Transcript LABOR ISSUES RELATIVE TO LOCAL GOVERNMENTS: The …
Immigration Options For Hiring and Retaining Foreign Personnel: Current Issues and Emerging Challenges
“ Fall into the Mystic-al World of HR” 2009 Eastern Region IPMA-HR Training and Development Conference Mystic, Connecticut October 4 – 7, 2009 Seth R. Leech, Esq.
Whiteman Osterman & Hanna LLP Albany, New York
OVERVIEW OF THE IMMIGRATION PROCESS
1-18 yrs .
Nonimmigrant Visa Immigrant Visa LPR / “Green Card ” 3-5 yrs.
Citizenship B-1/2 E-1/2 E-3 F -1 H-1B H-2 H-3 J-1 L-1 O-1 R-1/2 TN Visitor for Business/Pleasure Treaty Trader/Investor Specialty worker – Austr. Student - OPT Specialty worker Temporary Worker Trainee Exchange Visitor Intracompany Transferee Alien of Extraordinary Ability Religious Worker Trade NAFTA
FAMILY-BASED CATEGORIES
IR Immediate relatives FB-1 Unmarried sons/daughters of USCs FB-2 Spouses/children of LPR FB-3 Married sons/daughters of USCs FB-4 Brothers/sisters of USC
EMPLOYMENT-BASED CATEGORIES
EB-1 Outstanding researchers Aliens of extraordinary ability Multinational managers EB-2 Advanced degrees/NIW EB-3 Professionals 2 yrs. experience Other workers EB-4 Special immigrants/religious EB-5 Investors 3 yrs. if by marriage to U.S. citizen 5 yrs. for everyone else Whiteman Osterman & Hanna LLP
H-1B VISAS: PROFESSIONALS
REQUIREMENTS
1. Job must require BA/BS degree or equiv. as minimum entry-level requirement 2. Applicant must have degree equivalent to U.S. BA/BS, or equiv. experience 3. Employer must pay at least prevailing wage for the position in geographic area NO TEST OF U.S. LABOR MARKET REQUIRED: No advertising, no recruitment Collective bargaining agreements will be accepted for prevailing wage
APPLICATION STEPS
1. Determine prevailing and actual wage for position 2. File Labor Condition Application (LCA) with U.S. Dept. of Labor - TARP funding problem (no problems with stimulus funding) 3. File visa petition with USCIS 4. Issuance of visa to alien - If in U.S., change status with visa petition - If overseas, apply at U.S. Consulate overseas for entry visa - Canadians apply at U.S. border
TIMETABLE
2-5 months
DURATION
Granted for 3 years Renewable for 3 years Premium processing: USCIS decision in 15 days May extend beyond 6 years if GC or PERM pending 1 year or 3 years if I-140 immigrant petition approved May work as soon as filed if held H-1B visa before
COSTS
$320 USCIS filing fee $500 Antifraud fee $1,500 ACWIA fee (limited exemptions) - prevailing wage - credentials evaluation - premium processing ($1,000) Whiteman Osterman & Hanna LLP
H-1B VISAS – THE NUMERICAL CAP
H-1B VISAS CURRENTLY CAPPED AT 65,000 PER YEAR
• Cap raised to 195,000 in past; back to original level of 65,000 visas in Fiscal Year (FY) 2004* • • Singapore & Chile Free Trade Agreements: 6,800 visas reserved Cap exceptions for colleges, universities and some government research institutions
CAP REACHED EARLIER EACH YEAR
• FY 2004: cap reached February 17, 2004 • FY 2005: cap reached October 1, 2004 • FY 2006: cap reached August 10, 2005 • • • • FY 2007: cap reached May 25, 2006 FY 2008: cap reached Monday, April 2, 2007 FY 2009: 165,000 petitions for 65,000 visas (4½ months into FY) (1 st day of FY) (7 weeks before FY begin) (7 weeks after filing season began) (1st day of filing season April 1) (lst day of filing season April 1) FY 2010: still H-1Bs available as of the preparation of this presentation
ADVANCED DEGREE ALLOCATION
• 20,000 visas reserved for Master or higher graduates of U.S. colleges • FY 2010: Master’s cap reached on April 1– but Master’s cases now considered in Bachelor’s cap
* Fiscal Year (FY) begins in October and applicants for H-1Bs can apply 6 months in advance, or by April 1. FY 2010 began on October 1, 2009. Thus, applicants for an FY 2010 (beginning October 1, 2009) H-1B visa should have applied no later than April 1, 2009.
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H-1B – IS YOUR ORGANIZATION EXEMPT?
THE ANNUAL NUMERICAL CAP
• • • Many state agencies and non-profits are not exempt from the numerical limitations Cap exempt organizations include: colleges and universities, entities affiliated with colleges and universities and certain research organizations.
H-1B transfer from cap-subject organizations are exempt
H-1B FEE EXEMPTIONS
• Many state agencies and non-profit organizations are not exempt from H-1B fees • Fee exempt organizations include educational institutions, entities affiliated with colleges and universities and governmental research organizations • PRACTICE TIP: Carefully review fee exemptions prior to filing. Many pay H-1B fees when not necessary. USCIS will not refund your money.
