Transcript Human Resources: An Introduction

Immigration Matters
2014 Territorial Human Resources
Conference
Presented by: Rebecca R. Massiatte
Jackson Lewis P.C
Tuesday, April 29, 2014
Temporary versus Permanent
(Nonimmigrant versus Immigrant)
• Temporary (restricted, time limited)
– B-1/B-2: Visitors
– J-1: Interns, Trainee, Camp Counselor
– R-1: Religious Worker
– F-1: Student
– H-1B: Specialty Occupation
• Permanent (unrestricted employment)
– Lawful Permanent Resident
• Employment-based (Special Immigrant)
• Family-based (marriage to LPR or USC)
B-1 / B-2 : Temporary Visitor
• B-1: temporary business visitor; no
remuneration except incidental costs
• B-2: visitor for pleasure (Disneyland,
visit family)
• Other nuanced purposes allowed
• Invitation letters
• Visa required except may use Visa
Waiver Program (ESTA registration)
• Visa Waiver: max 90 days, no ext.
J-1: Interns, Trainee, Camp Counselor
• U.S. Dept of State administers the J-1 program
• DS-2019: Certificate of Eligibility for Exchange Visitor Status
issued by sponsoring agency
• Intern: Internship programs are designed to allow foreign
college and university students or recent graduates to come
to the United States to gain exposure to U.S. culture and to
receive hands-on experience in U.S. business practices in
their chosen occupational field
• Trainee: Training programs are designed to allow foreign
professionals to come to the United States to gain exposure
to U.S. culture and to receive training in U.S. business
practices in their chosen occupational field
• Camp Counselor: The Camp Counselor Program enables
post-secondary students, youth workers, and teachers to
share their culture and ideas with the people of the United
States in camp settings throughout the country
Camp Counselors
• Sufficiently proficient in the English language to
supervise and interact with American youth;
• A foreign post-secondary student, youth worker,
teacher or individual with specialized skills; and
• At least 18-years-old
• Financial value: Participants receive pay and
benefits commensurate with those offered to their
American counterparts at the camps.
• Camp Counselors will occasionally have to:
Perform non-counseling duties as part of camp
life, but not serve as “staff.” For example, they
cannot serve as administrator personnel, cooks or
menial laborers such as dishwashers or janitors.
R-1: Qualifying Membership
The Salvation Army—USA Southern Territory is a part of the national
organization of The Salvation Army which is a part of the international religious
organization, The Salvation Army, based in London, England. The Salvation
Army, founded in 1865 in London, England where it continues to maintain its
international headquarters, is an international religious organization and
movement organized and operated on a quasi-military pattern and is a branch
of the Christian Church. This organization, which is active in over 100 countries
throughout the world, seeks advancement of the Christian religion and of
Christian education. The motivation of the organization is love of God and a
practical concern for the needs of humanity. This is expressed by a spiritual
ministry, the purposes of which are to preach the Gospel, disseminate Christian
truths, supply basic human necessities, provide personal counseling and
undertake the spiritual and moral regeneration and physical rehabilitation of all
persons in need who come within its sphere of influence regardless of race,
color, creed, sex, or age.
The Salvation Army’s membership includes officers (clergy), soldiers/adherents
(laity), members of various activity groups and volunteers who also serve as
advisors, associates, and committed participants in its service function.
The Basics – R-1Temporary Work Visa
Religious Worker:
Petition Based Process
File Form I-129 Petition for Nonimmigrant Worker with
U.S. Citizenship and Immigration Service (USCIS)California Service Center
Qualifying Criteria
-2 Year Membership in The Salvation Army (in/out of US)
-Position offered: Vocation of a Minister of Religion (Corps
Officers); to work in a professional capacity in a religious
vocation or occupation; or religious vocation or occupation
-full time or part time
Request for Additional Evidence
R-1 Temporary Work Visa cont.
