Immigration: How a Good Deal Can Go Bad Thursday, January 13, 2011 ~ 1:00-2:00 pm Eastern

Transcription

1 Immigration: How a Good Deal Can Go Bad Thursday, January 13, 2011 ~ 1:00-2:00 pm Eastern This webinar brought to you by the Labor and Employment (Labor) Practice Group, and is co-sponsored by the Teaching Hospitals and Academic Medical Centers (TH/AMC) Practice Group Speakers Robert S. Groban, Jr., Esquire Partner Epstein Becker Green, New York, NY Eileen M.G. Scofield, Esquire Counsel Alston & Bird LLP, Atlanta, GA Moderator Greg H. Siskind, Esquire Partner Siskind Susser PC, Memphis, TN

2 Many "Immigration" Law Related Issues That May, or May Not, Exist in the Deal: Non-Immigrant Visa, Immigrant Visas, Employment Verification Process/Policy, Form I9, Asset Agreement, Stock Agreement, For-profit, Not-for-profit, Physical Therapist, Registered Nurse, Physician, Pharmacist, Physician Agreements, Prior Investigations, Allegations of Unauthorized Workers, Subcontractor Compliance Issues, Border facilities, Port of Entry, BCP, J, H, O,TN,EB2, EB3, Teaching Hospital, Union Workers, Best Practices, Social Security Mismatch Issues, Annual Verification Training, Collective Bargaining Agreement, Workforce Disruption, Prior Government Investigations, ICE Audits, Warranties, Liabilities, Indemnification, Public Access Files, Escrow, Office of Special Counsel, National Origin Discrimination How to Spot Them, Where They Work Into the Deal, and What to Do With Them? 2

3 Key Areas of The Deal: Before During After Due Diligence Implementation Enforcement 3

4 General Considerations US and states have dramatically stepped up enforcement criminal and civil penalties I-9 investigations States loss of access to government contracts; loss of business license Litigation exposure if you render workers out of status Serious PR problems The Wal-Mart vendor contract Legal malpractice 4

5 Special Considerations for Health Care Employers Potential loss of access to Medicare and Medicaid (HHS appropriations bill) Loss of access to state and local government agency health insurance programs Several states have NOT included critical employer provisions in loss of business license provisions Hospitals rely on foreign employees more than typical employers (high percent of nurses and doctors, low-skilled workers) 5

6 Immigration Law Background: Work Visas Employment Verification 6

7 Immigration Law Background: Work Visas: Non-immigrant: H,J,O,TN Immigrant Visas: Labor Certification, Petition for Permanent Residence, Adjustment of Status/Consular Processing 7

8 Immigration Law Background: Employment Verification: Form I9 Verification Compliance Practices 8

9 Hypothetical: We Couldn't Make Up Facts As Good As Real Life! 9

10 Key Areas of The Deal: Before During After Due Diligence Implementation Enforcement 10

11 Due Diligence What Are the Facts of Life as well as the Deal? What Kind of Deal? Will the Checklist Change? 11

12 The Facts of Life, the Deal: Work Visa: Non-Immigrant Visa, Immigrant Visas, For-Profit, Not-For-Profit, Physical Therapist, Registered Nurse, Physician, Pharmacist, Physician Agreements, Border facilities, Port of Entry, BCP, J, H, O,TN,EB2, EB3, Teaching Hospital, Union Workers Form I9 Verification Compliance: Employment Verification Process/Policy, Form I9, Prior Investigations Allegations of Unauthorized Workers, Subcontractor Compliance Issues, Best Practices, Social Security Mismatch Issues, Annual Verification Training, Collective Bargaining Agreement, Workforce Disruption, Prior Government Investigations, ICE Audits, Public Access Files, Escrow, Office of Special Counsel, National Origin Discrimination Deal:? 12

13 The Facts of Life, the Deal: Work Visa: Non-Immigrant Visa, Immigrant Visas, For-Profit, Not-For-Profit, Physical Therapist, Registered Nurse, Physician, Pharmacist, Physician Agreements, Border facilities, Port of Entry, BCP, J, H, O,TN,EB2, EB3, Teaching Hospital, Union Workers Form I9 Verification Compliance: Employment Verification Process/Policy, Form I9, Prior Investigations Allegations of Unauthorized Workers, Subcontractor Compliance Issues, Best Practices, Social Security Mismatch Issues, Annual Verification Training, Collective Bargaining Agreement, Workforce Disruption, Prior Government Investigations, ICE Audits, Public Access Files, Escrow, Office of Special Counsel, National Origin Discrimination Deal: Asset Agreement, Stock Agreement, Subcontractor Compliance, Collective Bargaining Agreement, Workforce Disruption, Warranties, Liabilities, Indemnification, Escrow, etc. 13

