HOT TOPICS IN IMMIGRATION

Transcription

1 TUETH KEENEY COOPER MOHAN & JACKSTADT P.C. HOT TOPICS IN IMMIGRATION The Association of Corporate Counsel May 23, 2013 Melanie Gurley Keeney, Esq. Tueth, Keeney, Cooper, Mohan, & Jackstadt, P.C. 34 N. Meramec, Suite 600, St. Louis, MO Topics for Discussion New Form I-9 and Compliance Issues E-Verify H-1B and L Visa Issues Employment Based Green Cards DACA Proposed Legislation 1

2 Who are the Key Players? DHS U.S. Department of Homeland Security USCIS U.S. Citizenship and Immigration Services ICE Immigration and Customs Enforcement CBP U.S. Customs and Border Protection Key Agencies Department of Homeland Security U.S. Customs and Border Patrol (inspects people as they enter the United States). U.S. Citizenship and Immigration Services (benefits side of immigration). U.S. Immigration and Customs Enforcement (border patrol, worksite enforcement). Department of State U.S. Consulates (responsible for stamping visas in passports). Department of Labor In H-1B context, employers submit Labor Condition Applications. Handles the PERM process (one available employment based permanent residence option). 2

3 Immigration Basics - Terminology Visa: obtained at U.S. Consulate. Without a visa, most foreign nationals cannot enter the United States. Status: the type of category under which a foreign national is allowed to stay in the United States (i.e., B-1, H-1B, J-1, TN, L-1A, L-1B, F-1, LPR, etc.). I-94: card received by non-immigrants as they enter the United States. This card indicates status (i.e., F-1, H-1B, etc.). This card also lets you know how long the foreign national may remain in the United States. New procedures coming from CBP. Terminology Non-immigrant: foreign national who does not have permanent residence (i.e. does not have a green card). Immigrant: foreign national who has permanent residence. One can be a green card holder without having citizenship. Citizen: person who was born in the United States or who was naturalized as a citizen. 3

4 Compliance FORM I-9 EMPLOYMENT ELIGIBILITY VERIFICATION ICE 4

5 Worksite Enforcement What types of enforcement do we see? I-9 Audits Raids Informal visits I-9 Context H-1B Context What Employers Need to Know In 2012, ICE served 3,004 Notices of Inspection and 495 Final Orders, totaling almost $13 million in fines. ICE debarred 376 businesses and individuals. Of the individuals arrested, 240 were owners, managers, supervisors or HR staff. 5

6 Form I-9 Inspection Process Worksite Enforcement I-9s What are the consequences of I-9 violations? Civil Fines Technical Violations (sometimes can be fixed) Substantive Violations (often can t be fixed) Hiring Violations Debarment Criminal Penalties Felonies and Misdemeanors 6

7 Criminal Prosecution Felony and Misdemeanor PENALTIES Administrative Sanction Hiring Violations $375-$16,000 Debarment Prohibits Federal Contracts 1-3 years Imprisonment, Fines and Forfeitures Paperwork Violations $110-$1,100 Enacted by Executive Order on 02/13/ Penalties Atrium Companies - $2 million Advanced Containment Systems - $2 million Herbco - $1 million Executives of LTCI Ltd. - $223,000 University of California San Diego Medical Center - $115,000 7

8 Defenses What is the good faith defense to an I-9 violation? Policies, practices, record retention, etc. If applicable, how long do employers have to fix the errors? 10 days What is fixable? The Old Form I-9 8

9 The New Form I-9 Released March 8, Must start using new form no later than May 7, No previous editions accepted. 2 new optional fields in Section 1: employee s telephone number & address. Pre-population of Section 1 by Electronic I-9 Programs prohibited. 9

10 I-9 Employment Eligibility Form Employers must initiate process within three (3) business days after hire. Must review original documents brought by the employee Expired documents not allowed (1) List A document(s) or (2) List B and C documents Cannot instruct employee what documents to bring Cannot fill out I-9 before offer of employment made Hypothetical If Bob starts his first day of work on Monday, when do you have to complete the I-9? Monday? Tuesday? Wednesday? Thursday? Never? 10