5 year maximum period (granted in 30 month increments)
Dependent spouse and children (under 21 years) can seek R-2
dependent status (spouses canNOT work in R-2 status)
No prevailing wage requirements (such as is required for H1Bs)
Processing Times Can Vary- Average 4 months; premium
processing available (additional $1225 filing fee) for 15
business day adjudication
Petition Filing Fee: $325.00
**Obligation to notify immigration of change(s) in employment
Training / Transition to & from F-1
To attend the College on a full time basis, F-1 student status
must be secured (in certain instances, timely application with
USCIS is sufficient).
To secure F-1 student status, the College must initiate processing in
the SEVIS system for issuance of Form I-20 (establishes start/end
dates of program).
With the Form I-20 issued by the College, the student must request a
change of status from his/her current status (R-1, H-1B, etc.) to F-1.
A request to change status must be signed & submitted by the student
to U.S. Citizenship and Immigration Service on Form I-539, Application
to Change/Extend Status, along with supporting evidence.


Signed Form I-20 (school & student), maintenance of status documents (prior R-1/H1B approvals, I-94, payroll records); passport for identification
Qualifying dependents require individual I-20 but can file together on Form I-539
Training / Transition to & from F-1
cont.
To seek a change of status to F-1, the applicant must be
present in the U.S. in a valid status (this is the same to change
from F-1 to R-1-must be in a valid status).
Once USCIS receives the I-539 Application to Change Status,
an applicant may be allowed to commence studies at the
College while the application is in process. Various factors can
influence this, including maintenance of status. (B-1/B-2 and F2 must have approval prior to commencement of studies/2.5
months processing time).
Whether an applicant is in status at the time of application can
be assessed upon a close review of their immigration
documentation (this should be done when considering any
change of status). F-1s- admitted “duration of status.”
Training / Transition to & from F-1
cont.
Other option to secure F-1 status is to travel outside the U.S. and
make a visa application at the U.S. Embassy/Consulate abroad.
 Intent to maintain foreign residence, ties, intent to return
Maintain valid passport and update concerning any travel, updating
the College concerning travel (new I-94, visa) and address changes.
While I-539 Request to Change Status to F-1 is pending, no travel is
authorized.
Full-time status enrollment
Work during school and necessary authorizations
CPT: Curricular Practical Training (I-20 endorsement)
OPT: Optional Practical Training (EAD)
Failure to Maintain Status
Unlawful Presence/Status (accumulated on/after April 1, 1997)
Up to 180 days
-no formal bar
-may have issues in future visa application
181 days and up to 1 year
-3 year bar
-waiver: hardship to qualifying family member***
1 year or more
-10 year bar
-waiver: hardship to qualifying family member***
***the person’s U.S. citizen or permanent resident spouse or parent(s) would suffer
“extreme hardship” unless the person was granted a waiver
Graduation, Orders…what is next?
Optional Practical Training
Apply up to 90 days before graduation
Takes up to 90 days to approve by immigration
Need employment authorization card in hand to work
Request to change status to R-1
R-1 must be approved to commence employment in R-1
status (R-1 approval evidence of work authorization)
Maintenance of Status consideration
Can request R-1 up to 6 months of requested start date but
must meet criteria for the position offered at the time of filing
(Corps Officers/Ministers of Religion scenario)
Upon completion of F-1 student status / OPT- is there a “grace
period”?
60 days from degree program completion (see dates on I20/active in SEVIS, OPT document authorized)
H-1B: Specialty Occupation
• A position that requires at minimum for
employment a bachelors level degree in a
specialized field.
• Prevailing Wage Requirement- specific to location
of intended employment
• 6 year limit (approved in 3 year increments)
• File I-129 Petition; $2,325 govt filing fees
• Avg. 6 months proc.; expedite available ($1,225)
• Site Visits – random or for cause (fraud)
• H-1B Cap: 65K (bachelors) + 20K (U.S. masters)
– April 1-7, 2014: USCIS rcd 172,500 petitions
– Lottery
Deferred Action for Childhood Arrivals
1. Were under the age of 31 as of June 15, 2012;
2. Came to the United States before reaching your 16th birthday;
3. Have continuously resided in the United States since June 15,
2007, up to the present time;
4. Were physically present in the United States on June 15, 2012, and
at the time of making your request for consideration of deferred
action with USCIS;
5. Entered without inspection before June 15, 2012, or your lawful
immigration status expired as of June 15, 2012;
6. Are currently in school, have graduated or obtained a certificate of
completion from high school, have obtained a general education
development (GED) certificate, or are an honorably discharged
veteran of the Coast Guard or Armed Forces of the United States;
and
7. Have not been convicted of a felony, significant misdemeanor, three
or more other misdemeanors, and do not otherwise pose a threat
to national security or public safety.
