Transcript Slide 1

Immigration Strategies
for Difficult Times
Leslie K. L. Thiele, Esq.
March 4, 2009
Overview
Hard 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
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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.
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No new announcements of ground-breaking relief such as the
F-1 OPT extensions for STEM degrees in 2008
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‘Cap gap’ protections announced in 2008 still exist for cases
selected in the lottery
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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
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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
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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
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Required to make "H-1B Dependent Employer" attestations
on the Labor Condition Applications (LCAs) filed for petitions for
new H-1B employees.
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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.
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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 Attestations
The 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 Attestations
The 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 Portability
Cap-subject employers can transfer H-1B workers with H-1B visas for
other employers to their payrolls
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H-1B workers for other cap-subject employers have already been
counted against the cap; don’t need to be counted again
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“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
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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 Employment
The highly-regulated H-1B category poses the most complex
challenges to changes in the terms of employment, due to DOL
‘prevailing wage’ rules
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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
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Part-time work: Requires new LCA AND amendment of H-1B
visa
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Prevailing wage requirements may limit the ability to reduce
wages
Preparing for Terminations
Several basic rules apply in all hiring/firing situations
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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.)
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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 2
Several basic rules apply in all hiring/firing situations
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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
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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 move
home
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 Rules
Termination of H-1B visas is extensively regulated by the Dept. of
Labor to prevent perceived prevailing wage abuses
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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
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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 Compensation
Can a terminated worker on an H-1B, TN, F-1 OPT or L visa can
collect unemployment after their employment is terminated?
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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.
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Key requirement: “legally allowed to take a new job”
Unemployment Compensation 2
A claimant must also meet minimum earnings requirements.
According to the NYS Dept. of Labor, the claimant must
1.
2.
3.
have worked and been paid wages for employment in
at least two calendar quarters in your base period,
AND
have been paid at least $1600 in wages in one of the
calendar quarters in your base period,
AND
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.
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This generally means that if an employee needs sponsorship
to work, then they are not “able and available” right now
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H-1B or L-1? Require sponsorship, ineligible
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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
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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
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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’ Applicants
It is possible to terminate an employee who is an applicant for a
‘green card’ without terminating the GC process
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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
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Job must exist at all times, but person doesn’t need to be in
it until approval
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Employer and employee must intend that employee will return to
sponsored employment upon GC completion
AOS Portability
Applicants 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.
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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
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Must notify USCIS of change of employer, nature of new job
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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
Conclusion
Employers armed with knowledge of alternatives can
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better continue to recruit, hire and retain foreign employees
made nervous by the economy
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help foreign workers transfer to new employers if terminations
must happen
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help maintain visa status for terminated employees, and keep
options open for their later return to the employer
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preserve the investment made in the ‘green card’ process for
a foreign employee
Contact Information
Immigration Practice Group
Whiteman Osterman & Hanna
One Commerce Plaza
Albany, New York 12260
Tel: (518) 487-7600
www.woh.com
Leslie K. L. Thiele
[email protected]
Seth R. Leech
[email protected]
Scott T. Decker
[email protected]
L.J. D’Arrigo
[email protected]
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