Risks and rewards of immigration reform august 27, 2013


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Immigration Reform: Risks and Rewards

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Risks and rewards of immigration reform august 27, 2013

  1. 1. Rewards and Risks of Immigration Reform? Eliot Norman Williams Mullen Partner – International enorman@williamsmullen.com Ronald Adler President-CEO Laurdan Associates, Inc. radler@laurdan.com
  2. 2. Polling Question #1 #1: Does your company sponsor foreign employees for Green Cards or temporary work visas? > Yes, we regularly use these programs > Yes, we occasionally use these programs > No, but we would like to know more > No or not sure 2
  3. 3. Polling Question #2 #2 Does your company transfer personnel between U.S. Operations and your overseas offices? > Yes > No 3
  4. 4. Polling Question # 3 #3 Does your company use E-Verify? > Yes > No 4
  5. 5. It starts with the Politics > The Politics > Ends up with the Practical >And then gets complicated, including – unintended or intended consequences of trying to reform a broken system: – impact on recruitment and retention of global talent – increased enforcement against employers, large & small 5
  6. 6. The Politics of it All? 6
  7. 7. Table of Contents: I: It Starts With the Politics : The First 6 months Jan-June 2013 – Slide 6 II: The Potential Impact on Your Company – Slide 28 III : Substantive Changes to Business Visas - Slide 38 IV: The Impact on Companies: Problems or Improvements for L-1Bs and H-1Bs – Slide 43 V: Impact on Global Businesses: Temporary Business Visas: What’s New Under Immigration Reform? – Slide 54 VI: Impact on Companies: Business Green Cards – Slide 59 VII: Impact on Companies: Miscellaneous Reform Provisions – Slide 68 VII: Worksite Enforcement – Slide 71 VII: Immigration Issues under REFORM: Implications for HR Professionals – Slide 74 VIII: The House of Representatives etc. – Slide 97 IX: Last Thoughts? - Slide 113 7
  8. 8. Let’s Review First 6 months The day after the President cites immigration reform among policy priorities in his inaugural address, immigration advocacy groups urge Washington to act. Reaction? Where was Obama? OFF TO ROCKY START 8
  9. 9. The troubles I have seen 9
  10. 10. 10
  11. 11. And the NSA….. 11
  12. 12. April 2013: Foreign Terrorists Attack >Boy, 8, one of 3 killed in bombings at Boston Marathon; 176 wounded April 18, 2013 >Bombing Manhunt for Chechen Brothers Shuts down City, 700,00 persons locked in homes 12
  13. 13. To the Rescue? 13
  14. 14. Gang of Eight : April 2013: 8 Senators Say Boston No Excuse To Nix Immigration Deal | Fox News ... 14
  15. 15. Why the Bipartisan effort? 15
  16. 16. 16
  17. 17. 17
  18. 18. Path to Citizenship 18
  19. 19. SO Republicans Strike “The Grand Bargain” >Path to citizenship for 11 million illegal immigrants “OK BUT MAKE IT TOUGH AND LONG”: and >In return : GIVE US BORDER SECURITY. 19
  20. 20. How Tough? Road to citizenship: 13 years 20
  21. 21. Maybe this approach solves this Dilemma? 21
  22. 22. 22
  23. 23. 23
  24. 24. Border Security: became the key issue > The bill’s largest, and perhaps most critical, change came in a package that promised to substantially bolster security along the nation’s southern border. The proposal, by Senators Bob Corker of Tennessee and John Hoeven of North Dakota, both Republicans, would devote about $40 billion over the next decade to border enforcement measures, including adding 20,000 Border Patrol agents and 700 miles of fencing along the southern border. > The amendment, which passed with broad bipartisan support, helped bring along more than a dozen reluctant Republicans on S. 744 24
  25. 25. So where were we at the end of June 2013? > Gang of Eight Working away From April to June > Absent from Scene: President Obama > Judiciary Committee vote 15-5 > Vote against Filibuster 82-17 > 300 Amendments: nearly all defeated > CBO report: Deficit reduction $300 billion > Final Vote June 27. Comprehensive Legislation was becoming a reality? 25
  26. 26. Victory? 68-32 in the Senate >WASHINGTON — Here’s how the Press Reported it: “The Senate on Thursday (June 27) approved the most significant overhaul of the nation’s immigration laws in a generation with broad support generated by a sense among leading Republicans that the party needed to join with Democrats to remove a wedge between Republicans and Hispanic voters.” 26