Visa Versus Status
Function of a U.S. Visa (stamp in passport)
Issued by U.S. Embassy/Consulate Abroad
Facilitates request to enter in specific status at the port
of entry
Visa Reciprocity
Function of Status
Authorizes stay in the U.S. in specific classification
Status is indicated on Form I-94 and Form I-797 Notice
of Action from USCIS
Evidence from CBP: https://i94.cbp.dhs.gov/I94/request.html
Considerations:
Impact on Changing Status in the U.S. and then applying for
Visa
Timeline and green card processing
The Basics – Permanent Residence
The “Green Card”:
Petition Based Process
File Form I-360 Special Immigrant Petition with U.S.
Citizenship and Immigration Service (USCIS)
Petition Filing Fee: $405.00
Annual limit of immigrant visas
Qualifying Criteria
-2 Year Membership in The Salvation Army
-2 Years Experience in Qualifying Position offered:
Vocation of a Minister of Religion (Corps Officers); to
work in a professional capacity in a religious vocation
or occupation; or religious vocation or occupation
- Full Time only (no part time)
.
The Basics – Permanent Residence
cont.
For married couples who are both in R-1 status, or both
graduates of the College and who seek LPR status, only one I360 needed.
Must wait for I-360 to be approved before filing Form I-485
Application to Adjust Status to Permanent Resident.
Work Authorization Considerations, maintaining ability to work
Reminder R-1 max period of 5 years
Timeline and when to file Form I-360
Form I-360 cannot be expedited
Standard processing time: 6 months
Identified Trend: Requests for letters from the specific work
location
The Basics – Permanent Residence
cont.
Once the I-360 is approved, Form I-485 Application to Adjust
Status to Permanent Residence can be filed by the I-360
beneficiary and qualifying dependents (assuming current status
of the Visa Bulletin).
The I-485 Application is the final step of the green card process
and requires the individual applicant to demonstrate his/her
eligibility for a green card (no grounds of inadmissibility).
Upon the approval of Form I-485, the permanent resident card
is issued (mailed to the applicant) and permits unrestricted
authorization for employment in the position described in the
underlying Form I-360.
Changes in position, reasonable period of employment
Attestations
The Petition process for both Form I-129 for R-1 Status and
Form I-360 for Special Immigrant Status require the attestation
by The Salvation Army – USA Southern Territory of certain
facts:
Number of Petition Filings
Employees at the Particular Worksite
Full Time/Part Time Status
Number of prior petitions filed
Compensation (salaried/non-salaried)
Membership
Qualifications for the position
Consequently, communication with THQ is critical!
Considerations for the Permanent Resident
A permanent resident:
• Is still subject to the immigration laws
• CanNOT vote (only U.S. citizens can vote)
• Can qualify to apply for naturalization upon 5 year
anniversary of permanent resident status (3 years if
permanent resident status acquired as a result of
marriage to a U.S. citizen)
• Must demonstrate intent to reside in the U.S. (no
abandonment of permanent resident status- presumption of
abandonment if outside the U.S. 1 year or longer)
• Orders for foreign assignment – steps available to “show”
intent to return to the U.S. upon conclusion of foreign
assignment and that there is no intent to abandon
permanent residence
– Reentry Permits to Enter (must apply for in the U.S., biometrics)
Internal THQ Process
Step 1: Division identifies potential candidate.
