Immigration Law Hiring and Firing Foreign Workers Willard Krasnow, Esq. Hinckley, Allen & Snyder LLP General Overview 1. Two main categories Under the Immigration and Nationality Act - immigrant preferences (family and employment) and nonimmigrant classifications 2. Overall annual number of immigrants admitted in the family and employment categories and annual country quotas within each preference (except immediate relative preference). General Overview (continued) 3. Some non-immigrant classifications contain numerical caps (i.e., H-1B1 Visas). 4. There is an alphabet list of non-immigrant categories. The E, H, L, O and P categories require employer sponsorship. Other categories permit employment with specific INS employment authorization (e.g., F-1 and M-1 Students). The H-1B, H- 1C and H-2B categories have annual quota limitations and most of the categories contain time limitations. General Overview (continued 5. There is an alphabet list of non- immigrant categories. The E, H, L, O and P categories require employer sponsorship. Other categories permit employment with specific INS employment authorization (e.g., F-1 and M-1 Students). The H-1B, H-1C and H-2B categories have annual quota limitations and most of the categories contain time limitations. Impact of September 11th Terrorist Attacks 1. Immigrant and non-immigrant visa procedures (minimal applicant investigation) remain the same according to State Department though further investigation of applicants (particularly non-immigrants) and delays are likely to occur. Impact of September 11th Terrorist Attacks (continued) 2. Further INS scrutiny at borders and airports and ports of entry is anticipated, even for permanent residents, and particularly for suspect categories (students; exchange visitors; tourist/business visitors) and countries. Good documentation is necessary. Impact of September 11th Terrorist Attacks (continued) 3. For planning purposes, employees should anticipate that there will be delays in processing work-related petitions with INS. Use of INS’ new premium processing service should be considered. Impact of September 11th Terrorist Attacks (continued) 4. Statutory and regulatory changes expected to make it easier to detain and to deport non-citizens. 5. To date, no indication that substantive employment- related provisions of the law will change Hiring Foreign Workers: Immigration Reform and Control Act (“IRCA”) Obligations and Maneuvering Through The Immigration Law Minefields IRCA Obligations and Compliance 1. IRCA prohibits companies from knowingly employing, or continuing to employ, non- citizens who do not have authorization to be employed by the particular employer, IRCA Obligations and Compliance (continued) 2. Civil penalties for violation of above, e.g., not less than $250 and not more than $2000 for each unauthorized alien for a first offence (and up to $10,000 where there have been prior offenses) and for repeated violations, criminal penalties (the employer can be fined up to $3,000 for each unauthorized alien employed, be imprisoned for up to six months or both). IRCA Obligations and Compliance (continued) 3. An employer has a duty to verify the identity and authorization to be employed of all applicants - I-9 procedure. 4. Civil penalties for I-9 violations (not less than $100 and not more than $1,000 with respect to each individual as to whom the violation occurred). The above penalties have been increased by 10% for violations occurring on or after September 29, 1999 IRCA Obligations and Compliance (continued) 5. Compliance with I-9 procedures does not excuse knowingly hiring or continuing to employ an unauthorized alien. 6. A new I-9 and list of acceptable I-9 documents are long overdue (September 30, 1997) and are anticipated soon. Current procedures and standards can be followed in the interim. Hiring of Foreign Workers 1. Permanent resident status grants unrestricted rights to employment and self-employment in the United States. 2. Generally, employers must petition INS to employ non-immigrants and employment is valid only for that employer. Hiring of Foreign Workers (continued) 3. Time pressures to employ foreign workers make use of permanent resident status option generally not feasible. Hiring of Foreign Workers (continued) 4. The following categories require the filing of a petition and supporting documentation by the sponsoring employer with the INS. (In addition to these categories, individuals, without an employer petition, may obtain employment authorization from the INS for limited periods as follows: e.g., as students (practical training before or after graduation); and exchange visitors). Hiring of Foreign Workers (continued) a. E-Treaty Traders And Investors • Allows entry of individuals from a country that has a treaty of commerce and navigation or investment with the U.S. to engage in trade between the two countries or to invest in the U.S. • Initial period of entry up to one year; extensions up to two years; no maximum period of stay. Hiring of Foreign Workers (continued) b. H-1B1 - Specialty Occupations • Applies where position requires Bachelor’s Degree in a specific specialty and individual has such degree. • Initial approval up to three years subject to a maximum stay generally of six years. Hiring of Foreign Workers (continued) • If employee is dismissed before