11 I-9 Form Things to consider: Is Bob an independent contractor? Is Bob working outside the U.S.? Is Bob a seasonal employee? Is Bob a rehire? Is Bob just a regular employee starting his job? Is Bob going to work 3 days or less? When does Bob complete Section 1? Can you do the I-9 early? Post offer/acceptance? I-9 Document Retention Employer must maintain I-9 forms for: 3 years after the date of hire, or 1 year after the date employment ends WHICHEVER IS LATER!!! Paper versus Electronic I-9s 11

12 Employer Handbook Employer Handbook (Revised 04/30/13) Important that your I-9 Team has reviewed it Very informative What if? scenarios Some sample documents New guidance on dealing with foreign workers Successor Companies Compliance Issues Due diligence Blanket Re-verification What about H/L visa holders in the successor context? 12

13 E-Verify E-Verify Basics Works in conjunction with the I-9 process. Queries the Social Security and Department of Homeland Security (DHS) databases to determine the employment eligibility of a new hire. There are documentation retention requirements that must be followed. States that require E-Verify Federal Contractors 13

14 Does E-Verify Apply to You? Federal Obligations Executive Order and regulations for federal contractors State Obligations Many states (including Missouri) require employers to participate in E-Verify: Public entities, state contractors, and/or Private employers Missouri Law Public Employers RSMo (3) All public employers must enroll and actively participate in E-Verify beginning January 1, Public employers include every department, agency, or instrumentality of the State or political subdivision of the State. 14

15 Missouri State Contracts State Contracts RSMo (2) As a condition for the award of any contract [for services] or grant in excess of $5,000 by the State, or by any political subdivision of the State to a business entity, or for any business entity receiving a stateadministered or subsidized tax credit, tax abatement or loan from the State. E-Verify Memorandum of Understanding Obligations Who is in charge Procedures in place when E-Verifiers are gone? 15

16 Resources I-9 Handbook (M-274) Revised 04/30/ I-9 Central E-Verify H-1B & L VISA UPDATE 16

17 H-1B Visas Specialty Occupation Visas Eligibility Valid up to 6 years (unless extension available, due to green card application in process), plus recapture Can be ported Cap subject and cap exempt entities H-1B Cap General Information Each federal fiscal year (October 1 September 30) the cap is reset. 65,000 visas allowed for those holding bachelor s degrees 20,000 additional visas allowed for those holding U.S. obtained masters degrees. Both caps have been reached early for several years. Applications can be made on April 1 of each year this requires tremendous advance planning. 17

18 Cap Exempt Entities Must be Not-for-Profit entity that is: An institution of higher education or A not-for-profit entity that is affiliated with an institution of higher education or A not-for-profit research organization or A government research organization H-1B Visas April, 2013 Over 124,000 cases submitted in first 5 days. USCIS used a computergenerated random selection process ( lottery ) to select sufficient number of petitions to meet the cap. Premium processing practice modified Clock began 04/15/

19 H-1B Alternatives TN Visa - Mexican and Canadian citizens whose occupation is listed on Schedule 2 of NAFTA. E-3 Visa - Australian Citizens who will be employed in a specialty occupation. H-3 Visa -Trainee to receive training, other than graduate or medical education training, that is not available in the foreign national s home country. J-1 Visa - Non-immigrant visa category is for individuals approved to participate in work and study-based exchange visitor programs. Participants are integral to the success of the program. J-1 visas are not optimal because they are limited in duration, and a 2 year foreign residence requirement may apply before the individual can change status. 19

