Immigration Overview. Immigration Terminology - Nonimmigrants. Immigration Terminology - Immigrants. Nonimmigrants = enter for temporary purpose

Transcription

1 Immigration Overview Kim Clarke Nina Thekdi Immigration Terminology - Nonimmigrants Nonimmigrants = enter for temporary purpose Must fit specific visa category requirements Generally no intention of abandoning foreign residence Must maintain requirements of category Duration of stay is governed by I-94 Immigration Terminology - Immigrants Immigrants = enter to remain permanently Must process through employment, family, humanitarian or lottery system May process inside or outside US Some categories require conditional permanent residence and petition to remove conditions Commonly known as green card 1

2 Immigration Terminology - Citizens Citizens Separate application process after permanent residence 5 year general eligibility 3 year for spouses of US citizens Immediate if military or US spouse working abroad English and US civics tests Oath of allegiance ceremony Right to vote and cannot be deported Immigration Terminology Visa vs Status Visa = Document to permit entry to US Processed at Consulates outside the US Status = authorization to be in US Governed by I-94 hard copy or electronic Nonimmigrant Classifications B = Visitor F-1 = Student H-1B = Specialty occupations E-3 = Specialty occupations (Australian citizens) L-1 = Intra-company transfer TN = NAFTA professional O-1 = Extraordinary Ability 2

3 B Purpose Allow individuals temporary US visits to Engage in non-employment business activities Business meetings/negotiations Attend conference/seminar Limited presentations with honorarium permitted Vacation Receive medical treatment Take a test B Requirements Nonimmigrant intent Financial resources to support stay May not receive a salary Remuneration from a U.S. source limited to expenses and honorarium B Process Visa Waiver Program May enter with passport a-waiver-program.html Visa Apply direct to Consulate Usually appointment and decision within few weeks Duration Up to six months initially Up to six month extensions 3

4 F Purpose Allow individuals temporary study in the US At SEVIS certified schools On-campus work authorization Curricular practical training (CPT) Optional practical training (OPT) F Requirements Admitted in degree program Financial resources to support tuition/stay Nonimmigrant intent Maintain full-time student status F Process Enroll/admitted to school I-20 issued Apply for visa at Consulate Usually appointment and decision within few weeks Duration Length of program plus Post-completion OPT period 12 month if not used >12 months CPT or pre-completion OPT 17 month STEM extension if employer if E-Verify 60 day grace period at end of stay 4

5 H-1B Purpose Allows employers to hire foreign nationals qualified to perform specialty occupations Faculty Scientists ITS Engineers Business positions scrutinized and best with technical function such as finance, marketing data analysis, accounting H-1B Requirements Bachelor degree or equivalent in specialized field Position requires similar specialized degree Prevailing wage H-1B Process Information Gathering Collect Information From Employer: Job title, description, work location and wage From Employee: Credentials, immigration, biographic and family information Assess options H-1B qualified Time left on H-1B In valid immigration status Timing issues 5

6 H-1B Pre-USCIS Processing Prevailing wage from DOL or OES Wage Survey Labor condition application On-line application with DOL Employer attests in labor condition application: Job classification, wage and work location 7-day process Employer posts labor condition application notice Public access file Documents to Employer/family to sign H-1B USCIS Processing Attorney prepares and files USCIS petition package with signed documents and supporting documents If request for evidence from USCIS is issued, gather information and prepare response Attorney receives and forwards decision Approval Denial - Assess options for appeal or different category H-1B Processing Timelines Standard processing: approximately 4-6 Months Premium processing: approximately 15 Days May file premium request with filing or any time before adjudication Request for evidence stops processing until response In standard case, 3-4 weeks after response In premium case, 1-2 weeks after response H-1B portability If in valid H status when petition filed May begin work with USCIS receipt notice Do not need to wait for approval notice 6

7 Current H-1B Costs Attorney Fees Approximately $2000 for initial filing Request for evidence hourly rates and cost varies based on issues within the request USCIS fees $325 filing fee $500 fraud detection fee $1500 training fee $290 filing fee for dependents Optional Premium: $1225 (employee may pay) H-1B Duration Three-year initial term and extension Six-year maximum EXCEPT If filed permanent residence before 6th year 1 year extensions beyond 6 years available if labor certification application filed 3 year extensions beyond 6 years available if immigrant visa approved E-3 Overview Only available to Australian citizens Purpose, requirements, information required and LCA process same as H-1B Two year initial duration and unlimited 2 year extensions available as long as ties to Australia exist Often move to H-1B to facilitate permanent residence for long term employees 7

