TOPICSFOR EMERGINGCOMPANIES

Transcription

1 ESSENTIALS FOR STARTUPS: A LEGAL TOOLKIT FOR IN HOUSE COUNSEL IMMIGRATION LAW FOR STARTUPS Flora Hoffman Weaver Schlenger Mazel LLP Carolyn Rashby Miller Law Group Temporary Work Visas Permanent Residence (aka Green Card) Export Control attestation requirements Form I 9 E Verify and New IMAGE Program Trends in worksite enforcement Preparing for government worksite compliance visits Changes in Work Conditions and Due Diligence for Mergers & Acquisitions and other corporate changes Current immigration climate TOPICSFOR EMERGINGCOMPANIES 2 1

2 Temporary Visas Intention to stay temporarily in the United States Permission to engage in certain activities at certain specified places as authorized by the specific visa category utilized A to V Dual intent allowed for some categories Permanent Resident Status Intention to remain in the United States on a permanent basis Permission to live and work indefinitely in the United States Not employer specific First step toward citizenship TEMPORARY AND PERMANENT WORK VISAS 3 Student (F) Visa Non immigrant temporary intent required Generally, students may work for 12 months after graduation in their field (STEM fields may get 17 more months) Proceeding to permanent residency status inconsistent with F status 8 CFR 214.2(f) NON IMMIGRANT VISAS 4 2

3 Specialty Occupation (H 1B) Visa The position offered must require at least a BA/BS degree in a particular field The individual must possess the required degree or equivalent 8 CFR 214.2(h) No shortage necessary but LCA required (20 CFR Sec ) Renewedin3 year increments for a total of 6 years; extensions beyond 6 years if sufficiently far in PR process H 1B Fiscal Year Cap!! NON IMMIGRANT VISAS 5 Lateral hires are not subject to H 1B cap May port upon new H employer s filing of H petition with USCIS Eligible if no previous unauthorized employment American Competitiveness in 21st Century (AC21) Act of 2000 permitted this, followed by policy memos but still no regulations Special requirements for H 1B dependent employers Generally, an employer with over 100 employees is considered H 1B dependent if the employer has 15 percent or more of its workforce in H 1B status. H 1B dependent employers have additional compliance obligations under LCA rules The H 1B dependency calculation must occur at the time of each LCA filing. 20 CFR provides additional burdens H 1B PORTABILITY AND DEPENDENT EMPLOYERS 6 3

4 Australian E 3 Professional Visa Like H 1B but for Australians only Only 10,000 per year Processing directly at the U.S. Consulate overseas Spouse eligible for EAD May extend indefinitely REAL ID Act of 2005 NON IMMIGRANT VISAS 8 CFR 214.2(e)(3) 7 Trade NAFTA (TN) Visa Generally used for Canadian nationals Only professionals on the list Up to 3 year initial grant; renewed in one year increments Proceeding to permanent residency status inconsistent with TN status List of NAFTA professions found in Appendix 1603.D.1: secalena.org/en/view.aspx?x=343&mtpiid=147#ap1603.d.1 NON IMMIGRANT VISAS 8 4

5 Intracompany Transferee (L) Visa Related company abroad seeks to transfer employee Employee has worked for 1 year abroad 5 to 7 year limit on stay for executives/managers or specialized knowledge Dual intent status: can be in L status and proceed to permanent residency Spouse can obtain work authorization 8 CFR 214.2(l) NON IMMIGRANT VISAS 9 Extraordinary Ability in the Sciences, Education, Athletics, Business or Arts (O) Visa Small percentage at very top of field Consultation from peer or industry group International award of high acclaim or 3 out of list Up to 3 years initially; extensions in one year increments No work authorization for spouses NON IMMIGRANT VISAS 10 5

6 Trader/Investor (E) Visa Individual must be a national of a treaty country and must: Carry on substantial trade in the US or Invest in a US entity Unlimited duration (renewed in 1 year increments) NON IMMIGRANT VISAS 11 Exchange (J) Visa For students or trainees Short-term placement Company must have bona fide training program Participant must be fluent in English Beware of 2 year residency requirement List of STEM positions found at: NON IMMIGRANT VISAS 12 6

7 Business Visitor (B) Visa To engage in business activities No payment from US Demonstrate ties to home country Limited time period 9 FAM Notes NON IMMIGRANT VISAS 13 New Requirements for H 1B, L 1 and O 1 Visas AttestationrequiredonFormI 129 that the employer is in compliance with export control rules for the particular foreign national beneficiary. The form requires the employer to check the appropriate box indicating whether an export control license is required: EXPORT CONTROL ATTESTATION 14 7

8 a.k.a. green card Three Components of Permanent Residency Process PERM Labor Certification (some exceptions) Immigrant Visa Petition (I 140) Application for Permanent Residence (I 485) PERMANENT RESIDENCY PROCESS 15 Step 1: Must be able to establish shortage of minimally qualified U.S. workers PERM: Position specific Recruitment done before filing Filed electronically with Department of Labor (DOL) Estimate 5 months for processing once filed DOL auditing 33% of applications to date for FY2012 Special Handling for college and university professors Establishes Priority Date and Preference Category 20 CFR 655 and STEP 1 OF GREEN CARD: LABOR CERTIFICATION (PERM) 8

9 Step 2: Immigrant visa petition After PERM approval, employer qualifies employee for employer sponsored immigrant visa Filed with USCIS Estimate 4 months for processing once filed Concurrent filing option for current priority dates Employer must show ability to pay 17 STEP 2: FORMI 140 (IMMIGRANTVISA PETITION) Preference Categories (EB 1, EB 2, EB 3) Visa Quota System and per country limits Country of Birth and Cross Chargeability Department of State Current visa bulletin available at PRIORITY DATES AND VISA RETROGRESSION 18 9

10 May 2012 dates Category Country of Birth Date EB 2 India 15 Aug 2007 EB 3 India 08 Sep 2002 EB 2 China 15 Aug 2007 EB 3 China 01 April 2005 EB 2 all others current EB 3 all others 01 May 2006 BUT PRIORITY DATES AND VISA RETROGRESSION 19 June 2012 dates Category Country of Birth Date EB 2 India UNAVAILABLE EB 3 India 15 Sept 2002 (one week) EB 2 China UNAVAILABLE EB 3 China 08 April 2005 (one week) EB 2 all others current EB 3 all others 08 June 2006 (5 weeks) (exc. Philippines & Mexico) PRIORITY DATES AND VISA RETROGRESSION 20 10

11 Step 3: Adjustment of Status When PD is current, employee can file Form I 485 Filed with USCIS, or can process overseas Family included at this stage Need birth records, marriage records, medical exam, etc. Current processing time is 4 months from filing Travel restrictions Portability 21 STEP 3: ADJUSTMENT OF STATUS TO PERMANENT RESIDENT About Form 1 9 The Immigration Reform and Control Act of 1986 (IRCA) prohibits the hiring or continued employment of individuals whom employers know are unauthorized to work in the US IRCA requires employers to verify the identity and employment eligibility of all individuals upon hire, whether US citizens or not, by completing Form I 9 with 3 days of hire Hired = actual commencement of employment for wages or other remuneration List A versus documents from List B and List C to establish identity and work authorization USCIS Handbook for Employers pdf FORM I 9 REQUIREMENT 22 11