  27. 27. What did the Senate Actually Approve? >Like ObamaCare, got to ask: what’s in this Blue Box? 27
  28. 28. II: The Potential Impact on Your Company? RULE OF UNINTENDED CONSEQUENCES: BUTTERFLY EFFECT 28
  29. 29. 2 Bargains in S. 744 The Grand Bargain (with huge debate) – Path to citizenship for 11 million illegal immigrants in return for – Sealing the Border: The Small Bargain (with little debate) > acceleration and expansion of all sorts of business visas: goal of helping U.S. businesses recruit & retain global talent. But at a cost… and > Worksite Enforcement inside the USA: Mandatory EVerify Both could have a profound impact on use of human capital by U.S. companies 29
  30. 30. 30
  31. 31. Foreign Components/Engineering 31
  32. 32. The New Southeast U.S. Aerospace Cluster > Mobile, AL (Airbus) > Savannah, GA (Gulfstream-General Dynamics) > Charleston, SC (Boeing) > Greensboro, NC (Hondajet) > Durham, NC (GE Aviation) > Richmond/Petersburg, VA (Rolls-Royce) > Melbourne, Fla (Embraer) 32
  33. 33. What the Bill did not do: Attention! Homeland Security remains in charge of immigration to the USA 33
  34. 34. Did nothing about Multiple Government Agencies > WSJ article: the slowdown > attitude of CBP > Split of Authority: State Dept; Labor; ICE; CBP; and USCIS >Can the agencies keep up with the demand? > 50 million and counting 34
  36. 36. Embassy of the United States of America Visa Branch 2, Avenue Gabriel 75008 Paris, France VIA E-MAIL TRANSMISSION Date: 12-Jun-13 Mr. Eliot Norman Attorney at Law William Mullen (Richmond) 200 South 10th Street, Suite 1600 Richmond VA 23219 Reference number: 2013163 843 1 Treaty Investor/Treaty Trader Treaty Investor/Treaty Trader Dear Mr. Norman: As you are aware, as part of the visa application process, an interview at the embassy is required for visa applicants from age 14 through 79. As a consequence, Mr. and his spouse have been scheduled to come for an interview on 15-Jul-2013 at 01:30 PM. They will meet our Treaty Visa Officer. In a few days, using the above-noted reference number you may view the status of this application on our website at http://france.usembassy.gov Pending visas “Treaty Trader Investor visas.” Should you have any questions about this application or need to reschedule the appointment, please do not hesitate to contact us by e-mail directly to parisev@state.gov to ensure rapid processing. Sincerely, E Visa Unit Non Immigrant Visa Branch American Embassy Paris 36
  37. 37. State Dept. Reforms >Why now? Overload on system >Eliminate visa interviews? >Revalidate visas without leaving the USA? >Time limits on adjudication of visas, and waiting times for visa interviews? >Retreat from DHS mentality: screen everyone 37
  38. 38. III: SUMMARY of Substantive Changes to Business Visas 38
  39. 39. Titles II & IV to Senate Bill 744: Substantive Changes to Business Visas >New Rules for Business Visitors >Liberalization of Quotas for H-1Bs >New Types of Visas: Business lobby has intervened successfully for multinationals , U.S. and foreign >Relief for Backlogs in Green Cards (Title II) > STEM Graduates = automatic Green Cards >IMPACT: Will affect Visa Choices >Will affect short-term and long term strategies 39
  40. 40. This is where is all starts 40
  41. 41. The Visa Pyramid GREEN CARDS L-1A/L-1B, E1/E2 Investors/ Treaty Traders TN, H-1B/O-1 B-1/ F-1/J-1/H-3, H-2B 90 Day ESTA Visa Waivers B-1 Business Visitors (B/2) (tourists) 41 EB-1 Multinational Managers/Executives & EB-1 Extraordinary Ability and Outstanding Researchers; EB2/3 PERM Labor Certifications for professionals, skilled workers leading to Green Cards; EB2 Green Cards for National Interest Waivers, FAMILY SPONSORSHIP (marriage to U.S. Citizen or, Green Card Holder; Diversity Lottery. EB-5: $500,000 Investors EXECUTIVES, MANAGERS, Specialists and EssentialSkills Employees for U.S. Offices of International Companies PROFESSIONALS; Extraordinary Ability Scholars & Scientists TRAINEES & FOREIGN STUDENTS Research Scholars & Specialists; Temporary workers , VIE , Interns. BUSINESS VISITORS: Negotiate Contracts, Consult; Trainees, Install Equipment if Purchased Overseas; Visa Waiver B-1 au lieu de H-1B: 6 month project requiring professional services.
