Immigration 101. Tuesday, March 17, 2015

Transcription

1 Immigration 101 Tuesday, March 17, 2015

2 Speakers Jenifer M. Brown, Partner Ice Miller Indianapolis, IN Leigh Cole, Shareholder and Director Dinse, Knapp & McAndrew Burlington, VT 2

3 International Students and Scholars Compliance (F-1, J-1) 3

4 What to Know: Compliance for F-1 International Students and J-1 Exchange Visitors Extensive compliance requirements. Programs are administered in various campus offices international education, enrollment management, registrar, dean depending on campus structure. Staff responsible for program administration interact directly with government regulators and enforcement personnel, and have enforcement duties delegated from DHS. 4

5 F-1 Status for International Students SEVP approves schools to sponsor international students in F-1 status Undergraduate and graduate students, and elementary and secondary school students Must be enrolled in a full course of study F-1 status can continue if student maintains a full course of study at an authorized school 5

6 J-1 Compliance for Exchange Visitors J-1 sponsoring organizations are designated by the State Department for certain J-1 categories Colleges and universities Nonprofit program sponsors For-profit program sponsors Direct sponsors or third party sponsors 6

7 J-1 Compliance for Exchange Visitors Categories common in higher education: Student Professor Research scholar; short-term scholar Specialist Medical trainee J-1 may be authorized for up to a maximum period of time, depending on the J-1 category 7

8 212(e) Two-year Home Residency Requirement 212(e) two-year home residency requirement may be triggered by government funding or the Exchange Visitor Skill List, which varies by country of citizenship; all foreign physicians in J- 1 status for training (medical residents and fellows) are subject to 212(e). If subject to 212(e), J-1 status holder can t change status for employment in the U.S. (H-1B, E-3, L-1, TN) or become permanent resident, even through marriage to a U.S. citizen. 8

9 212(e) Two-year Home Residency Requirement 212(e) waivers are available in some cases (no objection waiver, interested U.S. government agency waiver, extreme hardship to a U.S. citizen family member). Fulbright Scholars are subject to 212(e) and usually can t get 212(e) waivers. 9

10 ISS Compliance Each F-1 sponsoring institutions must appoint at least one official responsible for program management and compliance: F-1: Primary Designated School Official (PDSO), Designated School Official (DSO) J-1: Responsible Officer (RO), Alternate Responsible Officer (ARO) 10

11 ISS Compliance The sponsoring institution s DSOs and ROs work in SEVIS to document the immigration status of students and scholars and generate status documents Form I-20 for F-1 Form DS-2019 for J-1 11

12 Documentation for Status and Travel State Department issues F-1 and J-1 visas at U.S. consular posts, based on I-20s and DS- 2019s issued by F-1 and J-1 sponsoring institutions. CBP at U.S. ports of entry admits travelers based on I-20/DS-2019 and visa if required. USCIS approves change of status for F-1 or J-1 status holders and work authorization for students. 12

13 Monitoring and Enforcing Status through SEVIS DSOs and ROs record status and violations of status in SEVIS. SEVIS is accessed by ICE, USCIS, CBP and consular posts. If a student or scholar violates status, or institution is noncompliant, ICE investigates. 13

14 Employment for International Students and Scholars J-1 Exchange Visitors may work full time, or engage in a mix of work and academic activity. F-1 International Students have limited opportunities to work: On campus, up to 20 hours per week during academic terms, full-time during breaks Off campus, for optional practical training (OPT) or curricular practical training (CPT) 14

15 OPT after Completing a Degree Program Post-completion OPT, for up to 12 months; STEM extension for up to 29 months total. Executive action on immigration (November 2014) announced an expansion of OPT, details to be announced later in

16 Employment for F-1 International Students, cont. STEM extension of OPT is only for STEM graduates to work at E-Verify employers. E-Verify is a program of USCIS to confirm employment authorization of a participating employer s work force. Federal contractors must enroll in E-Verify; for others enrollment is optional. DSO must confirm STEM field and E-Verify enrollment to authorize extension of OPT. 16

17 Employment for F-1 International Students, cont. CPT and OPT require approval of the DSO; OPT also requires employment authorization document (EAD) from USCIS. DSO may authorize employment for some other situations such as extreme financial hardship. Employment outside lawful parameters is a violation of F-1 status. 17

18 Impact of Status Violations Reported in SEVIS DSO and RO must report status violations in SEVIS, which may terminate the SEVIS record. Termination of the SEVIS record ends the person s lawful status in the United States. Some SEVIS updates by the DSO and RO are mandatory, some involve discretion. 18