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ALTERNATIVES TO THE H-1B
• TN (Trade NAFTA) for Canadians and Mexicans in specified professions • Special Free Trade Hs for Chileans and Singaporeans • E-3s for Australian professionals • O-1s (Aliens of Extraordinary Ability) • F-1 students (CPT and OPT) • H-2Bs for temporary need (usually unskilled) workers • J-1s, H-3s, Ps, Qs, etc.
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F-1 STUDENTS – GENERAL BACKGROUND
• Approximately 700,000 foreign students studying at U.S. colleges and universities • No limits on number of F-1 students • Many F-1 students will seek employment opportunities in U.S.
• Tax issues for F-1 students can be tricky Whiteman Osterman & Hanna LLP
REQUIREMENTS
F-1 STUDENTS: PRACTICAL TRAINING
APPLICATION STEPS TIMETABLE DURATION
Curricular Practical Training (CPT) during school if work ties into curriculum Optional Practical Training (OPT) before or after graduation: 1. Student has completed 12 months full-time study at U.S. university 2. No restrictions on employer: no employer petition to USCIS 1. Designated School Official must endorse student paperwork 2. OPT: Student applies for Employment Authorization Document (EAD) 90 – 120 days in advance of working Student may start work when EAD is issued 3. CPT: Student may start work after endorsement CPT: no wait OPT: 90 – 120 days for EAD CPT: no limit, but no OPT available if student has worked 12+ months on CPT OPT: • up to 12 months total before and after graduation • up to 29 months for STEM occupations
COSTS
USCIS filing fee: $340 for EAD Whiteman Osterman & Hanna LLP
SPECIAL OPTIONAL PRACTICAL TRAINING RULES
• To alleviate consequences of insufficient H-1B numbers in 2008, OPT extended from 1 year to 29 months - Only applies to graduates currently in valid OPT - Only applies to graduates with Science, Technology, Engineering, or Mathematics (STEM) degrees - Employer must register for E-verify • Cap gap protection for all OPT holders
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REQUIREMENTS
TN VISAS : TRADE NAFTA
APPLICATION STEPS Canadian or Mexican citizen:
Job on list of TN professions, e.g.: Teacher (high school & univ.) Mgmt. consultants Science/engineering Systems analysts Medical professionals Must have req’d education or training: usually BA/BS and/or license. Exceptions include: Mgmt. consultants Scientific technicians Systems analysts (2 yr. degree min.)
Canadians:
Apply at U.S. border or airport port of entry: processed on the spot No visa petition or USCIS preprocessing required
Mexicans:
Apply at U.S. consulate in Mexico; fast processing
TIMETABLE DURATION Canadians:
Almost immediate Avoid processing at high-traffic or holiday weekends May be granted up to 3 years Renewable without set limitation
Mexicans:
2-3 weeks: Must make appt. at consulate
COSTS
USCIS Filing Fees: $56+$6 per I-94 Whiteman Osterman & Hanna LLP
J-1 VISAS: EXCHANGE VISITORS
REQUIREMENTS
1. Must be sponsored by organization with approved J-1 program 2. Must fall within sponsor’s defined program: e.g., research scholars, trainees,
professors, specialists, etc.
3. Some participants are subject to mandatory two year home residency requirement. Waiver of requirement can be difficult or impossible.
APPLICATION STEPS TIMETABLE DURATION
1. Approved J-1 sponsor organization issues DS 2019 to applicant 2. Issuance of J visa - If in U.S., change status via USCIS - If overseas, apply for J-1 entry visa stamp at U.S. consulate overseas 3. Applicant may start work when has I-94 with J-1 stamp in hand 30 days for DS-2019 2 weeks - 3 mos. for consular processing
OR
4-6 months for change of status Depends on category: 1 month to six years Research scholars: 3 years Trainees: 18 months Specialists: 1 year
COSTS
DS-2019: depends on umbrella organization, if used Visa application fees at consulate or $300 for change of status Whiteman Osterman & Hanna LLP
H-1Bs AND TNs IN AN UNCERTAIN ECONOMY: TERMINATIONS, LAYOFFS AND CUTBACKS
H-1B VISAS Example 1 - Termination of H-1B employee
• Notify USCIS immediately • Employer responsible for return travel cost
Example 2 - Furlough/cut in hours or pay
• Employer obligation to pay prevailing wage • Must do new prevailing wage request and new LCA
Example 3 - Termination of other employees
• No impact
TN VISAS
• No prevailing wage issues • Can continue to renew as long as no strike or labor dispute NO BENCHING FOR EITHER H-1B OR TNs Whiteman Osterman & Hanna LLP
OVERVIEW: GREEN CARD PROCESS
Most Employment Based (EB) start here All Family Based (FB), some EB start here
PERM LABOR CERTIFICATION Form ETA 9089 VISA PETITION Form I-130 / 140 ADJUSTMENT OF STATUS Form I-485 GC ISSUED Form I-551 9+months 5-14 months 5 - 36+ months Filed w/ visa petition if visa number current CONSULAR PROCESSING Initiated when visa number current 5–12 mos . Whiteman Osterman & Hanna LLP
QUOTAS AND PRIORITY DATES
LIMITS ON NUMBER OF GREEN CARDS PER YEAR
• Each type of green card (preference category) have numerical limits: numbers vary by year and by usage - Approximately 140,000 EB-based GCs in all categories - Approximately 226,000 EB-based GCs in all categories • • Each country is also limited to a ceiling number of visas, regardless of demand When either preference group or country quotas are met, waiting lists build
PRIORITY DATE DETERMINES PLACE ON WAITING LIST
• When waiting lists build, cases are processed in priority date order • Priority date established at the first official filing date of the paperwork (USCIS, DOL)
GLOBAL VS. COUNTRY WAITING LISTS
• Country which hits country ceiling taken out of the worldwide visa pool and given its own separate pool of visas (approximately 7% of total available) • • Ensures even distribution of visas across all GC categories. Leads to longer waits in many categories.
The Visa Bulletin ( www.travel.state.gov
): priority dates for each month.
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PERM LABOR CERTIFICATION
MOST COMMON EB GREEN CARD PROCESS:
• Application by employer to USDOL to certify individual and position after statutorily mandated recruitment campaign • Approval followed by immigrant visa petition and, if priority date current, final application for Adjustment Status (Green Card) • Nearly all positions qualify, but substantial waiting periods for non professional positions/short or no waiting for positions with higher requirements (Master’s or Bachelor’s degree plus five years experience is EB-2) • Process requires significant employer involvement including payment of legal fees as of July 2007 Whiteman Osterman & Hanna LLP
PERM NEW LABOR CERTIFICATION
PROCEDURES/ADVERTISING:
• Define job and skills on DOL forms in compliance with DOL requirements • Obtain DOL prevailing wage determination • Advertise two Sundays in paper of general circulation • Professional positions: 3 additional recruitment steps (job fairs, web ads, etc.) • Interview and evaluate applicants; prepare recruitment report • Submit ETA 9089 to DOL with recruitment results • DOL reviews & approves – allegedly within 60-90 days/may be up to 9 mos.
• Possible audits in 50% of cases Whiteman Osterman & Hanna LLP
PERM IN THE NEW ECONOMY
STANDARD FOR PERM:
• No minimally qualified U.S. workers – not a most qualified worker standard (except for colleges/universities)
Example 1 – Cut back in hours
• PERM requires permanent and full-time position • Cut back may trigger denial at PERM or later stages of GC
Example 2 – Layoff or termination of other employees
• • May trigger audit, supervised recruitment or delays DOL inquiry based on available U.S. workers. Employer may need to explain.
- How foreign employee’s position is different - Efforts to hire back American workers Whiteman Osterman & Hanna LLP
OTHER EMPLOYMENT BASED GREEN CARD OPTIONS
• Extraordinary Ability Alien (EB-1) • Multinational Manager (EB-1) • Outstanding Researcher (EB-1) - Limitations if employed by government entity • National Interest Wavier (EB-2) Whiteman Osterman & Hanna LLP
EFFICIENT MANAGEMENT OF IMMIGRATION PROCESSES/IMMIGRATION LAWYERS
• • • • Designate one HR employee to be responsible for visa/immigration processes Develop clear guidelines for employees on timing, costs and requirements for green card and other visas Manage processes in groups for cost and time efficiencies Immigration attorney - Dual representation scenario/loyalty - Work with a single immigration lawyer or law firm - Critical in navigating complex and every changing immigration system Whiteman Osterman & Hanna LLP
IMMIGRATION OUTLOOK
• • • • New administration: lots of dialogue, but little perceptible difference Reform unlikely to occur before sustained improvement in economy Key Reform Point: Need overall increase in employment-based numbers for immigrants and nonimmigrants Immigration law is extremely complicated: consult with a qualified immigration lawyer on circumstances of your particular case Whiteman Osterman & Hanna LLP
RESOURCE SLIDE
• • • • General Immigration Information (Visas and Green Cards) www.uscis.gov
Information on Enforcement, Student Work Authorization and Student Visas www.ice.gov
Information on Border Crossing Issues (Valuable for TN Visas) www.cbp.gov
Information on U.S. Consulates, J-1 Visas and Related Issues www.travel.state.gov
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Additional information on immigration issues, as well as updates on new developments, can be found on our web site at www.woh.com
. Go to “Practice Groups” and select “Corporate and Professional Immigration”.
At the bottom of our practice description is a link to other information and articles.
Immigration Practice Group Whiteman Osterman & Hanna
One Commerce Plaza Albany, New York 12260 Tel: (518) 487-7600 Fax: (518) 487-7777 www.woh.com
Leslie K. L. Thiele
Seth R. Leech
Scott T. Decker
L.J. D’Arrigo
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.
© 2008 Seth R. Leech Whiteman Osterman & Hanna LLP