  42. 42. Summary: the Big Changes > > > > > > > > 42 Current Choices B-1 ESTA Visa Waiver E-2/E-1 H-1B L-1A or L-1B TN Green Cards – EB1 – EB2 and EB3 – EB 5 > > > > > > > > Reform B-1 ESTA Visa Waiver E-2/E-1 H-1B L-1A or L-1B TN Green Cards** – EB1 – EB2 and EB3 – EB5
  43. 43. IV: The Impact on Companies Hiring Global Talent : Problems or Improvements for H-1Bs? And L-1Bs? 43
  44. 44. H-1B Visas for Specialty Occupations: > A very practical visa when it works > The Role of DOL > Procedures: the LCA > The CAP or Quotas: The major problem area > 65,000 plus 20,000 for graduates of U.S. Universities holding advanced degrees (M.A. M.S. Ph.D) per year. – 2011 – 2012 – 2013 > Gov. Fees: $2325 plus $1225 premium + $1800 for lawyers 44
  45. 45. H-1B Visas for Specialty Occupations: The Reform Advantages : > Quotas or Caps going from 65,000 a year to between 115,000 and 180,000 based upon demand and usage > + STEM advanced degree graduates: 25,000 exempt from quota > Spouses can work on the H-4 > However, a political compromise adds costs/burdens 45
  46. 46. H-1B Changes under Reform >Disadvantages : Changes to Protect U.S. Workers > New Fees: $1000 LCA fee; and $1250 to $2500 CIR Trust Funds Fee > Must Advertise position on DOL Website for 30 days > 4 level wage structure changes to 3 levels, eliminating Level 1 (increase in salaries by average of $18,000 or 20%) > For Dependent H-1B Employers: must pay at Level 2 prevailing wages= 30% + increase in salaries. > Adds attestation that hiring is not to displace U.S. worker for H-1B for certain employers, including public school systems > $500 surcharge for H-1B workers performing outsourcing or contract services > H-1B dependent employers: must show offered job to U.S. workers before filing for H-1B > Expected Result: Enhanced DOL complaint enforcement, Audits . Overall Results: Mixed at best 46
  47. 47. Current Choices: Use of L1Bs, L-1As, H-1Bs, E-2s for Intra-Company Transfers X&Z Aerosupply SA Toulouse , France Managers, Executives Software Developers Electrical Engineers Project Managers and Composites Engineers X&Z Aerosupply, Ltd. Bucharest, Romania 47 Specialists X&Z Aerosupply , Inc. Mobile, Alabama USA (AIRBUS VILLAGE)
  48. 48. L-1B and L-1As (IntraCompany Transfers) The Current Procedure advantages, criteria and procedures case examples : New office L-1 Blanket Procedures streamlined Problem Areas: % Requests for Evidence ? « Specialized Knowledge » Working at Client Sites Fees: $1225 plus $325 Plus $500. OR • Blanket Fees: $500 > • • • • • • • • 48 Under the Reform – Increased Fees $500 for STEM Education/Training – Work at client sites to be prohibited, no outsourcing – Specialized knowledge standards will it be impractical? – New standards: New Office L-1s – DOL/DHS Audits – New class of Dependent H1B/L-1 employers with fees of $5000 to $10,000 per worker
  49. 49. Strategic Solutions under Reform > Treaty or Consular Visas instead of H-1Bs and L-1Bs. > E-2s « essential skills » & executives/sr. Managers > TNs : systems analysts, eng techs; mngt consultants as independent contractors. > If an L-1, must be Blanket > actually a good strategy today given restrictive interpretation of H1-Bs and L-1Bs. 49
  50. 50. Impact on our Aerospace Supplier 50
  51. 51. 51
  52. 52. Case Illustration Under Immigration Reform: USE NAFTA TN or E-2, even B-1(international contracts eXception) (Avoid L-1Bs and H-1Bs) X&Z Aerosupply SA Toulouse , France Managers, Executives Software Developers Electrical Engineers Project Managers and Manufacturing Managers & Engineers X&Z Composites Manufacturing Monterey, Mexico 52 X&Z Services Engineering , SA Montréal, Québec Engineers Specialists X&Z Aerosupply , Inc. Mobile, Alabama USA (AIRBUS VILLAGE)
  53. 53. The Reform and the Treaty Visas > Summary: Reform either does not affect or actually encourages Treaty Visas: Examples E-2 /E-1 and NAFTA TN (Mexico/Canada) Availability of Accelerated E-1/E-2 Processing NAFTA & Free Trade Agreements Chile, Australia and Singapore: Special H-1Bs or E-3s under Fast-Track FTAs (Free Trade Agreements) – New E-3 for Ireland; E-4s of 5000 per country; E-5 for South Korea; E-6 for Africa and Caribbean > Superiority of Treaty Visas over H-1Bs and L-1Bs > Where possible, adopt Global Strategies to avoid USCIS/DOL –based visas. – Use Fast-Track E-2s; Blanket L-1s, B-1s, TN, other Treaty Visas – – – – 53
  54. 54. V: Impact on Companies: Temporary Business Visas: What’s New under Immigration Reform? 54
  55. 55. Visas: Practical Solutions for Business Visitors > Existing Reforms in use of B-1 type visas – Visa Waivers (ESTA); – Can work under B-1 in support of international supply agreement: installation, warranty work if part of contract etc. – B-1 in lieu of H-1B (example: design engineers) • professional position • project for less than 6 months • compensation: from overseas • Case examples 55
  56. 56. What’s New? >B-1 Multinational Managers/Executives: – Can come for up to 180 days to oversee U.S. operations, participate in leadership training, Compensation from abroad. >Z visa: benefits airlines, cruise lines, other transportation companies, ex. MRO facilities, repair or warranty work on foreign equipment for up to 180 days. >Parallels U.S. State Department Initiative: B-1 in lieu of H-1B: up to 180 days for professionals working on short-term projects 56
  57. 57. What else is New?: Nonimmigrants >W Visas: Sponsorship of low and middleskilled positions – example: assemblers, welders for our aerospace company – 20,000 to 75,000, up to even 200,000 per year? – Eliminates proving seasonal need – Existing H-2B program, just not workable anymore >Agricultural Workers W-1 and W-2 57
  58. 58. What’s New ? >X visas: rationale? – For Start-ups, foreign grads of U.S. universities or direct applicants from abroad – X Visa for 3 years: – Criteria • Attract Venture Capital of $100,000 from qulified investors or • Generate at least $250,000 in revenues or • Create at least 3 jobs for U.S. workers. 58
  59. 59. VI: Impact on U.S. COMPANIES: Business Green Cards 59
  60. 60. 60
  61. 61. Existing Process: THE PROBLEM.PERM hurdle. Timing: All 3 steps: 10 years + for EB3 from India 61
  62. 62. Demystifying green Cards > EB1: multinational managers/executives, extraordinary ability, outstanding researchers >EB2 : M.A. M.S. PhD. 3 steps with PERM > EB3: B.S. B.A. or skilled workers (2 yrs. Exp.) and unskilled (3 steps with PERM) >See Green PDF Handout >Changes under Reform System ? > Avoids DOL PERM > Accelerates process by eliminating quota backlogs (problem of priority dates) or granting broad exemptions 62
  63. 63. What’s New? Instant or Accelerated Green Cards > Recent STEM foreign graduates from U.S. Universities with advanced degrees plus PhDs in any field > > > > 63 – exempt from numerical quotas – NO PERM (Labor Certification) – employable in 90 days under Green Card Application – compare with 2-10 year PERM to GC process. Multinational Managers and Executives can self-petition; so can Ph.Ds and NIW EB-1 Multinational Managers/Executives still a strong option ; exempt from quotas Premium Processing for all employment cases Reference: PDF Handout: G.C. Chart
  64. 64. Green Card Quotas and Priority System What if my candidate is not quota exempt? > Reform eliminated per country quota limitation of 7% (problem for India, China, etc.) > Family members no longer to be counted AND > 40% for Graduate Degrees, EB-2 or higher > 40% for EB3 (B.S. or B.A. degree or skilled workers and unskilled workers if visas available) > 10% Entrepreneurs and investors > 10% special immigrants 64
  65. 65. What’s New: Employment Based Green Cards >Acceleration of Green Card issuance: – For EB3 India: from 5-10 years to 1-2years >New Strategy: Think Green Cards First, temporary visas second for certain types of employees based upon educational qualifications (STEM or PhD) > Put the Visa Pyramid upside down Green Cards : First 65
  66. 66. Practical Case under Use of Green Cards for IntraCompany Transfers X&Z Aerosupply SA Toulouse , France Managers, Executives Software Developers Electrical Engineers (U.S. Educated ) Project Managers and Composites Engineers and Assemblers X&Z Aerosupply, Ltd. Bucharest, Romania 66 Specialists X&Z Aerosupply , Inc. Mobile, Alabama USA (AIRBUS VILLAGE)
  67. 67. What’s New: « Invest »Green Cards: Reform not just about Multiatnionals > Recognition of immigrant origins of Silicon Valley and Fortune 500 > One Goal: Capture STEM grads > EB-6 Entrepreneur Green Cards 10% of total: > 2 years as nonimmigrant > Raise at least $500,000 in Venture Capital or > Generate $750,000 in revenues EB-5 $500,000 Investment Green Card made permanent – can be source of financing for U.S. projects – Investors sold minority interest, typically limited partnership unit 67
  68. 68. VII: RISKS of Immigration Reform: worksite Enforcement/Audits (the other part of the bargain) 68
  69. 69. Internal Security: Worksite Inspections and 69
  70. 70. Senate Timetable: E Verify > 1 year: companies part of « critical infrastructure » > 2 years 5000+ employees > 3 years 500+ > 4 years all other employers > 5 years all Social Security Cards: Tamper proof > strengthen antidiscrimination measures and employee’s right to sue > no prohibition on copycat state laws 70
  71. 71. Worksite Enforcement 71
  72. 72. Worksite Enforcement: Why Now? > Audits, particularly H-1Bs under Reform > Fines, criminal enforcement will continue > 1099s, IRS et ICE as 11 million come out of the shadows > 20% or more of 11 million entered as visitors and overstayed and will show up to work for you. Border security is not whole answer. More will enter legally and seek to work illegally. ICE will come to your worksite. > “Photo tools” posted in USCIS database > I-9s and their completion: still a challenge (See pdf) > No liability if act in good faith based on EVS 72
  73. 73. Compliance Headaches or worse > Requires systematic approach to Compliance 73
  74. 74. #23195736 Presented by Ronald Adler President-CEO Laurdan Associates, Inc. © 2012 Laurdan Associates, Inc. All Rights Reserved 74
  75. 75.  Ronald Adler is president-CEO of Laurdan Associates, Inc., a veteran-owned human resource management consulting firm specializing in HR audits, employment practices liability risk assessments, HR metrics, strategic HR, and unemployment insurance issues. Mr. Adler is the co-creator of ELLA®, the Employment-Labor Law Audit™, the nation’s leading HR auditing process. Mr. Adler is an adjunct professor at Villanova University where he teaches graduate courses in HR auditing and HR management. Mr. Adler currently serves as a subject matter and consulting expert to SHRM and serves on taskforces developing professional standards in performance management and human capital measurement. © 2012 Laurdan Associates, Inc. All Rights Reserved 75
  76. 76.    “Immigration” will remain a hot bottom issue for workplace audits and work site enforcement In a meeting with operations managers, recent audits by ICE of your organization’s competitors raised questions about your organization’s vulnerability. What answer do you give? What proactive recommendations do you have for your managers? © 2012 Laurdan Associates, Inc. All Rights Reserved 76
  77. 77.  Does your organization have a policy addressing immigration issues? ◦ Yes, we regularly assess our policy to ensure it is aligned business objectives and complies with all federal and state laws ◦ Yes, but we haven’t reviewed our policy in the last two years ◦ No. ◦ Not sure © 2012 Laurdan Associates, Inc. All Rights Reserved 77
  78. 78. President Obama in 2009:“We can't continue with a broken immigration system. It's not good for anybody. It's not good for American workers. [We need to be] taking seriously the violation of companies. That’s again something we can start doing administratively.” Immigration Reform in 2013: Employer Worksite Enforcement is at the heart of the legislation affecting businesses President Obama at a Press Conference on April 29, 2009 © 2012 Laurdan Associates, Inc. All Rights Reserved 78
  79. 79. In the world-is-flat economy, the hallmark of successful organizations is their ability to respond to and satisfy an increasingly diverse marketplace…this requires an increasingly diverse work force. © 2012 Laurdan Associates, Inc. All Rights Reserved 79
  80. 80. “The human capital risk is the biggest threat facing organizations worldwide…it is also one of the least effectively managed” (businessinsurance.com, June 1, 2007) © 2012 Laurdan Associates, Inc. All Rights Reserved 80
  81. 81. An organization’s immigration policy and practices can have a positive or negative effect on its ability to attract and retain top performers, key employees, and critical skills. © 2012 Laurdan Associates, Inc. All Rights Reserved 81
  82. 82. “ We need to place renewed focus on employers to ensure that they are playing by the rules…This focus should include more routine use of civil sanctions…and we should continue to develop programs such as E-Verify to encourage compliance.” John Morton, the new Director of ICE, at his Senate Confirmation Hearings, April 23, 2009 REFORM: continues that approach. © 2012 Laurdan Associates, Inc. All Rights Reserved 82
  83. 83.  “[E-Verify is] a cornerstone of workplace enforcement across the country…[and] is an essential tool for employers to maintain legal compliance.” Testimony by DHS Secretary Napolitano at congressional hearings in May 2009 © 2012 Laurdan Associates, Inc. All Rights Reserved 83
  84. 84.  “In F/Y 2011, employers nationwide were ordered to pay nearly $10.5 million in civil fines for hiring violations. In addition, criminal charges were filed against a record-breaking 221 owners, employers, managers and/or supervisors – up from 196 in fiscal year 2010.”  ICE arrests criminal aliens following employment verification audits © 2012 Laurdan Associates, Inc. All Rights Reserved 84
  85. 85.    St. Louis industrial supply company sentenced for employing illegal aliens (Forfeiture of $150,000 and 2011Toyoda Highlander and one year of probation) Wash. herb grower fined $1 million for knowingly employing illegal aliens (Five years probation) Owners of Bay Area restaurant chain sentenced for tax violations, hiring illegal aliens ($2.2 million in restitution and 41months in jail) © 2012 Laurdan Associates, Inc. All Rights Reserved 85
  86. 86.      With or without REFORM, increased governmental emphasis and audit activities ◦ Increasing audit activities by ICE, DOL, IRS, EEOC, OFCCP Expanding state requirements (20 states require the use of E-Verify) Economic conditions Changing regulatory perspective Social and political pressure © 2012 Laurdan Associates, Inc. All Rights Reserved 86
  87. 87.  Does your organization assess the risks and liabilities associated with immigration related issues? ◦ ◦ ◦ ◦ ◦ Yes, we regularly assess the risks and liabilities Yes, we occasionally assess the risks and liabilities No Not sure What risks and liabilities? © 2012 Laurdan Associates, Inc. All Rights Reserved 87
  88. 88.       Immigration policies and procedures have a negative effect or positive effect on talent management Immigration policies and procedures expose the organization to discrimination claims Immigration policies and procedures expose the organization to negligent hiring claims for hiring illegal aliens Payroll policies misclassify independent contractors Immigration policies and procedures result in criminal prosecution of management for violating the immigration laws © 2012 Laurdan Associates, Inc. All Rights Reserved 88
  89. 89.   Immigration policies are not aligned with business objectives and strategies Immigration policies and procedures have a material effect on revenue and the bottom line 1) Fines and penalties (substantial) 2) Debarment, non-payment, asset forfeiture 3) Loss of business license 4) Higher insurance costs © 2012 Laurdan Associates, Inc. All Rights Reserved 89
  90. 90.  Immigration Reform and Control Act of 1986 (IRCA) ◦ Purpose: To control illegal immigration by imposing sanctions against employers that knowingly employ aliens that are not authorized to work in the United States ◦ Requires employers to document each employee’s employment eligibility ◦ Prohibits the knowing employment and retention of an unauthorized alien ◦ Imposes sanctions again employers that discriminate against workers on the basis of national origin, citizenship status, or submitted verification documents  REFORM: Continues and further emphasizes those obligations © 2012 Laurdan Associates, Inc. All Rights Reserved 90
  91. 91.  Form I-9, Employment Eligibility Verification ◦ Purpose: All U.S. employers must complete and retain a Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and relate to the individual and record the document information on the Form I-9. © 2012 Laurdan Associates, Inc. All Rights Reserved 91
  92. 92.     Other federal requirements: H-1Bs ◦ Pay the prevailing wage ◦ Obtain Labor Condition Application approval ◦ Create a Public Access File REFORM: new Posting and Attestation Requirements for H-1Bs DOL enforcement and private litigation over payment of prevailing wages DOL annual enforcement audits © 2012 Laurdan Associates, Inc. All Rights Reserved 92
  93. 93.  Anti-Discrimination Notice: “It is illegal to discriminate against any individual (other than an alien not authorized to work in the United States) in hiring, discharging, or recruiting…because of that individual’s national origin or citizenship status. It is illegal to discriminate against work-authorized individuals…The refusal to hire an individual because the documents presented have a future expiration date may also constitute illegal discrimination.” © 2012 Laurdan Associates, Inc. All Rights Reserved 93
  94. 94.   E-Verify: An internet-based compliance procedure that helps ensure the work authorization of an individual by checking the individual’s employment eligibility against DHS and SSA data bases. HR Audit Procedures © 2012 Laurdan Associates, Inc. All Rights Reserved 94
  95. 95. 1. 2. 3. 4. 5. The organization has developed immigration policies and practices Immigration policies are aligned with business and talent management objectives Immigration policies and practices ensure compliance Immigration related processes produce reports on the achievement of immigration issue goals Management monitors the organization’s immigration issues processes © 2012 Laurdan Associates, Inc. All Rights Reserved 95
  96. 96. 6. 7. 8. 9. Management reviews immigration issue metrics The organization conducts regular audits of I-9, E-Verify, H-1B procedures and forms and other immigration visas and documents The organization conducts tests to ensure that immigration related documents are secure, properly retained, and properly destroyed The organization conducts internal audits to ensure that immigration & visa policies and procedures are being followed © 2012 Laurdan Associates, Inc. All Rights Reserved 96
  97. 97. VIII: Next steps and Legislative Strategies (in the House of Representatives) 97
  98. 98. 98
  99. 99. The House of Representatives > What happens next? > House of Representatives > Future of the House « Gang of Seven »? >Bipartisan Bill =Comprehensive Reform’ or Series of Separate Bills without Path to Citizenship for all 11 million? >Conference Committee? >Key Players? 99
  100. 100. 100
  101. 101. 101
  102. 102. HOUSE Legal Workforce Enforcement Act : > Key Components of the Legal Workforce Act: Repeals I-9 System in 36 months. Repeals the current paperbased I-9 system and replaces it with a completely electronic work eligibility check, bringing the process into the 21st century. Repeals 8 USC 1324a. > Gradual Phase-In: Phases-in mandatory E-Verify participation for new hires in six month increments beginning on the date of enactment. Within six months of enactment, businesses having more than 10,000 employees are required to use EVerify. Within 12 months of enactment, businesses having 500 to 9,999 employees are required to use E-Verify. Eighteen months after enactment, businesses having 20 to 499 employees must use E-Verify. And 24 months after enactment, all businesses having 1 to 19 employees must use E-Verify. 102
  103. 103. Legal Workforce Enforcement Act > Agriculture: Requires that employees performing “agricultural labor or services” are only subject to an E-Verify check within 24 months of the date of enactment. > States as Partners: Preempts duplicative state laws mandating E-Verify use but retains the ability of states and localities to condition business licenses on the requirement that the employer use E-Verify in good faith under the federal law. In addition, the bill allows states to enforce the federal E-Verify requirement and incentivizes them to do so by letting them keep the fines they recover from employers who violate the law. 103
  104. 104. House: Legal Workforce Enforcement Act > Protects Against Identity Theft: The bill allows individuals to lock their Social Security number (SSN) so that it can’t be used by another person to get a job. It also allows parents or legal guardians to lock the SSN of their minor child. And if a SSN shows unusual multiple use, the Department of Homeland Security is required to lock the SSN and alert the owner that their personal information may have been compromised. > Safe Harbor: Grants employers a safe harbor from prosecution if they use the E-Verify program in good faith, and through no fault of theirs, receive an incorrect eligibility confirmation > 22-9 in House Judiciary Committee 104
  105. 105. New House Legislation >House Judiciary Committee Approves HighSkilled Immigration Bill >Washington, D.C. – The House Judiciary Committee today approved the Supplying Knowledge Based Immigrants and Lifting Levels of STEM Visas Act (H.R. 2131), also known as the SKILLS Visa Act,in a vote of 2014. 105
  106. 106. House Skills Visa Act 106
  107. 107. House Skills Visa Act > This bill provides American employers with access to the world’s best talent by allocating green cards to foreign graduates of U.S. universities with advanced degrees in science, technology, engineering, and math (STEM) fields, increasing H-1B visas, and repealing the employment-based per-country cap. > The bill facilitates job creation by establishing a new entrepreneur visa program and strengthening the investor visa program. The bill accomplishes these changes to our immigration system by replacing nonessential immigration programs with those that better meet our country’s interests. The bill also contains a market-based approach to protect American workers 107
  108. 108. HOUSE SKILLS VISA ACT > Rep. Issa: “The Committee’s approval of the SKILLS Visa Act furthers an effort to ensure that immigration reform benefits our economy and the creation of American jobs. America is already home to many of the world’s best and brightest individuals. The SKILLS Visa Act is a win-win for the United States. It allows immigrants who graduate from American universities with advanced degrees in STEM fields to remain here and use their talents to make this country a better place. It also helps to provide workers in many highly-skilled technical areas where our nation is currently experiencing shortages. This bill will help to grow our economy and help us to retain the best and brightest individuals. “ 108
  109. 109. House SKILLS VISA ACT > Key Components of the SKILLS Visa Act: Parallel those in the S. 744 > Increases Green Cards for STEM Grads: The SKILLS Visa Act allocates up to 55,000 green cards a year for employers to petition for foreign graduates of U.S. universities with advanced degrees in STEM fields. > Increases and Strengthens H-1B Visa Program: The SKILLS Visa Act increases the H-1B visa cap for high-skilled workers to 155,000 and increases the special pool of visas for foreign advanced graduates of U.S. universities to 40,000. The bill contains enhanced anti-fraud provisions and allows H-1B spouses to work. > Market-Based Approach to Protect American Workers: The bill improves the prevailing wage calculation to better protect American workers and extends the prevailing wage protection to similar visa programs. 109
  110. 110. House Skills Visa Act > Provides Entrepreneur Visas: The bill allocates up to 10,000 green cards a year for alien entrepreneurs who can attract investment from venture-capital firms to establish businesses that will create at least five jobs or have already created five jobs over 10 years through the E-2 treaty investor program. > Strengthens Investor Visa Program: The bill strengthens the investor visa green card program by making the regional center pilot project permanent, indexing investment requirements for inflation, and adding anti-fraud protections. 110
  111. 111. House Skills Visa Act > Eliminates Arbitrary Caps: The bill eliminates the employment-based green card per-country cap, allowing American employers to have access to the best talent. > Keeps Families Together: The bill allocates an additional 25,000 green cards a year to the spouses and minor children of permanent residents. It also raises the family-sponsored per-country cap. > Makes Immigration System Smarter: The bill repeals the diversity lottery green card program, which is a magnet for fraud and poses a national security threat. > More information about the bill: http://issa.house.gov/skills/ 111
  112. 112. August: Progress? Future? 2013 or 2015? House Senate Administrative Action whether Comprehensive REFORM Passes or Fails or passes piecemeal. > Chuck Schumer: “OK with piecemeal immigration approach” > Rep. Goodlatte: holds the keys? > > > > > 112
  113. 113. IX: Final Thoughts 113
  114. 114. Guiding Principles > Whatever the outcome of REFORM, make individualized choices when applying for visas based upon each case’s circumstances > Avoid just repeating what you did last year. What worked last year will not necessarily keep working. > Agencies « de facto: » are following « cues » from REFORM efforts: 114
  115. 115. Final Considerations 1. 2. Flexibility Big surprise: make early and effective use of Green Cards to bypass H-1B and L-1 headaches and complications 3. E-2 accelerated visa programs (if your company meets criteria) : for companies with foreign ownership 4. Stay with Treaty or State Dept. Visas over Congressional Visas: TN, E-2, B-1, J-1, Blanket L-1s 5. Portability: employment agreements will be of added importance (confidentiality, non-compete) 6. Consider more use possible of short term visas for productive work (B-1 in lieu of H-1B) 7. Use of Green Cards will accelerate for the hiring foreign talent coming out of U.S. universities 8 . Expect audits and investigations, now is the time to have HR risk compliance procedures in place 115
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  118. 118. Under Comprehensive or Piecemeal Immigration Reform: Strategic Planning Will Be The Priority 118
  119. 119. Eliot Norman Bio Eliot Norman has focused his practice on immigration law and advising on inbound U.S. investment projects from Europe and Asia since 1986. He regularly advises technology, staffing, manufacturing, and multinational corporations on recruiting and retaining global talent. As a former federal prosecutor, he also counsels clients on compliance with I-9 rules and Homeland Security enforcement measures. Mr. Norman also enjoys helping movie producers move cast and crew around the world. Eliot Norman speaks French fluently and works closely with large and small companies from Quebec and France. He is a graduate of Yale College, Boston College Law School and earned a Certificat from the Institut d’etudes politiques, Paris, France. With approximately 250 attorneys and 10 offices in North Carolina, Virginia and Washington, D.C., Williams Mullen professionals deliver innovative solutions to support its clients’ diverse business activities throughout the United States. Close working relationship with clients has been the foundation of its progressive approach to law practice since the firm’s founding in 1909. Williams Mullen regularly advises corporate clients on all aspects of establishing and expanding their operations in the United States, including immigration, customs, company formation, Export Controls and related issues. 119
  120. 120. Questions? Eliot Norman enorman@williamsmullen.com Williams Mullen 1666 K Street NW Suite 1200 Washington DC 20006 Direct Dial: 804.420.6482 www.williamsmullen.com Ronald Adler President-CEO Laurdan Associates, Inc. 2305 Glenmore Terrace Rockville, MD 20850 +1 301.762.5794 +1 240.238.2807 (fax) radler@laurdan.com www.laurdan.com www.ellaontheweb.com 120