19 Recap of Government Agencies Involved with International Students and Scholars U.S. Department of Homeland Security (DHS) U.S. Citizenship and Immigration Services (USCIS), within DHS Customs and Border Protection (CBP) and U.S. ports of entry, within DH Immigration and Customs Enforcement (ICE) within DHS o Student and Exchange Visitor Program (SEVP) within ICE 19

20 Recap of Government Agencies Involved with International Students and Scholars U.S. Department of State (State Department), U.S. consular posts abroad, within State Department Office of J-1 Designation, with State Department J-1 Waiver Review Division, within State Department DSOs and ROs work directly with these agencies on an ongoing basis. 20

21 What to Do: Support Compliance with F-1 and J-1 Regulations Review your campus policies and practices to ensure effective communication channels are in place regarding F-1 international students (full course of study and employment). Maintain well-trained and resourced DSO and RO staff with excellent administrative systems and professional judgment. 21

22 What to Do: Support Compliance with F-1 and J-1 Regulations Access to legal support for DSOs and ROs is critical for institutional compliance. The other primary resource for guidance is NAFSA: Association of International Educators, so NAFSA membership and subscription to the NAFSA Advisor s Manual is critical. 22

23 I-9 Best Practices 23

24 I-9 Compliance: Three Basic Obligations Employer must verify employment eligibility of every person hired after November 6, 1986, whether U.S. citizen or foreign national. Employer must not hire or continue to employ an individual if employer has knowledge that the individual is not authorized to work. Employer must not discriminate on basis of citizenship or national origin, or commit "document abuse" by requiring more or different documents in a way that discriminates. 24

25 Section 1 Employee Information 25

26 Section 2 Document Responding Area 26

27 Section 2 Certification & Employer's Information 27

28 Section 2 Certification I attest, under penalty of perjury, that 1) I have examined the document(s) presented by the above-named employee; 2) The above-listed document(s) appear to be genuine and to relate to the employee named; and 3) To the best of my knowledge the employee is authorized to work in the United States. The employee's first day of employment (mm/dd/yyyy): (see instructions for exemptions) 28

29 Should the Employer Keep Copies of I-9 Documents Presented? Not legally obligated Shows bona fide attempt to comply even if I-9 form itself is incomplete 29

30 Should the Employer Keep Copies of I-9 Documents Separate from Personnel Files? 30

31 Reverification Requirements For U.S. citizens or non-citizen national, never For aliens authorized to work until date specific, always For lawful permanent residents, usually not 31

32 Re-hires If employee is re-hired within three years of initial completion of Form I-9 and employee remains eligible to work, no new I- 9 is required unless form has been updated. 32

33 Retention Requirements I-9 File must be retained for all current employees For terminated employees, I-9 file must be retained for three years from date of hire or one year from termination date, whichever is LATER 33

34 Storage Best Practices Retain I-9s for all current employees in alpha order. Retain I-9s for all current employees subject to reverification by date of reverification. Retain I-9s for all terminated employees by date of destruction. 34

35 Missing or Incomplete I-9s If missing, complete a new I-9 with current date, adding: "New verification per internal audit" If incomplete, correct with proper information and date and initial each change 35

36 Temporary Nonimmigrant Status to Onboard New Employees 36

37 What to Know Temporary Nonimmigrant Status Categories H-1B, TN, F-1, J-1 E-3, O-1 For a period of time or renewable periodically Tied to employer-sponsor, must continue working to maintain status 37

38 H-1B Status for Specialty Occupation Workers Temporary status for up to six years (may be able to extend past seven years based on a permanent residency application process). Position must qualify as a specialty occupation, require specific vocational preparation of at least a bachelor s degree or a combination of education and experience equivalent to at least a bachelor s degree. I-129 petition to USCIS for approval, then apply for a visa at a consular post if needed. 38

39 H-IB Requirements Approval specific to the employer, job, location Labor condition approval required from U.S. Department of Labor Prevailing wage requirement Actual wage requirement Posting at the worksite Public access file Labor condition attestations 39

40 Annual H-1B Cap The annual H-1B cap is a real problem for most employers, but not colleges and universities. Exempt from the H-1B cap: Colleges and universities; Nonprofits affiliated with a college or university; Nonprofit research organizations; Government research organizations. 40

41 Employer Responsibilities Campus policies vary regarding eligibility for H-1B sponsorship and application process (in-house or outside counsel). The employer must pay for the costs of the H- 1B application process, to maintain wage compliance. H-1B petition is the employer s petition and all compliance obligations are on the employer. 41

42 Country-Specific Status Categories E-3 for Australians Similar to H-1B, but only for citizens of Australia E-3 cap has never been exhausted H-1B-1, Free Trade visas for Chile and Singapore Similar to H-1B, but only for citizens of Chile and Singapore TN under NAFTA - Canada and Mexico 42