Step 2: Contact THQ HR Immigration Administrator as
quickly as possible with as much background information as
you have, such as:
•
•
•
•
•
Copies of any previously issued visas (complete copy of current
passport, including blank pages)
Copies of any current immigration receipts, approvals, as issued by
USCIS
List of all prior entries into the U.S. showing visa type (due to
temporary visa limits on duration of stay)
Confirmation place and country of citizenship (visa
options/considerations)
Employment History / Resume (visa options/considerations)
Internal THQ Process
cont.
Step 3: Immigration Administrator will review information to
determine the required process
Every case is unique! A single fact can change the
circumstances of an individual’s case and immigration
options/outcomes. Details, details, details….
Note: All information is retained in THQ HR in a confidential
manner.
Step 4: Immigration Administrator notifies Division of any
potential concerns
With early notification, THQ Immigration Administrator can
advise all concerned if there is a potential hindrance to
obtaining the desired immigration status.
Internal THQ Process
cont.
Step 5: THQ and the Division develops the action plan,
strategy, timeline with an awareness of legal options,
requirements and limitations.
If there are “red flags” assess how this impacts your plan,
strategy and timeline and identify options.
Awareness of any prior immigration filing is critical.
Practice an ongoing awareness and sensitivity with regard to
the information that is presented to USCIS.
Be aware of the Fraud Detection and National Security Unit at
USCIS – unannounced visits on location and email inquiries to
confirm the terms outlined in an immigration submission
Possible Immigration Scenarios for
Incoming Candidates
(Red Flags/Traps)
1. Current R-1 status/visa expires after start of the training
session (Visa process has been handled by TSA).
•
•
EBC/Applicant files Form I-539 Application to Change Status to F-1
Student (90 days prior to start of current training session.)
Candidate can start training session upon confirmation that Form I539 has been received by USCIS and is pending.
2. Current R-1 visa expires before start of the training session
•
•
•
Important that TSA Immigration Administrator be notified as early
as possible of potential acceptance as candidate.
Renewal of R-1 status/visa must be initiated with USCIS to
“maintain status”; must be filed PRIOR to R-1 expiration date.
Timing is critical.
Possible Immigration Scenarios for
Incoming Candidates
(Red Flags/Traps)
3. H-1B Visa – prior employer/not employed by The Salvation
Army
•
•
•
Employer notifies USCIS no earlier than 30 days prior to
termination of employment.
Employment cannot terminate earlier than approximately July 5
(depending on start of training session).
If we do not have any information, the end result could be that the
H-1B visa holder finds himself out of status because the previous
employer withdrew sponsorship of the H-1B resulting in a lapse of
time between the H-1B termination and filing of Form I-539maintenance of status issue.
4. H-1B Visa – employed by The Salvation Army
• Termination of employment cannot be earlier than 30 days prior to
•
•
start of training session.
TSA Immigration Administrator would have control of filings.
Can maintain legal H-1B status/employment for visa holder.
Possible Immigration Scenarios for
Incoming Candidates
(Red Flags/Traps)
5. Green Card Pending Application (petition being handled by
TSA)
•
•
Form I-485 has been filed with USCIS and is pending adjudication.
Visa holder can start training, but does not change to F-1 student
status.
Training in furtherance of anticipated permanent job offered.
6. Green Card Pending Application (candidate has submitted
petition personally)
• Important that THQ Immigration Administrator be notified of status
of process prior to final arrangements for start of training to assess
options, implications of pending application(s) with USCIS.
7. Approved Green Card
•
Candidate will have no problem attending College and will be free
to travel while in training.
You have a support team!
THQ Immigration Administrator:
Ms. Mary Ann Harold, ext. 10606
Territorial Human Resources Secretary:
Major Annette Dodd, 404-728-1307
Territorial Assistant Human Resources Director:
Ms. Regina Davis, ext. 10474
Immigration Team at Jackson Lewis LLP
Thank You & Questions
Rebecca R. Massiatte
Partner
jackson|lewis LLP
500 N. Akard
Suite 2500
Dallas, TX 75201
214.520.2400 | General
972.728.3261 | Direct
214.520.2008 | Fax
[email protected]
www.jacksonlewis.com