HR & Recruiter Immigration Training

Transcription

1 HR & Recruiter Immigration Training Presented by Malcolm Goeschl & Randi Nagahori August 29, 2018

2 Talking Points 1. Key Immigration Concepts and Documents 2. Overview of Nonimmigrant Process 3. Key Nonimmigrant Visa Categories 4. FY2020 H-1B Cap Season 5. Pre-Hire Assessment Process 6. Current Trends in Immigration

3 How We Help in the Recruitment Process Help you compete for global talent Help onboard new candidates quickly Make recruiters jobs easier Help you understand all immigration-related costs and risks to assist the company in making good long-term hiring decisions

4 Key Immigration Concepts

5 Key Immigration Concepts Immigrant - A foreign national seeking to enter the United States to live permanently. Immigrant Intent - All foreign nationals are presumed in the law to have the intention of living here permanently. This is called immigrant intent. Nonimmigrant - A foreign national coming to the United States for a specific and temporary purpose. For most nonimmigrant categories, the foreign national must prove to the U.S. Dept. of State (DOS) and/or Dept. of Homeland Security (DHS) that he or she is coming only temporarily and does not have immigrant intent. Doctrine of Dual Intent - Allows some nonimmigrants (primarily H-1B and L-1 workers) to have a permanent (i.e. immigrant) intent to live in the United States.

6 Key Immigration Concepts Period of Authorized Stay - Time period granted by DHS to nonimmigrants during which they are allowed to stay lawfully in the United States. Granted upon entry to the United States and upon approval of extensions of stay. Lawful Permanent Resident (aka green card holder) - Foreign national granted permission to live permanently in the United States. Note: The foreign national must continue live in the United States permanently to maintain green card status.

7 Key Immigration Documents

8 Key Immigration Documents I-94 Admission Record Visa

9 Key Immigration Documents (cont.) Approval Notice With I-94 Without I-94

10 Key Immigration Documents (cont.) Receipt Notice Does NOT show proof of valid work authorization, except in cases of: H-1B portability Certain extensions Lost/stolen documents

11 Key Immigration Documents (cont.) Employment Authorization Document (EAD)

12 Key Immigration Documents (cont.) Permanent Resident Card ( Green Card )

13 Key Immigration Documents (cont.) I-20 Certificate of Eligibility (F-1 Students)

14 Nonimmigrant Process Overview

15 Main Government Agencies Involved in Nonimmigrant Visa Process President Department of Homeland Security Department of State Department of Labor Department of Justice United States Citizenship and Immigration Services Immigration and Customs Enforcement Customs and Border Protection Consular Affairs Employment and Training Administration Immigrant and Employee Rights Section Fraud Detection and National Security

16 Government Agencies Involved in Nonimmigrant Sponsorship Process Department of Homeland Security sub-agencies: United States Citizenship and Immigration Services (USCIS) Adjudicates petition-based nonimmigrant petitions Fraud Detection through random site visits (FDNS) United States Customs and Border Protection (CBP) Admits foreign nationals at the ports of entry Adjudicates certain nonimmigrant applications for Canadians United States Immigration and Customs Enforcement (ICE) Immigration-related workplace investigation and enforcement United States Department of State - Consular Services Issues nonimmigrant visas to foreign nationals who require a visa Adjudicates certain non-petition-based nonimmigrant categories United States Department of Labor - Employment and Training Admin. Certification of Labor Condition Applications (LCAs) for H-1B and some categories designed to protect workers Workplace enforcement and investigation

17 Nonimmigrant Overview Company files petition with the USCIS (not required for all classifications) Foreign national applies for visa at U.S. embassy or consulate abroad (not required for Canadians) Foreign national enters the U.S. and begins work

18 Key Nonimmigrant Categories: H-1B Workers in Specialty Occupations Available for workers in Specialty Occupations What is a Specialty Occupation? Professional positions requiring at least a Bachelor s degree in a specific field (e.g. engineer, lawyer, medical doctor) Important features: 6-year maximum time limit (except under certain limited circumstances where the green card process is started prior to 6-year limit) Dual intent, i.e. may have intent to live permanently in the United States Subject to annual cap of 65,000, with an additional 20,000 allocated for graduates of U.S. universities with a Master s degree or higher Subject to Prevailing Wage and other Labor Condition Application (LCA) requirements designed to protect U.S. workers

