AHLA VV. Managing Risk in Employing Foreign Nationals during the Trump Years Isabelle Bibet-Kalinyak McDonald Hopkins LLC Cleveland, OH Mary Therese Link Vice President, Deputy General Counsel Legal Operations, Risk and Regulatory UW Health Madison, WI Annual Meeting June 26-28, 2017
MANAGING RISK IN EMPLOYING FOREIGN NATIONALS DURING THE TRUMP YEARS Isabelle Bibet Kalinyak, Esq. Mary T. Link, Esq. McDonald Hopkins LLC U.W. Health AHLA 2017 Annual Conference June 27, 2017 San Francisco Agenda Recruitment & retention Trump Administration immigration priorities Federal agencies, jurisdiction Consequences of non compliance Recruitment & retention compliance tips Form I 9 Visa basics and process Non immigrant visas Immigration options for IMGs H 1B/H 4 visas J 1 visas/conrad waivers Actionable material changes Legal permanent residence (green card) U.S. citizenship 2 1
Recruitment & Retention U.S. health care system depends on foreign nationals to deliver care Physician shortage Number of international medical graduates ( IMGs ) in the physician workforce is increasing Primary care and rural areas depend on foreign trained physicians 3 Health Care Lawyers & Immigration Understanding of immigration needed to recognize and address areas of risk Responsibility of employers as visa sponsors Employment contract terms Recruitment 4 2
Trump Administration Immigration Priorities Executive Orders Enforcement Merit based system Suspension of H 1B Premium Processing April 3, 2017 H 1B program reform Work authorization for spouses of H 1B workers 5 Federal Agencies, Jurisdiction 6 3
Consequences of Non Compliance Employer Fines Red flagged Claims and government actions Foreign nationals (FNs) Deportation 3 or 10 year bar Appeal process 7 Recruitment Compliance Tips No discrimination based on national origin or citizenship status Not permissible to: Ask if candidate is a U.S. citizen Ask if candidate is a green card (GC) holder Request specific immigration documents Request more, or different, documents than the minimum required Check application forms and onboarding procedures 8 4
Recruitment Compliance Tips, cont d Permissible: Are you legally authorized to work in the U.S.? Will you now, or in the future, require sponsorship for an employment visa? e.g., H 1B visa status Request details about status & history Consult legal Do not have to hire candidates requiring sponsorship Based on valid business needs (e.g. other candidate not available) 9 Form I 9, New Hires Employment verification eligibility I 9 Handbook For Employers Manual Ref # M 274 Acceptable documents: identify and work authorization Retention: Later of 3 years after date of hire or 1 year after termination Periodic updates E Verify 10 5
Visa Basics Foreign nationals must usually have a visa to enter the U.S. ESTA visa waiver program Visa is printed in the passport Visa does not guarantee entry Visas are categorized by purpose: Nonimmigrant visa: Travel on a temporary basis Immigrant visa: Travel to live permanently in the U.S. 11 Non Immigrant Visa Required for entry into the U.S. and lawful presence No guarantee of admission into the U.S. Department of State (not USCIS) Temporary intent Dual intent doctrine: H 1B, L, O, P Visa required to obtain: Social security registration U.S. driver s license 12 6
Non Immigrant Visa Types Abbreviation Non Immigrant Visa Types B1/B2 Business or pleasure visitor visa E 1/E 2 Treaty/trader visa E 3 Australian FNs in specialty occupation H 1B FNs in specialty occupation H 1B1 Chilean and Singaporean FNs H 2A Temporary agricultural workers H 2B Non agricultural temporary workers H 3 Trainees J 1 International exchange visitor visa K Fiancé(e) visa L 1 Intracompany transferees M Vocational student visa O Extraordinary ability P Athletes, artists, and entertainers TN NAFTA visa: Canadian and Mexican FNs 13 Visa Basics: The Quad Valid Form I 797 Approval Notice Valid passport 6 months+ Valid visa stamps in passport Visa stamp #1 issued by U.S. Embassy/Consulate Visa stamp #2 CBP inspection : Admit until Valid I 94 (online) I 94 old paper version Check accuracy every time FN leaves and enters the U.S. 14 7
Form I 797 Approval Notice 15 Visa Stamp #1 from U.S. Embassy 16 8
Visa Stamp #2 from CBP 17 Form I 94 Electronic Record 18 9
Immigration Options for IMGs 19 Visa Options for IMGs: H 1B or J 1? H 1B J 1 Purpose Temporary work Foreign Exchange Visitor Program Eligibility Specialty Occupations only Multiple categories Agency USCIS SEVIS Duration Max. 6 years Max. 7+ years Cost >$2,000++ $200 Expediting 2 weeks, $1,225 N/A Dependents H 4 Cannot work* Home residency requirement N/A J 2 EAD 2 years Including dependents 20 10
H 1B Visa Specialty Occupation Numerical cap: 85,000/fiscal year At cap exempt institution Employer Sponsored USCIS Employer Files Form I 129 Premium processing 21 H 1B Visa, cont d DOL Labor Condition Application (LCA) ETA 9035E Notice to employees In house postings Prevailing wage Cost: Employer responsible 100% Filing fees I 129 $460 Premium processing fees I 907 $1,225 Fraud & prevention fees $500 ACWIA fees $750 $1,500 Other fees $$$$ 22 11
