Kristin R. Erenburg, Esq. The Cleveland Clinic Isabelle Bibet-Kalinyak, Esq. McDonald Hopkins LLC OSHRM/SOHA Spring Conference March 31, 2017
Agenda Recruitment & retention New immigration priorities Federal agencies, jurisdiction Consequences of non-compliance Recruitment & retention compliance tips 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 U.S. citizenship 2
Recruitment & Retention U.S. health care system depends on foreign nationals to deliver care Physician shortage Number of international medical graduates ( IMGs ) in physician workforce is increasing Primary care and rural areas depend on foreign-trained physicians 3
Lawyers & Immigration Understanding of immigration needed to recognize and address areas of risk Recruitment Employment contract terms Responsibilities of employers as visa sponsors 4
Trump Administration, New Immigration Priorities Executive orders Enforcement Suspension of H-1B Premium Processing effective April 3, 2017 Work authorization for spouses of H-1B workers H-1B program reform Merit-based system 5
Federal Agencies, Jurisdiction 6
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 U.S. citizen Ask if candidate is green card (GC) holder Request specific immigration documents Request more or different documents than minimum required 8
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
Recruitment & Retention Compliance Tips: Form I-9 Form I-9: Employment verification eligibility New hire I-9 Handbook For Employers Manual Ref# M-274 Acceptable documents listed Identity and work authorization Periodic updates Retention Later of 3 years after date of hire or 1 year after termination E-Verify 10
Visa Basics Citizen of foreign country usually must have a visa to enter the U.S. 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 in U.S. and lawful presence No guarantee of admission into 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
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
General Visa Process 14
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 CBP inspection Visa stamp #2 Admit until Valid I-94 (online) I-94 old paper version Tip: Check accuracy every time FN leaves and enters U.S. 15
I-797 Approval Notice 16
Visa Stamp #1 17
Visa Stamp #2 18
I-94 Electronic Record 19
Immigration Options for IMGs 20
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 > $1,000++ $200 Expediting 2 weeks, $1,225 N/A Dependents H-4 Cannot work* J-2 EAD Home residency requirement N/A 2 years Including dependents 21
H-1B Visa Specialty occupation Numerical cap: 85,000 per fiscal year At cap-exempt institution Employer-sponsored USCIS Employer files Form I-129 Premium processing 2 weeks (Form I-907) 22
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 $$$$ 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 Content checklist 24
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 Proof of notification to employees (postings) or union representative Proof that employer is not H-1B Dependent or 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 Process 26
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 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
H-4: Dependents, cont d Employee and dependent can file Tip: Must renew by filing application with USCIS Cost: Employer not 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
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 years PCP or specialist 30 slots per year (July 1 June 30) Flex slots, 10 max. Written contract Must begin within 90 days 32
J-1 Conrad Waiver Ohio 30 waivers each year $3,571 Notice of intent to apply Flex slots FP, IM, OB/GYN, adolescent med., pediatrics, psychiatry Subspecialties 3-year contract (F/T) No non-compete No termination w/o cause or mutual agreement No change of worksite w/o approval 33
Actionable Material Changes - Compliance Tips Change of residential address (FN) Register within 10 calendar days of move USCIS Form A.R.11 (online, free) Consequences: Misdemeanor Compensation Job, job title, and/or job duties Worksite location(s) Employer or entity Due diligence checklist 34
Green Card, Form I-551 35
Legal Permanent Residence Eligibility: Employer, familial relationship, 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 36
Diversity Visa Lottery Eligibility by country of birth Not eligible in 2017: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam No filing fees 37
Green Card Process, EB Categories* PERM ETA 9089 Foreign Labor Certification (DOL) 6-9 months Not required for EB-1 and NIW Free I-140 Immigration Petition for Alien Worker (USCIS) 4-12 months, Premium Processing $700 I-485 Application to Register Permanent Residence or Adjust Status (USCIS), aka AOS Visa must be available or else on hold to adjust status 4-12 months $1,225 per person I-765 Application for Employment Authorization Document (EAD) File concurrently with I-485, optional 3-4 months Free if filed with I-485 I-131 Application for Travel Document, aka Advance Parole (AP) File concurrently with I-485, optional 3-4 months Free if filed with I-485 *FN in U.S., in valid immigration status 38
EB 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) 39
EB-2(A) Category: Advanced Degree Job requires Master s degree or higher Most common category for physicians Job offer (permanent & full-time) from U.S. employer FN possesses degree or equivalent (baccalaureate degree plus 5 years progressive work experience in the field) 40
Multiple Applications, Considerations and 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 41
Maintaining LPR Status GC valid 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) 42
U.S. Citizenship Why? Voting Jury U.S. passport Grants Bringing family members to the U.S. Obtaining citizenship for child born abroad FB: 3 years after GC EB: 5 years after GC File N-400 (USCIS) Interview: English proficiency & civics test 43
Acknowledgements We wish to express gratitude to the following for generously granting permission to use their charts and materials in this presentation and related white paper: Slide 5: Shaw Lauren, Federal Agencies with Immigration and Integration Responsibilities, Migration Policy Institute, Nov. 2005. Slide 20: Sostrin R., Qualifying International Medical Graduates for Immigration Benefits in the United States (chart). In: Catillaz MA, ed. Immigration Options for Physicians. 3rd ed. Washington, DC: American Immigration Lawyers Association; 2009. Slides 1, 2, 43 & 45: Thanks to Ted Bowling Photography. See https://tedbowling.smugmug.com/ 44
Contacts McDonald Hopkins LLC Isabelle Bibet-Kalinyak (216) 348-5736 IBK@McDonaldHopkins.com Cleveland Clinic Kristin R. Erenburg (216) 448-0205 Kerenburg@CCF.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. 45