authorized period expires, employer must pay reasonable costs of return trip transportation for the H-1B1 who intends to return home. Hiring of Foreign Workers (continued) • The following special items apply to the H-lB1 category: i. Labor Condition Application (“LCA”) certified by the U.S. Department of Labor (Employer must make attestations, particularly as to payment of prevailing wage.) ii. 195,000 annual visa limit for fiscal years 2001-2003. Hiring of Foreign Workers (continued) i. A $1,000 special charge in addition to the customary filing fee of $110 for each petition. ii. Special rules apply to H-1B1 "dependent employees". iii.New portability rules allow H- 1B1 employees to begin work with new employer on filing of petition. Hiring of Foreign Workers (continued) c. H-2B - Temporary Worker Performing Services Unavailable in U.S. • A labor certification from U.S. Department of Labor (after employer advertising) is required. • Job must be temporary • Initial period of employment is one year with two possible one year extensions Hiring of Foreign Workers (continued) d. H-3 - Trainee Category • Allows employers to hire individuals for the purpose of training them for subsequent assignment abroad (maximum period 24 months) • No extensions beyond two years or changes to other categories are permissible Hiring of Foreign Workers (continued) • No productive employment except incidental to training. • Cannot be hired to do work that otherwise would be performed by a U.S. worker. • The training cannot be available in the foreign worker’s country. Hiring of Foreign Workers (continued) f. O Category • Available to individuals of extraordinary ability in various fields, including the sciences, business and the arts. • Initial approval up to three years. • No maximum period of stay. Hiring of Foreign Workers (continued) • Stringent qualification requirements • Return transportation obligations apply to this category too. • A “P” category covers entertainers and athletes who cannot meet the O standards. Hiring of Foreign Workers (continued) g. North American Free Trade Agreement (NAFTA) • NAFTA facilitates the processing of L petitions for Canadians at border crossings or at certain Canadian airports. • The TN category allows employment in specified occupations for an initial period of one year (with no maximum period of entry). Eligible occupations include engineer, scientist, computer systems analyst, economist, accountant, lawyer and management consultant. Hiring of Foreign Workers (continued) • For the Canadian citizen, the TN category is obtained without the need for the filing of any petition with INS, by submitting an application at a U.S. border crossing or an INS location at a Canadian airport. The application typically is adjudicated while the individual waits. Hiring of Foreign Workers (continued) • Mexican citizens seeking the TN category must file a petition with INS (the standard form I-129 used for hiring non-immigrant workers), include a labor condition application certified by the Department of Labor as required for the H-1B1 category, and are subject to an annual cap of 5500 visas. Hiring of Foreign Workers (continued) Employment-Based Preferences The following are the preferences to obtain permanent resident status (or immigrant visas abroad). Hiring of Foreign Workers (continued) a. First Category-Priority Workers Three different types of aliens qualify as Priority Workers: i. Aliens with “extraordinary ability” in the arts, sciences, education, business or athletics ii. Outstanding professors and researchers iii. Multinational executives and managers Hiring of Foreign Workers (continued) A labor certification of unavailability of U.S. workers from the U.S. Department of Labor is not required for this category Hiring of Foreign Workers (continued) b. Second Category – Members of the Professions Holding Advanced Degrees or Aliens of Exceptional Ability Labor certification will be required for qualified aliens in this category except where it is in the national interest to grant an exemption. Hiring of Foreign Workers (continued) c. Third Category – Skilled Workers, Professionals and Other Workers Labor certification is required for this category. Only 25% of the visas for this category apply to Other (unskilled) Workers leading to delays in availability of visas Hiring of Foreign Workers (continued) d. Fourth Category – Certain Special Immigrants Applies principally to religious workers. Hiring of Foreign Workers (continued) e. Fifth Category – Employment Creation Applicable to individuals who invest in a new commercial enterprise ($1 million generally but this amount is subject to fluctuation based on the unemployment level where the new business will be located) which will create permanent employment for ten or more U.S. workers (other than the alien and the alien’s spouse, sons or daughters). Labor Certification Process a. Except where labor certification is not required or waived, no employment-based immigrant preference may be filed unless accompanied by a certification from the U.S. Department of Labor that there are no qualified U.S. workers (that is workers who meet the minimum job requirements) available for the position for which the employer seeks to employ the non-citizen. Labor Certification Process (continued) b. Takes place under the supervision of the State Employment Security Agencies. Decisions made by Regional Certifying Officer of the U.S. Department of Labor. c. Prevailing wage must be paid. Labor Certification Process (continued) d. Recruitment to see if U.S. workers are available (ads, internal posting, job bank listing) occurs under the auspice of State Employment Security Agencies. e. A reduction in recruitment option is available where unsuccessful recruitment has occurred during past six months. Beware of Misuse of The B-1 Visa A. The B-1 Visa (and visa waiver program ) allows entry for business purposes on behalf of a foreign entity in furtherance of international trade or commerce. B. Distinction between B-1 work, and US domestic work where a work visa must be obtained by the U.S. employer. Beware of Misuse of The B-1 Visa (continued) C. Improper use of B-1 visa – potential liability to the employer and to the individual. D. The following general guidelines apply to B-1 Visitors: a) Appropriate for individuals who have a residence outside of the United States that they have no intention of abandoning and who are coming to the United States on behalf of a foreign company in connection with international trade or commerce. Beware of Misuse of The B-1 Visa (continued) b) Intention must be to enter the United States only for this temporary business purpose. c) The business purpose generally needs to have an international connection. d) Acceptable activities are: 1. Commercial transactions – negotiating contracts, consulting with clients or business associates. Beware of Misuse of The B-1 Visa (continued) 2. Participation in scientific, educational, professional, religious or business conventions. 3. Professional athletes such as golfers and race drivers who receive no salary, only tournament money. 4. Member of the board of directors of a U.S. corporation. 5. Foreign corporate personnel coming to set up a U.S. subsidiary. Beware of Misuse of The B-1 Visa (continued) 6. Installation of foreign made equipment pursuant to a contract sale, except for building or construction work. 7. Attending an executive seminar. Beware of Misuse of The B-1 Visa (continued) f) In addition, must be paid their salaries from the foreign company, not from a United States source. Expenses may be paid by a United States source. g) Three months with some flexibility is a good guideline for entry as a B-1. h) Supporting documentation for visa or entry necessary. The American Competitiveness In the Twenty-First Century Act (“Act”) A. Effective October 17, 2000, the Act increases the number of H- 1B visas to 195,000 for fiscal years 2001-2003 and more. B. Changes will encourage portability of H-1Bs and applicants for adjustment to permanent resident status. The American Competitiveness In the Twenty-First Century Act (“Act”) (continued) C. Separate law raised the H-1B education and training fee to $1,000 for each petition with limited exceptions. D. Key changes made by the Act are: • Portability of the H-1B Status: Eligible H-1B non-immigrants now may change jobs upon the filing of a new petition by the new employer. The American Competitiveness In the Twenty-First Century Act (“Act”) (continued) • Sixth-Year Extension for H-1Bs: Annual extensions available where H-1B1 has filed a preference petition and one year has elapsed since the filing of the petition or the labor certification application. The American Competitiveness In the Twenty-First Century Act (“Act”) (continued) • Per Country Limits: An individual who is unable to apply for permanent resident status (“green card”) because of a per- country limit (quota backup) able to extend his or her nonimmigrant status until application for a green card is filed and decided. The American Competitiveness In the Twenty-First Century Act (“Act”) (continued) • Portability of I-140s and the Department of Labor Certifications (that U.S. workers, are unavailable, normally the first step in the green card process): Individuals, who have filed for a greed card and whose cases have been pending for 180 days or more can change jobs or employers so long as the new job is in “the same or a similar occupational classification” as the job in the pending filings. Termination of Foreign Workers A. Employers, intentionally or unintentionally, may give contractual rights to foreign workers that alter their “at-will” status. Foreign workers can have contractual rights like U.S. workers. These may limit an employer’s right to terminate the employment of the worker or require that a certain procedure be followed prior to termination. Termination of Foreign Workers (continued) B. There are no notification requirements to INS with respect to permanent resident aliens. C. As to employees in non-immigrant categories, generally there is a specific duty to notify INS when the employment terminates (e.g. H-1B1s, L-1s) and notification is advisable in any event as to all non-immigrants in today’s political climate. Termination of Foreign Workers (continued) D. Employers of H-1B1s and O-1s also need to fulfill their obligation to offer return trip transportation to the worker. E. A non-immigrant’s status in employment-related categories terminates with employment termination F. Employers can consider termination arrangements that may allow foreign workers time to find new employer sponsors and will meet INS’ evolving standards.