43 E-3 and H-1B-1, Free Trade Visas for Australia, Chile, Singapore Renewable indefinitely in two-year increments. Apply directly at consular post (no advance approval by USCIS). E-3 spouses are eligible for employment authorization. 43

44 TN Status under NAFTA North American Free Trade Agreement - United States, Canada, Mexico. TN status for certain professions listed in NAFTA, ment/nafta.html. Requires job offer from a U.S. employer in an eligible occupation and credentials for the occupation. No special wage requirements, no labor condition application. 44

45 TN Application Process No I-129 petition required, no labor condition application required. No USCIS approval required. Citizens of Canada can apply at a U.S. port of entry without USCIS approval in advance. Citizens of Mexico can apply at a U.S. consular post. 45

46 O-1 Status for Individuals with Extraordinary Ability in their Field Requires extensive documentation that the beneficiary is one of small percentage at the top of the field. Requires a U.S. employer or agent as sponsor. No labor condition or prevailing wage requirements. I-129 Petition filed with USCIS, then apply for visa at a U.S. consular post abroad if needed. 46

47 Honoraria Rule Visitors in B-1/B-2 or Visa Waiver (ESTA) status may accept honoraria and incidental expenses. For usual academic activity or activities. For up to nine days at each of up to five institutions within a six-month period. 8 U.S.C. 1182(q), Immigration and Nationality Act (INA) 212(q). 47

48 What to Do: Nonimmigrant Visa Compliance Review your campus policies for awareness. Do the responsible staff know: How and when to rely on the honoraria rule? H-1B cap exemption is available? Compliance obligations are on the employer, not the employee? The employer should select and supervise its immigration counsel, not the employee? The employer is required to pay the costs of H-1B/H- 1B-1/E-3? 48

49 What to Do: Compliance Review, cont d Review campus practices, is the institution in compliance? Does the human resources department know about status categories that may help with hard-to-fill positions, for targeted recruiting? (TN, E-3, H-1B-1/Free Trade Visas) 49

50 Permanent Residency Sponsorship for Faculty and Staff 50

51 Seven Ways to a Green Card 1. Labor Certification 2. Labor Certification exempt professionals 3. Investment 4. Diversity lottery 5. Family-based relationship 6. Asylum 7. Cancellation of removal proceeding 51

52 PERM Special Handling Burden of proof File ETA 9089 within 18 months of date of selection National print journal ad Internal job posting Other evidence of competitive recruitment and selection Recruitment report 52

53 Mandatory recruitment steps: Job Order: PERM Basic Recruitment o Placed with the state workforce agency Two print advertisements: o Two different Sundays in a newspaper of general circulation in the area of employment. Professional journal may be used in lieu of one of the Sunday ads IF advanced degree and experience is required 53

54 PERM Basic Recruitment Internal notice: o Written notice must be posted internally for 10 consecutive business days and through all inhouse electronic media if normally utilized Additional recruitment steps (choose from three of the following): Job fair Company website 54

55 PERM Basic Recruitment Cont d Job search website (note: may be used in conjunction with required newspaper advertising referenced above) On-campus recruiting Advertisement with trade or professional organizations Private employment firm Employee referral program with incentives 55

56 Cont d PERM Basic Recruitment Campus placement office, if no professional experience is required Local and ethnic newspaper, if appropriate to the job Radio and television advertisement 56

57 I-140 Immigrant Petition Based on Labor Certification Permanent job offer (tenure) Employer's ability to pay Employee's qualifications (foreign degrees and employment verification) PERM Labor Certification 57

58 I-140 Immigrant Petition (Labor Cert Exempt) EB-1 eligibility (priority workers) Multinational manager or executive Outstanding researcher or professor Extraordinary ability 58

59 I-485 Application to Register Permanent Residence Fingerprints Medical exam Valid immigration status Current priority date 59

60 Preference Classifications 60

61 March 2015 Visa Bulletin 61

62 Who Should Drive the Immigration Process? Legal requirements Consistency in making disclosures to the government Maintenance of status issues Termination of employment 62

63 For More Information Please contact our speakers for more information on these and other immigration-related issues Jenifer M. Brown Ice Miller Indianapolis, IN Leigh Cole Dinse, Knapp & McAndrew Burlington, VT 63

64 Coming up in April Join us on Tuesday, April 28 for our next webinar: Campus Sexual Misconduct: Clery, VAWA, Title IX and Beyond Overview of July 1, 2015 VAWA changes to Clery Dating violence, domestic violence, stalking, and threat assessment issues VAWA education and outreach requirements 64

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