14 Important Issues 1. How is the deal structured? A. A merger or spin-off where employees will have a new employer with a different TIN B. A stock purchase where the acquired company remains a separate corporation with its existing TIN C. An asset acquisition where no liabilities are being assumed 2. What are the timing consideration? A. Is there time to file new petitions? B. Are employees going to suffer adverse immigration consequences as a result of timing? C. Can you defer immigration paperwork until after closing? 3. Convenience of not having to refile versus risk of assuming liabilities associated with prior filings 4. Employee leasing? 14

15 Key Areas of The Deal: Before During After Due Diligence Implementation Enforcement 15

16 Non-Immigrant Visas H-1Bs 1. H-1Bs used to be that new EIN meant new LCA which meant new H-1B petition; now it is enough to assume immigration liabilities and annotate public access file; but you may not want to assume liabilities and would want to transfer prior to closing 2. Material changes in employee s duties and job requirements and the relocation of the employee may also require a new LCA. So a consolidation of operations resulting in relocations could trigger a later need to make changes. 3. Fees for H-1Bs can be hefty so not having to refile can be a big saver 4. Layoffs may be barred if employer is dependent; need to recalculate to see if company is dependent based on number of H1B employees in new entity versus total number of employees 5. Continuing to document ability to pay 16

17 TN Visas No LCAs so basic successor in interest analysis applies. Nationality of employee key, not company 17

18 NIV Remedies 1. File transfers prior to closing 2. File amendments after 3. Transfer to other visa categories 4. Start green card processing 5. Spin off employee leasing company to retain employees until they can be transferred. 18

19 Green cards - PERM 1. Visa Bulletin mess long waits 2. Three steps to green card PERM (recruiting, I- 140, adjustment) 3. PERM liberal notion of successor in interest 4. USCIS tougher on I-140s; new employer triggers need for new I Adjustment portability 6. Leasing option 19

20 Key Areas of The Deal: Before During After Due Diligence Implementation Enforcement 20

21 Enforcement Issues: Form I9 Verification Compliance: Employment Verification Process/Policy, Form I9, Allegations of Unauthorized Workers, Subcontractor Compliance Issues, Best Practices, Social Security Mismatch Issues, Annual Verification Training, Collective Bargaining Agreement, Workforce Disruption, Government Investigations, ICE Audits, Public Access Files, Escrow, Office of Special Counsel, National Origin Discrimination 21

22 Due Diligence-Worksite Enforcement 1. Must be part of every transaction 2. Focus on Form I-9 compliance and related issues 3. Significant fines for Form I-9 violations, unfair immigration employment practices, discrimination 22

23 Due Diligence-Worksite Enforcement 1. IMAGE Best Practices as a guide for worksite enforcement due diligence 2. Federal and state laws 3. Collective bargaining agreements 4. Boilerplate Contract Language 23

24 Name Changes 1. No need to re-petition 2. Either file amendments or note when case is extended 3. Caution: travel issues 24

25 Form I-9 Compliance 1. If successor in interest, Form I-9s remain valid 2. If not, new Form I-9s must be completed at date of closing 3. Benefits/detriments of completing new Form I-9s in every case 25

26 Due Diligence-Personnel 1. Should have an inventory of all workers on visas to see whether company has history of compliance, what visas need to transfer prior to closing and which shortly after closing 2. Develop a plan consistent with closing schedule to address all visa issues to ensure smooth transition 3. Severe consequences to organization, employee for status violations 26

27 Due Diligence-Personnel Maintain documents required for each visa classification Develop tickler lists for expiration dates and incorporate into Form I-9 system E.g., Public Access Files and reorganization memos, if applicable; labor certification documentation 27

28 Q & A 28

29 Immigration: How a Good Deal Can Go Bad 2010 is published by the American Health Lawyers Association. All rights reserved. No part of this publication may be reproduced in any form except by prior written permission from the publisher. Printed in the United States of America. Any views or advice offered in this publication are those of its authors and should not be construed as the position of the American Health Lawyers Association. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought from a declaration of the American Bar Association 29