a foreign employee

Contact Information

Immigration Practice GroupWhiteman Osterman & Hanna Leslie K. L. Thiele Seth R. Leech One Commerce Plaza lthiele@woh.com sleech@woh.comAlbany, New York 12260Tel: (518) 487-7600 Scott T. Decker L.J. D’Arrigowww.woh.com sdecker@woh.com ldarrigo@woh.com

The information in this presentation is intended as general background information on immigration law and visa categories. It is not to be considered as legal advice with regard to any current or future immigration application. Immigration law changes often and processing information becomes rapidly outdated. Please consult your immigration counsel before taking action on immigration matters.

© 2009 Whiteman Osterman & Hanna LLP