WSM Immigration Basics


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Immigration Basics for HR Professionals will layout the immigration process from entering the country to getting a Green Card.

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WSM Immigration Basics

  1. 1. U.S. Immigration Basics An Introduction for HR Professionals Weaver Schlenger Mazel LLP Flora Hoffman, Lisa Baker Jones, Laura J. Mazel, Stephanie Smith March 2, 2012
  2. 2. HR Certification This program, ORG-PROGRAM-110601, has been approved for 3.00 (General ) recertification credit hours toward PHR, SPHR and GPHR recertification through the HR Certification Institute. Please be sure to note the program ID number on your recertification application form. For more information about certification or recertification, please visit the HR Certification Institute website at 2 © 2012 Weaver Schlenger Mazel LLP
  3. 3. Immigration 101 Different Agencies US Citizenship and Immigration Services (USCIS) Department of State (DOS) Department of Labor (DOL) Visa Stamp vs. Visa Status Common Status Documents Form I-94 Form I-797 Approval Notice Common Forms 3 © 2012 Weaver Schlenger Mazel LLP
  4. 4. Temporary and Permanent Work Visas Temporary Visas Permanent Resident Status • Intention to stay temporarily in the United States • Intention to remain in the United States on a permanent basis • 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 4 • Permission to live and work indefinitely in the United States • Not employer specific • First step toward citizenship © 2012 Weaver Schlenger Mazel LLP
  5. 5. Non-Immigrant Visas 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 5 © 2012 Weaver Schlenger Mazel LLP
  6. 6. Non-Immigrant Visas Specialty Occupation (H-1B) Visa • • The individual must possess the required degree or equivalent • No shortage necessary but LCA required • Renewed in 3-year increments for a total of 6 years • Limited extensions beyond 6 years • 6 The position offered must require at least a BA/BS degree in a particular field Portability © 2012 Weaver Schlenger Mazel LLP
  7. 7. Non-Immigrant Visas 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 7 © 2012 Weaver Schlenger Mazel LLP
  8. 8. Non-Immigrant Visas 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 8 © 2012 Weaver Schlenger Mazel LLP
  9. 9. Non-Immigrant Visas Intracompany Transferee (L) Visa • • 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 • 9 Related company abroad seeks to transfer employee Spouse can obtain work authorization © 2012 Weaver Schlenger Mazel LLP
  10. 10. Non-Immigrant Visas Extraordinary Ability in the Sciences, Education, Athletics, Business or Arts (O) Visa • • 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 • 10 Small percentage at very top of field No work authorization for spouses © 2012 Weaver Schlenger Mazel LLP
  11. 11. Non-Immigrant Visas 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) 11 © 2012 Weaver Schlenger Mazel LLP
  12. 12. Non-Immigrant Visas 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 12 © 2012 Weaver Schlenger Mazel LLP
  13. 13. Non-Immigrant Visas Business Visitor (B) Visa • To engage in business activities • No payment from US • Demonstrate ties to home country • Limited time period 13 © 2012 Weaver Schlenger Mazel LLP
  14. 14. QUESTIONS AND ANSWERS © 2012 Weaver Schlenger Mazel LLP
  15. 15. Permanent Residence Overview PERM, I-140, I-485
  16. 16. Permanent Residency Process A.k.a. “green card” Three Components of Process • PERM Labor Certification (some exceptions) • Immigrant Visa Petition (I-140) • Application for Permanent Residence (I-485) 16 © 2012 Weaver Schlenger Mazel LLP
  17. 17. Step 1: Labor Certification Process Must be able to establish shortage of minimally qualified U.S. workers PERM: • • • • • • • 17 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 © 2012 Weaver Schlenger Mazel LLP
  18. 18. Step 2: Form I-140 (Immigrant Visa Petition) • 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 18 © 2012 Weaver Schlenger Mazel LLP
  19. 19. Priority Dates and Visa Retrogression • 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 19 © 2012 Weaver Schlenger Mazel LLP
  20. 20. Priority Dates and Visa Retrogression March 2012 dates Category Date EB-2 India 1-May-2010 EB-3 India 22-Aug-2002 EB-2 China 1-May-2010 EB-3 China 1-Jan-2005 EB-2 all others current EB-3 20 Country of Birth all others 15-Mar-2006 © 2012 Weaver Schlenger Mazel LLP
  21. 21. Step 3: Adjustment of Status to Permanent Resident • 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 © 2012 Weaver Schlenger Mazel LLP