19 Key Nonimmigrant Categories: L-1 Multinational Transferees Work authorization based on employee s previous experience with company s affiliate, parent or subsidiary abroad Employee must be employed for at least one uninterrupted year in the three years preceding transfer to the United States in a managerial, executive or specialized knowledge capacity L-1A is for Managers and Executives, and L-1B is for Specialized Knowledge Workers Important features: No annual cap Dual intent applies Spousal work authorization available 7-year max for L-1A, and 5-year max for L-1B

20 Key Nonimmigrant Categories: TN NAFTA Professionals Provides work authorization for nationals of Canada and Mexico for certain narrowly defined professions, which include: actuaries, accountants, lawyers, computer systems analysts, and engineers. Does not include: marketing professionals, regular managers, executives and many other professions Important features: Dual intent does not apply Limited to 3 years at a time No per se max time limit Does not require petition with USCIS Canadians may apply directly at border or major airport Mexicans apply for visa at U.S. embassy or consulate

21 Key Nonimmigrant Categories: E-3 and H-1B1 workers Based on treaties with Australia (E-3), and Chile and Singapore (H-1B1) Like H-1Bs, reserved for workers in Specialty Occupations (i.e. occupations requiring at least a Bachelor s degree in a specific field) Important differences: Dual intent does not apply No max time limit Issued for 18 months (H-1B1s) or 24 months (E-3s) ata time Subject to separate quotas (which have never been met) Do not require petition with USCIS in advance; apply directly at U.S. embassy or consulate abroad Spouses of E-3s may obtain work authorization

22 Treaty-Based Classifications: SMACC S M A C C Singapore (H-1B1) Mexico (TN) Australia (E-3) Canada (TN) Chile (H-1B1)

23 Key Nonimmigrant Categories: O-1 Aliens with Extraordinary Ability Available to foreign nationals who are at the very top of their field of endeavor: Must document accomplishments through awards, publications, press, high salary or other compensation, and recommendation letters from others in the field Suitable for top level executives, key engineers or scientists Defacto dual intent applies Granted for an initial 3 year period and 1 year extensions thereafter with no maximum time limit Downside: Difficult standard to meet. This category is generally only available to a select few No spousal work authorization

24 Key Nonimmigrant Categories: F-1 Students Granted up to 12 months of open-market work authorization Optional Practical Training (OPT): Usually after graduation Curricular Practical Training (CPT): While in school Must be related to field of study OPT Extensions STEM Extensions: Graduates of STEM fields may get additional 24 months of OPT if the employer is enrolled in E-Verify Must complete a training plan and submit to Designated School Official (DSO) Site visits to verify whether employers are meeting program requirements Employer reporting requirements: employer must agree to report the termination or departure of an employee working pursuant to a STEM extension within 5 days of the employee leaving Cap-Gap Extensions Granted where student has H-1B petition cap petition accepted for processing before end of first 12 months of OPT

25 Nonimmigrant Maintenance of Status Foreign nationals must comply with the specific terms of their status: Nonimmigrant workers (H-1B, L-1, TN, etc.) must be working at the sponsoring employer at all times F-1 students must be enrolled or working pursuant to approved Practical Training All nonimmigrants and green card holders must report change of address to USCIS within 10 days using Form AR-11 Must not overstay the expiration date on I-94 record: Bar from reentering U.S. for 3 years if overstay of 180 days or more Bar from reentering U.S. for 10 years if overstay of 365 days or more

26 FY2020 H-1B Cap Season

27 FY2020 H-1B Cap Season H-1B cap filing season for FY2019 started on April 2, 2018, and closed within 5 business days on April 6, 2018 The USCIS conducted a lottery for new H-1B petitions filed during that 5 day season Based on the past five past cap lottery seasons, we expect the following for the FY2020 lottery, unless Congress changes the law (or the economy tanks): Approximately 30% chance of success for candidates without U.S. advanced degree 60%-70% chance of success for candidates with a U.S. advanced degree Note: Persons who are currently in, or have previously held, H-1B status are usually, but not always, exempt from the cap. H-1B petitions accepted in FY2020 cap lottery and approved will be effective on October 1, 2019.