8 E-3 Processing Attorney prepares and files Labor Condition Application (7 days processing time) and prepares petition package Applicant may process directly at consulate in Australia (no USCIS processing) Applicant enters US with E-3 visa Extensions may be filed with USCIS (process same as H-1B). E-3 Processing Timelines Consulate processing Approximately 3 business days for processing after interview USCIS processing (employees in US) Standard Processing: Approximately 4-6 Months Premium Processing: Approximately 15 Days Current E-3 Costs Attorney Fees Approximately $2000 Request for evidence hourly rates and cost varies based on issues within the request Consulate fees $390 visa fee for employee and each dependent USCIS fees (for extension) $325 filing fee $290 filing fee for dependents Premium Processing: $1225 (employee may pay) 8

9 L-1 Purpose Facilitate temporary transfer of key personnel for multinational companies Executives/Managers Specialized Knowledge Engineers Compliance personnel Other technical/scientific positions L-1 Requirements U.S. business and overseas business related through 50% common ownership Employee employed full time abroad for one year Position offered is managerial/executive or specialized knowledge L-1 Process Information Gathering Collect Information Job title, description, work location and wage Credentials, immigration, biographic and family information from Employee Assess options L qualified Executive/Manager vs. Specialized knowledge In valid immigration status Timing issues 9

10 L-1 USCIS Processing Attorney prepares and files USCIS petition package If a request for evidence from USCIS is issued, gather information and prepare response Attorney receives and forwards decision Approval Denial - Assess options for appeal or different category Blanket" petition for frequent users L-1 Processing Timelines Standard processing: approximately 4-6 Months Premium processing: approximately 15 Days May file premium request with filing or any time before adjudication Request for evidence stops processing until response In standard case, 3-4 weeks after response In premium case, 1-2 weeks after response Employee visa processing Approximately 3 business days for processing after interview Current L-1 Costs Attorney Fees Approximately $2000 Request for evidence hourly rates and cost varies based on issues within the request USCIS fees $325 filing fee $500 fraud detection fee (initial application) $290 filing fee for dependents Optional Premium: $1225 (employee may pay) 10

11 L-1 Duration Three-year initial term Seven-year maximum for L-1A Five-year maximum for L-1B TN Purpose Allow employers to employ Canadian/Mexican professionals in specific categories Faculty Scientists Engineers Accountants Management Consultants Scientific Technologists Others TN Requirements Canadian or Mexican Citizenship Bachelor degree in field related to category Management Consultant = degree or 5 years' experience Scientific Technologist 2 year scientific degree or training Work in support of degreed scientists/engineers 11

12 TN Process Information Gathering Collect Information Job title, description, work location and wage from Employer Credentials, immigration, biographic and family information from Employee Assess options TN category available Process at border or service center TN Border Processing Prepare support letter Assemble package and instructions Forward documents to employee to present May represent at border if concerns TN Service Center Processing Attorney prepares and files USCIS petition package with signed documents and supporting documents If request for evidence from USCIS is issued, gather information and prepare response Attorney receives and forwards decision Approval Denial - Assess options for appeal or different category 12

13 TN Processing Timelines Canadian border processing: immediate Mexican consulate processing: 2-3 weeks USCIS standard processing: 4-6 Months USCIS premium processing: 15 Days Current TN Costs Approximate Attorney Fees $1000 Canadian border processing $2000 Mexican consular processing $2000 USCIS Processing Processing fees: $56 Canadian border processing $160 Mexican consular processing USCIS fees $325 filing fee $290 filing fee for dependents Premium Processing: $1225 (employee may pay) TN Duration Three year initial term and extensions May extend indefinitely If maintain ties to Canada/Mexico Often move to H-1B to facilitate permanent residence for long term employees 13

14 O-1 Purpose Allows employers to hire foreign nationals possessing extraordinary ability O-1 Requirements Must satisfy minimum 3 of 10 standards USCIS prefers National or international awards Patents Publications with significant citations Reference letters from experts confirming individual is one of the top in the field O-1 Requirements Collect Information From Employer: Job title, description, work location and wage From Employee: Credentials, immigration, biographic and family information Assess options O qualified Other options In valid immigration status Timing issues 14

15 O-1 Process Information Gathering Collect Information From Employer: Job title, description, work location and wage From Employee: Credentials, immigration, biographic and family information Assess options O qualified Other options In valid immigration status Timing issues O-1 Pre-USCIS Processing Assist with reference letter drafting/review Document citations/awards Prepare and forward documents to Employer/family to sign O-1 USCIS Processing Attorney prepares and files USCIS petition package with signed documents and supporting documents If request for evidence from USCIS is issued (common in O petitions), gather information and prepare response Attorney receives and forwards decision Approval Denial - Assess options for appeal or different category 15

16 O-1 Processing Timelines Standard processing: 4-6 Months Premium processing: 15 Days May file premium request with filing or any time before adjudication Request for evidence stops processing until response In standard case, 3-4 weeks after response In premium case, 1-2 weeks after response Current O-1 Costs Attorney Fees Approximately $5000 Request for evidence hourly rates/cost varies based on request USCIS fees $325 filing fee $290 filing fee for dependents Optional Premium: $1225 (employee may pay) O-1 Duration Three-year initial term 1-year extensions No maximum EXCEPT must maintain extraordinary ability 16

