wsm immigration basics

Weaver Schlenger Mazel LLP Flora Hoffman, Lisa Baker Jones, Laura J. Mazel, Stephanie Smith

March 2, 2012

An Introduction for HR Professionals

U.S. Immigration Basics

HR Certification

This program, ORG-PROGRAM-110601, has been approved for 3.00 (General ) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute. Please be sure to note the program ID number on your recertification application form. For more information about certification or recertification, please visit the HR Certification Institute website at www.hrci.org

© 2012 Weaver Schlenger Mazel LLP2

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Immigration 101

Different Agencies

US Citizenship and Immigration Services (USCIS)

Department of State (DOS)

Department of Labor (DOL)

Visa Stamp vs. Visa Status

Common Status Documents

Form I-94

Form I-797 Approval Notice

Common Forms


Temporary and Permanent Work Visas

Permanent Resident Status

• Intention to remain in the United States on a permanent basis

• Permission to live and work indefinitely in the United States

• Not employer specific

• First step toward citizenship

Temporary Visas

• Intention to stay temporarily in the United States

• Permission to engage in certain activities at certain specified places as authorized by the specific visa category utilized

• A to V

• Dual intent allowed for some categories


Non-Immigrant Visas

Student (F) Visa

• Non-immigrant temporary intent required

• Generally, students may work for 12 months after graduation in their field (STEM fields may get 17 more months)

• Proceeding to permanent residency status inconsistent with F status


Non-Immigrant Visas

Specialty Occupation(H-1B) Visa

• The position offered must require at least a BA/BS degree in a particular field

• The individual must possess the required degree or equivalent

• No shortage necessary but LCA required

• Renewed in 3-year increments for a total of 6 years

• Limited extensions beyond 6 years

• Portability


Non-Immigrant Visas

Australian E-3 Professional Visa

• Like H-1B but for Australians only

• Only 10,000 per year

• Processing directly at the U.S. Consulate overseas

• Spouse eligible for EAD

• May extend indefinitely


Non-Immigrant Visas

Trade NAFTA (TN) Visa

• Generally used for Canadian nationals

• Only “professionals” on the list

• Up to 3 year initial grant; renewed in one-year increments

• Proceeding to permanent residency status inconsistent with TN status


Non-Immigrant Visas

Intracompany Transferee (L) Visa

• Related company abroad seeks to transfer employee

• Employee has worked for 1 year abroad

• 5 to 7 year limit on stay for executives/managers or specialized knowledge

• Dual intent status: can be in L status and proceed to permanent residency

• Spouse can obtain work authorization


Non-Immigrant Visas

Extraordinary Ability in the Sciences, Education,

Athletics, Business or Arts (O) Visa

• Small percentage at very top of field

• Consultation from peer or industry group

• International award of high acclaim or 3 out of list

• Up to 3 years initially; extensions in one year increments

• No work authorization for spouses


Non-Immigrant Visas

Trader/Investor (E) Visa

• Individual must be a national of a treaty country and must:

• Carry on substantial trade in the US or

• Invest in a US entity

• Unlimited duration (renewed in 1 year increments)


Non-Immigrant Visas

Exchange (J) Visa

• For students or trainees

• Short-term placement

• Company must have bona fide training program

• Participant must be fluent in English

• Beware of 2 year residency requirement


Non-Immigrant Visas

Business Visitor (B) Visa

• To engage in business activities

• No payment from US

• Demonstrate ties to home country

• Limited time period


QUESTIONS AND ANSWERS

© 2012 Weaver Schlenger Mazel LLP

PERM, I-140, I-485

Permanent Residence Overview

Permanent Residency Process

A.k.a. “green card”

Three Components of Process

• PERM Labor Certification (some exceptions)

• Immigrant Visa Petition (I-140)

• Application for Permanent Residence (I-485)


Step 1: Labor Certification Process


Must be able to establish shortage of minimally qualified U.S. workers

PERM:

• Position specific• Recruitment done before filing• Filed electronically with Department of Labor (DOL)• Estimate 5 months for processing once filed• DOL auditing 33% of applications to date for FY2012• Special Handling for college and university professors• Establishes Priority Date and Preference Category

Step 2: Form I-140 (Immigrant Visa Petition)


• Qualifies employee for employer-sponsored immigrant visa

• Filed with USCIS

• Estimate 4 months for processing once filed

• Concurrent filing option for current priority dates

• Employer must show ability to pay

Priority Dates and Visa Retrogression


• Preference Categories (EB-1, EB-2, EB-3)

• Visa Quota System and per country limits

• Country of Birth and Cross-Chargeability

• Department of State

• Current visa bulletin available at www.wsmimmigration.com

Priority Dates and Visa Retrogression


March 2012 dates

Category Country of Birth Date

EB-2 India 1-May-2010

EB-3 India 22-Aug-2002

EB-2 China 1-May-2010

EB-3 China 1-Jan-2005

EB-2 all otherscurrent

EB-3 all others 15-Mar-2006

Step 3: Adjustment of Status to Permanent Resident


• When PD is current, employee can file Form I-485

• Filed with USCIS, or can process overseas

• Family included at this stage

• Need birth records, marriage records, medical exam, etc.

• Current processing time is 4 months from filing

• Travel restrictions

• Portability


QUESTIONS & ANSWERS

Non PERM

Best Immigrant Visa OptionsAvailable to Researchers and

Others

EB-2 Category

• National Interest Waiver

• Schedule A Group II

• PERM

Subject to Visa Retrogression – Important for Chinese and Indian nationals

EB-1 Category

• Extraordinary Ability Petition

• Outstanding Researcher Petition

Advantage:Best protection against visa retrogression!

© 2011 Weaver, Schlenger & Mazel24

Employment Based First Preference Visas (EB-1)

Outstanding Researcher

• Challenging but USCIS has been more reasonable lately

• Ideal for nonprofit research institutions and some private companies with R&D departments

• Can be difficult for postdocs early in their careers

Extraordinary Ability

• Most difficult


Disadvantage:Very difficult standard

Employment Based Second Preference Visas (EB-2)

Schedule A Group II

• Employer must act as petitioner

• Exceptional ability standard (less onerous than EB-1)

National Interest Waiver

• Foreign national can self-petition

• Exceptional ability standard (less onerous than EB-1)


Requirements:

• On-site posting required

• Prevailing Wage Determination required

• In-house Media Statement/Posting

Advantage:

Can be filed by Premium Processing

Schedule A Group II Petitions: EB-2

Requirements and Processing Times:

• Must show work in the National Interest

• Individual plays critical role in the project

• Cannot be premium processed

Can work for Nonprofit research institutionsCompanies with R&DAdvantage:Less HR/ADMIN Work, no internal posting, PWD, etc.Employee can self petition

National Interest Waiver Petitions: EB-2

Immigration Compliance

Maximizing Immigration Compliance

• Preparation versus Denial

• Know Which Government Agencies Can Come Knocking:

I-9s: ICE and DOLLCAs for H-1B: DOL, USCIS, ICE

PERM: DOL, USCIS, ICEExport Control: Commerce, DOJ,

DOD, Treasury, CIA, FBI, NSA, Energy or Homeland Security


Unprecedented highs in enforcement and legislative activity related to Form I-9 and E-Verify compliance

From 2009 to 2011, ICE :

• audited more than 6,468 employers;

• debarred about 521 companies and individuals; and

• imposed more than $76.3 million in penalties.

Status of Worksite Enforcement

What the Government Wants to See

• I-9s and Payroll Records

• Labor Condition Applications for H-1B Workers

• PERM documents

• Export control as applied to foreign national employees and visitors

• E-Verify and IMAGE programs


What about E-Verify and IMAGE?

• E-Verify and IMAGE in a nutshell

• When E-Verify is and is not mandatory

• Advantages: Additional work authorization for STEM graduates

• Can enroll in E-Verify without IMAGE

• How to make the decision? Who at the company needs to be involved?

• What steps should HR take before enrolling?


How Can You Prepare for a Government Audit?

• Establish chain of command protocol in your company (starting with receptionist!)

• I-9 Best Practices

• H-1B LCA public access files

• Remember When to Withdraw H-1Bs with Early Termination

• PERM documentation

• Sensitive technology reviews


What About Electronic I-9 Systems?

• Civil penalties — Chipotle; Abercrombie & Fitch

• Memorandum of Understanding (MOU)


Current Immigration Climate and Legislative Updates

Current Immigration Climate

• Silicon Valley is hiring, but unemployment remains high in rest of country

• PERM audit rate is 33%

• RFEs for H-1B, L-1 and O-1 petitions

• Long waits at American Consulates


Current Immigration Climate

• Culture change within USCIS is slow but coming

• President’s Council on Jobs and Competitiveness

• Employers in Residence Program

• Small Business Administration task force

• Balance creation of US jobs with protectionism during an election year


Pending Legislation

• Zoe Lofgren’s Immigration Driving Entrepreneurship in America (IDEA) Act

• Michael Bennet’s STEM Visa Act

• Fairness for High-Skilled Immigrants Act


Tips on Drafting Immigration Policies

• Ensure all employees treated consistently

• Involve immigration counsel

• Develop calendar for self audits for I-9s, H-1B Public Access Files and PERM compliance folders

• Have system to be mindful of export control rules

• Review contractor relationships

• Consider E-Verify when appropriate

Policy Tips

THANK YOU FOR JOINING US!


For more information…

Please contact: Flora Hoffman [email protected]

Lisa Baker Jones [email protected]

Laura J. Mazel [email protected]

Stephanie Smith [email protected]

mailto:[email protected]