28 FY2019 H-1B Cap Season

29 Planning for FY2020 H-1B Cap Season Don t get blind-sided by a springing cap issue: Someone with unrestricted work authorization now may nonetheless require H-1B sponsorship later, and may have a low chance of success in lottery, and/or be ineligible for H-1B status based on the position We encourage recruiters to use our pre-hire assessment process for all candidates indicating that he/she will require immigration sponsorship, even if they have current work authorization

30 Planning for FY2020 H-1B Cap Season: H-1B Cap and F-1 OPT Issues F-1 OPT work authorization starts after graduation and lasts for one year (Note: STEM / E-Verify exception providing additional 24 months) H-1B cap petition has to be filed in April, but students usually don t graduate until May or June, and are generally not eligible for H-1B status until they have graduated with at least a Bachelor s degree Consequently, Bachelor s graduates may not be eligible to file for the H-1B cap until Spring of the following year, and even if accepted in lottery, there will be gap between OPT expiration (around June) and effective date of new H-1B (October 1st) Regulations allow for Cap-Gap extension to cover the gap in this situation if: Person is selected in the lottery, AND F-1 OPT expires after April 1, 2019

31 Pre-Hire Assessment Process

32 Asking About Immigration: What to Do and What Not to Do Asking the wrong question of job applicants may result in a discrimination claims and penalties imposed by the Department of Justice We recommend asking the following question of all candidates to determine whether sponsorship is required: Do you now, or will you in the future, require immigration sponsorship to work at the company? This should be asked in the same manner of all job applicants at the same step in the recruitment process If candidate answers yes, we recommend having him/her complete a pre-hire assessment questionnaire (next slide) You should never ask, Are you a U.S. citizen? Do not ask immigration-related questions unless candidate indicates he/she needs immigration sponsorship.

33 Pre-Hire Immigration Assessment Process Job applicant indicates that he/she will require immigration sponsorship now or in the future in order to work at the company Recruiter has the applicant complete our Pre-Hire Immigration Assessment Questionnaire. Company sends Goeschl Law the completed questionnaire, resume, and job requisition. We provide an assessment of sponsorship feasibility to recruiter with 24 hrs., which includes: anticipated time, estimated costs and risk factors

34 Pre-Hire Immigration Questionnaire

35 Current Trends in Immigration

36 Current Trends in Immigration Suspension and expansion of premium processing Suspension extended to February 19, 2019 Expanded starting September 11, 2018 to include change of employer ( transfer petitions ) Notice to appear and F-1 and J-1 unlawful presence memo Suspension of H-4 work authorization Dramatic increase in H-1B RFEs and denials nationwide for H-1Bs and other employment-based petitions Q2 FY2016 Denial rate was 23.4% Q2 FY2017 Denial rate was 18% Q2 FY2018 Denial rate was 36.35% Request for Evidence (RFE) rate for Q4 FY2017 was 67% Double in worksite investigations and almost double in I-9 audits

37 Illustrative Recruitment Examples

38 Illustrative Recruitment Examples Jack is in F-1 status and has an OPT Employment Authorization Document (EAD) valid until June He graduated with a Master s degree in Computer Science in June He is being considered for a position as a Software Engineer. When can he start and what issues do you foresee? What additional information do you need to answer this question? Renee graduated with a Bachelor s degree in 19 th Century Russian Literature in June 2018, and has been granted OPT until June 15, She is being considered for a position writing content and marketing. She is leaning toward accepting a position in her native Chile because she has heard how difficult the U.S. immigration process is. When can she start and what issues do you foresee? What additional information do you need to answer this question?

39 Illustrative Recruitment Examples Jon graduated with a Master s degree in Computer Animation on March 15, 2018 from the Academy of Art in San Francisco. He is being considered for a position as a User Interface Designer. He says he has work authorization now, but will need H-1B sponsorship next year. When can he start, and what issues do you foresee? What additional information do you need to answer this question? Piotr is a math wiz who won first prize at the age of 12 at the international informatics Olympiad. He is now 17 and wants to drop out of high school in his native Russia to join the company. When can he start and what issues do you foresee? What additional information do you need to answer this question?

40 Illustrative Recruitment Examples R-Star, a North Korean citizen, has a PhD in Electrical Engineering. He is being considered for a software engineering role. He says that he has been approved for an H-1B, but also mentions that he was laid off 3 months ago. When can he start, and what issues do you foresee? What additional information do you need toanswer this question?

41 Thank you