Prevailing Wage & Compensation Issues Prevailing wage: Job category & MSA (each worksite location) Cycle not congruent with recruitment cycle (July June) Specialties with no job classification Default classification as Other Physicians and Surgeons, $95/hour Worksite locations Outlyers Health care compensation models Bonuses, incentives, stipends, loans, etc. Moonlighting, speaking engagements Template employment agreements 23 H 1B: Documentation Payroll records for H 1B worker and employees in same classification: At PPB or worksite location Retention: 3 years from date of creation of records, except if enforcement action commenced Immigration Public Access File (PAF): At PPB or worksite location Must be available 1 day after filing LCA Retain PAF 1 year after end of employment 24 12
PAF Content Checklist Certified LCA signed by employer and cover pages Prevailing wage information and source Wage rate documentation Actual wage statement/memorandum Summary of benefits for all employees in same or similar position(s) Proof of notification to employees (postings) or union representative Proof that employer is not H 1B Dependent or a Willful Violator 25 H 1B: Duration & Renewal Duration: 3 years + 3 years 6 years max., unless exception 1 year overseas Renewal: Up to 6 months in advance Tip: Driver s license, Premium Processing New grace period (60 days) and portability 26 13
H 1B: Travel Permitted May require visa from visiting country Caution with passport and visa validity dates FN must check I 94 online after each overseas trip Corrective action, if needed Maintain written acknowledgement on file 27 H 4 Dependents Same validity period as the H 1B worker Two scenarios: Overseas: DS 160 plus visa interview at U.S. Consulate/Embassy In the U.S.: Form I 539 Not allowed to work unless spouse has approved I 140 + EAD 28 14
H 4 Dependents, cont d Employee and dependent can file Must renew by filing application with USCIS Cost: Employer is not statutorily responsible Filing fees I 539 $370 Tip: Liability Tip: Dual representation issues 29 H 1B: Termination End of term, no renewal: No duties FN leaves before end of term: Employer must: (1) Withdraw LCA (2) Notify USCIS & cancel I 129 Employer terminates FN before end of term: Employer must : (1) Withdraw LCA (2) Notify USCIS and cancel I 129 (3) Pay reasonable transportation costs to last place of foreign residence H 4 Dependents status terminated automatically Nonproductive time 30 15
J 1 Visa, Foreign Exchange Visitor Program Department of State (DOS) Sponsors/hosts must issue DS 2019 Time limitation: Max. 7+ years for physicians INA 212(e): 2 year home return requirement Waivers Request by an IGA, e.g. VA Conrad State 30 Program Only for physicians Persecution Exceptional Hardship to U.S. citizen, LPR spouse, or child No objection statement from home country N/A to physicians 31 J 1 Conrad Waivers State specific Full time job offer Health Professional Shortage Area (HPSA), mental health HPSA, or Medically Underserved Area or Population (MUA or MUP) 3+ year F/T written contract PCP or specialist 30 slots per year (July 1 June 30) Flex slots, 10 max. Must begin within 90 days 32 16
Actionable Material Changes Change of residential address (FN) Register within 10 calendar days of move USCIS Form A.R.11 (online, free) Misdemeanor Compensation Job, job title, and/or job duties Worksite location(s), including rounds Employer or entity Due diligence checklist 33 Green Card, Form I 551 34 17
Legal Permanent Residence Eligibility: Employer, familial relationship, diversity visa lottery Employment Based Categories (EB#): Skills, occupation, and nationality (birth country) Family Based Categories (FB#): Spouse and children Adult (21) unmarried or married children Brothers and sisters Why? Permanent Family: Spouse and unmarried children Not employer specific Path to citizenship Travel Grants No right to vote 35 Diversity Visa Lottery Eligibility by country of birth Not eligible in 2018: Bangladesh, Brazil, Canada, China (mainland born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, U.K. (except Northern Ireland) and dependent territories, and Vietnam No filing fees 36 18
EB Green Card Categories EB 1 Priority workers EB 2 Members of professions holding advanced degrees EB 3 Skilled workers, professionals, and other workers EB 4 Special immigrants Iraqi and Afghan translators Iraqis who have assisted the U.S. EB 5 Employment creation (investors) 37 Multiple Applications, Considerations & Cost Considerations Probability of success No Prejudice Timing Priority Date Retention Cost Who Bears the Cost? Regulations & State Law H 1B: Employer PERM: Employer I 140? I 485 I 765 I 131 Dependents 38 19
Maintaining LPR Status Green card (GC) is valid for 10 years Criminal activities FN U.S. citizen sponsor (Adam Walsh Act) Removal proceedings IRS Residence requirements File re entry permit before long overseas travel Returning resident visa (SB 1) 39 U.S. Citizenship Why? Voting Jury U.S. passport Grants Bringing family members to the U.S. Children born abroad Eligibility (after GC): 3 years (FB); 5 years (EB) USCIS Form N 400 Interview: English proficiency & civics test Dual citizenship 40 20
Contacts McDonald Hopkins LLC Isabelle Bibet Kalinyak (216) 348 5736 IBK@McDonaldHopkins.com U.W. Health Mary T. Link (608) 836 2563 mlink@uwhealth.org This presentation is intended to provide general information. It is not intended as a form of, or as a substitute for legal advice and analysis. Legal advice should always come from in house or retained counsel. Moreover, if this presentation in any way contradicts advice of counsel, counsel s opinion should control over anything written herein. No attorney client relationship is created or implied by this presentation. No reproduction or dissemination without prior written consent from McDonald Hopkins LLC. 2017 McDonald Hopkins. All rights reserved. 41 21