12 Form 1 9 Basics Photocopies of the Form I 9 may be used Forms may be signed and retained electronically The employer must inspect the documents presented, and they must reasonably appear on their face to be genuine The employer may make copies of and retain identity and authorization documents an employee presents, but only if this is done for all employees FORM I 9 REQUIREMENT 23 Reverification Some documents presented may contain future expiration dates Calendar system for reverifying work authorization on or before expiration date must be established May complete section 3 of the original Form I 9, or use a new Form I 9 (completing section 3) and retain w/original If employee cannot provide a document from List A or List C showing current authorization, the employer cannot continue to employ that person Existence of future expiration date: Does not preclude continuous work authorization Does not mean that subsequent authorization will not be granted Should not be considered when determining qualifications H 1B, L 1 and other visa holders may continue working for up to 240 days while extension request is pending FORM I 9 REQUIREMENT 24 12

13 What are they? E Verify and IMAGE in a Nutshell When E Verify is and is not mandatory Advantages: Additional work authorization for STEM graduates Canenroll in E Verify without IMAGE WHAT ABOUT E VERIFY AND IMAGE? 25 Enforcement Is Up! Unprecedented highs in enforcement and legislative activity related to Form I 9andE Verify compliance From 2009 to 2011, ICE : audited more than 6,468 employers; debarred about 521 companies and individuals; and imposed more than $76.3 million in penalties. STATUS OF WORKSITE ENFORCEMENT 26 13

14 Which Government Agencies May Come Knocking? I 9s: ICEandDOL LCAs for H 1B: DOL,USCIS,ICE PERM: DOL,USCIS,ICE Export Control: Commerce, DOJ, DOD, Treasury,CIA,FBI,NSA,Energy,orHomeland Security MAXIMIZING IMMIGRATION COMPLIANCE 27 What the Government Wants to See I 9s and Payroll Records Labor Condition Applications for H 1B Workers PERM documents Export control as applied to foreign national employees and visitors E Verify and IMAGE programs MAXIMIZING IMMIGRATION COMPLIANCE 28 14

15 Recent Enforcement Activity Prince George s County Public Schools (MD) found in violation of H 1B program by requiring teachers to pay H 1B filing and legal fees. DOL assessed school system $1,740,000 in civil money penalties. H 1B regs require employers to pay USCIS filing fees. Infosys, an Indian IT outsourcing provider, accused of visa and tax fraud stemming from company s alleged practice of sending employees to work in US on B 1 visas to avoid increasedrestrictionsof H 1B visas. MAXIMIZING IMMIGRATION COMPLIANCE 29 Best Practices for Handling Compliance Visits Establish chain of command protocol in your company (starting with receptionist!) I-9 best practices H-1B LCA public access files Remember when to withdraw H-1Bs with early termination PERM documentation Sensitive technology reviews MAXIMIZING IMMIGRATION COMPLIANCE 30 15

16 Impact of Changes in Employment Location change, promotions, salary reductions can impact nonimmigrant visa Benching is not permitted: Required to pay full salary to H 1B employee, as specified in the LCA, even if there is not enough work. For layoffs and terminations: H 1B employee must receive same separation benefits as other employees Employer must meet obligation to pay the cost of return transportation to home country Employer must notify USCIS of termination without delay CHANGES IN EMPLOYMENT 31 Due Diligence Basics Are you the buyer or the seller? Designate person responsible for audit Revisit your policies on storage and purging Remediate Decide if you need outside help Ensure continued work authorization of key personnel 32 IMMIGRATION DUE DILIGENCE IN MERGERS & ACQUISITIONS 16

17 What s on the Horizon Culture change within USCIS is slow but coming President s Council on Jobs and Competitiveness Entrepreneurs in Residence Program Small Business Administration task force Balance creation of US jobs with protectionism during an election year CURRENT IMMIGRATION CLIMATE 33 Pending in Congress Zoe Lofgren s Immigration Driving Entrepreneurship in America (IDEA) Act Michael Bennet s STEM Visa Act Fairness for High Skilled ImmigrantsAct PENDING LEGISLATION 34 17

18 QUESTIONS AND ANSWERS Contact Meg O Connor to be added to our Attorney Friends of the Firm and receive news alerts about business immigration law developments. moconnor@wsmimmigration.com QUESTIONS AND ANSWERS 35 18