20 H-1B Alternatives (cont.) B-1 in Lieu of H-1B (Only for Global Companies) - Hold the equivalent of a U.S. bachelor's degree - Plan to perform H-1B-caliber work or training - Will be paid only by their foreign affiliated employer - The task can be accomplished in a short period of time EAD - If married to an L-1 visa holder, an individual is eligible for employment authorization. O-1 Extraordinary Ability or Achievement Visas (sciences, arts, education, business or athletics) H-1B1 for citizens of Singapore and Chile L-1A Visa Managerial and Executive Positions Valid up to 7 years Allows for EB-1 petition to adjust to a Green Card holder Spouse is eligible for work authorization 20

21 L-1B Visa Specialized Knowledge Employee Valid up to 5 years Requires a PERM to adjust to a Green Card holder Spouse is eligible for employment authorization Difficulty with L-1 Visas Denial rates of L-1B petitions Denial rates of L-1A petitions Requests for Evidence -- significant increase in RFEs for both L-1Bs and L-1As Awaiting promised guidance 21

22 Blanket L Benefits Speeds up the process of transferring employees from foreign affiliates Eliminates the need to file separate petitions with the USCIS for each transferred employee. Transferring employees may apply for an L-1 visa directly at a U.S. consulate or embassy. Eligibility Criteria Form I-94 Automation 4/30/13 CBP began implementation of Automated I-94 at Air & Sea Ports (Charlotte Douglas International Airport in North Carolina; Orlando International Airport in Florida; McCarran International Airport in Las Vegas; Chicago O Hare Airport; Miami International Airport and George Bush Intercontinental Airport in Houston). Implementation nationwide by the end of May 2013 to include air and sea ports of entry that support international arrivals. 22

23 Permanent Residence a/k/a The Green Card Employment Based Preferences EB-1 (workers of extraordinary ability, outstanding professors and researchers, multinational executives and managers) EB-2 (members of the professions who hold advanced degrees or the equivalent and workers with exceptional abilities in the sciences, art, business who will benefit the national economy) PERMs National Interest Waivers EB-3 (skilled workers, professionals, other workers) PERMs for individuals with Bachelor s degrees or other skilled workers Overview of Green Card Process Employment Based Immigrant Petitions PERM Process (EB-2 or EB-3 and note that Special Recruitment applies for faculty positions) Advertise position to determine if there are any minimally qualified U.S. workers. If none, file electronic application with Department of Labor. If approved, receive a Labor Certification from DOL which certifies there are no minimally qualified U.S. workers. National Interest Waivers (NIWs) I-140 Immigrant Visa Petition Filed with USCIS. I-485 Adjustment of Status or Consular Processing 23

24 Immigrant Visas Visa Availability Affects Timing of Green Card Issuance Currently various employment based preferences are experiencing significant backlogs. Backlogs can be related to nationality. June 2013 Visa Bulletin 24

25 DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) Eligibility criteria: DACA Under age 31 as of 06/15/2012; Came to US before 16 th birthday; Continuously resided in US since 06/15/2007 up to present time; Physically present in US on 06/15/2012 & at time of making request for consideration of deferred action by USCIS; Entered w/o inspection before 06/15/2012 or lawful immigration status expired as of 06/15/2012; Currently in school, has graduated or obtained a certificate of completion from high school, has obtained a GED certificate, or is an honorably discharged veteran of the US Coast Guard or Armed Forces; and Has not been convicted of a felony, significant misdemeanor, 3 or more other misdemeanors, and does not otherwise pose a threat to national security or public safety. 25

26 DACA Employment authorization document (EAD) issued by USCIS to DACA eligible recipients Some DACA cases recently transferred to local USCIS offices for interview (quality control & eligibility issues) Travel concerns PENDING LEGISLATION 26

27 PENDING LEGISLATION S.600 The H-1B and L-1A visa Reform Act of 2013 introduced by Senator Grassley (R-IA) and Senator Sherrod Brown (D-OH) on 03/18/2013 S.744 Border Security, Economic Opportunity, and Immigration Modernization Act introduced by the Senate Gang of Eight on 04/16/2013 Melanie Gurley Keeney, Esq. Tueth, Keeney, Cooper, Mohan & Jackstadt, P.C. Main: Fax: