Immigration Law

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					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.

				
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