  22. 22. QUESTIONS & ANSWERS 22 © 2012 Weaver Schlenger Mazel LLP
  23. 23. Best Immigrant Visa Options Available to Researchers and Others Non PERM
  24. 24. EB-1 Category EB-2 Category • Extraordinary Ability Petition • National Interest Waiver • Outstanding Researcher Petition • Schedule A Group II • PERM Advantage: Best protection against visa retrogression! 24 Subject to Visa Retrogression – Important for Chinese and Indian nationals © 2011 Weaver, Schlenger & Mazel
  25. 25. Employment Based First Preference Visas (EB-1) Extraordinary Ability Outstanding Researcher • Challenging but USCIS has been more reasonable lately • Ideal for nonprofit research institutions and some private companies with R&D departments • 25 Most difficult Disadvantage: Very difficult standard • Can be difficult for postdocs early in their careers © 2011 Weaver, Schlenger & Mazel
  26. 26. Employment Based Second Preference Visas (EB-2) National Interest Waiver • Foreign national can selfpetition • Employer must act as petitioner • Exceptional ability standard (less onerous than EB-1) 26 Schedule A Group II • Exceptional ability standard (less onerous than EB-1) © 2011 Weaver, Schlenger & Mazel
  27. 27. Requirements: •On-site posting required •Prevailing Wage Determination required •In-house Media Statement/Posting Advantage: Can be filed by Premium Processing
  28. 28. Requirements and Processing Times: •Must show work in the National Interest •Individual plays critical role in the project •Cannot be premium processed Can work for Nonprofit research institutions Companies with R&D Advantage: Less HR/ADMIN Work, no internal posting, PWD, etc. Employee can self petition
  29. 29. QUESTIONS AND ANSWERS © 2012 Weaver Schlenger Mazel LLP
  30. 30. Immigration Compliance
  31. 31. Maximizing Immigration Compliance • Preparation versus Denial • Know Which Government Agencies Can Come Knocking: I-9s: ICE and DOL LCAs for H-1B: DOL, USCIS, ICE PERM: DOL, USCIS, ICE Export Control: Commerce, DOJ, DOD, Treasury, CIA, FBI, NSA, Energy or Homeland Security © 2012 Weaver Schlenger Mazel LLP
  32. 32. Status of Worksite Enforcement Unprecedented highs in enforcement and legislative activity related to Form I-9 and E-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.
  33. 33. 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 © 2012 Weaver Schlenger Mazel LLP
  34. 34. What about E-Verify and IMAGE? • E-Verify and IMAGE in a nutshell • When E-Verify is and is not mandatory • Advantages: Additional work authorization for STEM graduates • Can enroll in E-Verify without IMAGE • How to make the decision? Who at the company needs to be involved? • What steps should HR take before enrolling? © 2012 Weaver Schlenger Mazel LLP
  35. 35. How Can You Prepare for a Government Audit? • 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 © 2012 Weaver Schlenger Mazel LLP
  36. 36. What About Electronic I-9 Systems? • Civil penalties — Chipotle; Abercrombie & Fitch • Memorandum of Understanding (MOU) © 2012 Weaver Schlenger Mazel LLP
  37. 37. QUESTIONS AND ANSWERS © 2012 Weaver Schlenger Mazel LLP
  38. 38. Current Immigration Climate and Legislative Updates
  39. 39. Current Immigration Climate • Silicon Valley is hiring, but unemployment remains high in rest of country • PERM audit rate is 33% • RFEs for H-1B, L-1 and O-1 petitions • Long waits at American Consulates 39 © 2012 Weaver Schlenger Mazel LLP
  40. 40. Current Immigration Climate • Culture change within USCIS is slow but coming • President’s Council on Jobs and Competitiveness • Employers in Residence Program • Small Business Administration task force • Balance creation of US jobs with protectionism during an election year 40 © 2012 Weaver Schlenger Mazel LLP
  41. 41. Pending Legislation • Zoe Lofgren’s Immigration Driving Entrepreneurship in America (IDEA) Act • Michael Bennet’s STEM Visa Act • Fairness for High-Skilled Immigrants Act 41 © 2012 Weaver Schlenger Mazel LLP
  42. 42. QUESTIONS AND ANSWERS © 2012 Weaver Schlenger Mazel LLP
  43. 43. Tips on Drafting Immigration Policies
  44. 44. Policy Tips • Ensure all employees treated consistently • Involve immigration counsel • Develop calendar for self audits for I-9s, H-1B Public Access Files and PERM compliance folders • Have system to be mindful of export control rules • Review contractor relationships • Consider E-Verify when appropriate
  45. 45. THANK YOU FOR JOINING US! © 2012 Weaver Schlenger Mazel LLP
  46. 46. For more information… Please contact: Flora Hoffman Lisa Baker Jones Laura J. Mazel Stephanie Smith