17 Post-Approval Activity Complete/Update I-9 with expiration date Forward original approval notice to employee Docket expiration date and/or start date to consider permanent residence Travel issues Visa processing US Consulate outside US On-line visa application preparation Copies of petition and current employment confirmation May travel to and reenter from Canada/Mexico for less than 30 days with USCIS approval notice, valid passport and expired visa Permanent residence Standard process Three steps Labor certification application Immigrant visa Adjustment of status 17

18 Labor certification application Pre process Develop job title, description and requirements Employer/DOL minimum requirements Applicant must meet requirements Minimize red flags/scrutiny Special requirements Tailored to the applicant File prevailing wage request with DOL Labor certification application - Recruitment Standard Process State job order Internal posting 2 print ads 3 other recruiting events Standard = no American worker minimally qualified Special handling for faculty One on-line/print ad and internal posting Standard = best qualified Labor certification application - Processing On-line filing with Department of Labor Current processing approximately 8 months If audit 30 days to respond Extends processing by about a year Cannot withdraw during processing but may file a second application for different position 18

19 Immigrant Visa Requirements and Processing Requirements Confirm employee meets requirements Confirm Employer ability to pay Confirms preference category Processing Standard processing: approximately 6 Months Premium processing: approximately 15 Days Adjustment of Status Dependent on available visa number India/Chinese national backlogs EB-3 bachelor degree Review immigration/criminal history Travel restrictions if not in H or L visa status Results in permanent residence Permanent Residence Costs Labor certification application Approximately $ costs ($6000 if audited) Must be paid by employer Immigrant Visa Approximately $2000 May be paid by employee Adjustment of Status Approximately $3000 for primary applicant Approximately $2000 for each dependent 19

20 Permanent residence EB-1 process Extraordinary Ability 3 of 10 standards met Outstanding Professor/Researcher 2 of 6 standards met Tenure-track or permanent research position Multinational Executive/Manager Adjustment of status Permanent Residence Costs EB-1 Immigrant Visa Approximately $5000 for Extraordinary Ability Approximately $2000 for Multinational Manager May be paid by employee Adjustment of Status Approximately $3000 for primary applicant Approximately $2000 for each dependent Questions? 20

21 Form I-9 and Best Practices Kim Clarke Nina Thekdi Employer Work Authorization Obligation Not knowingly hire Not knowingly continue to employ Form I-9 is requirement and defense Pre-hire May not ask Citizenship/nationality Immigration status Type of work authorization Whether have green card 21

22 I-9 Process Verification of identity Verification of work authorization Verification obligation only requires reasonable inquiry; i.e. "You are not ICE Form I-9 Must use 5/7/2013 version Two page Optional information Form I-9 22

23 Form I-9 Form I-9 Section 1 1st Day of Employment Offer and Acceptance Every element of Section 1 must be completed by employee Section 1 must be signed and dated by employee Verify that Section 1 is complete: employer is liable for failure of employee to complete only not accuracy 23

24 24

25 Section 2 By 3rd of Employment Ask employee to present acceptable documentation from List A, or Lists B and C (list attached), to verify statement of employment authorization in Section 1 Expired documents are no longer acceptable forms of identification Remember that choice of documents is employee's Do not request more or different documentation Review documents: Do they appear genuine and to relate to presenter? Simply attaching copies of documents is not sufficient 25

26 I-9 Required Timeline Section 1 = By first day of employment Section 2 = By third day of employment Reverification Section 1 employment authorization expiration Section 2 employment authorization document only Reverify before expiration Do not reverify permanent residence card 26

27 Record Keeping Keep separate from other personnel records Retain I-9 for all current employees For terminated employees, retain for the later of three years from date of hire, or one year after employment is terminated, Not recommended to keep copies of documents presented unless required by E-Verify Form I-9 - Enforcement Actions USICE/HSI is enforcing agency but other agencies may refer for investigation I-9/Work Authorization Violations Penalties Actual knowledge of unauthorized employee Constructive knowledge of unauthorized worker Civil fines for paperwork violations Civil fines for knowing employment (actual or constructive) of unauthorized employee Criminal penalties 27

28 Form I-9 Enforcement Actions Response to ICE Audit Attorney 3-day response time may often be extended Self-audit Make corrections Memo summarizing self-audit with I-9s Form I-9 Enforcement Actions Response to ICE Raid Attorney Examine search warrant Cooperation Gather information from supervising agent/u.s. Attorney ask questions Assign company representatives to each agent Communication Form I-9 - Enforcement Results Corrections notice Must terminate notice Notice of suspect documents Civil/Criminal penalties ICE/HSI repeats audit until clean payroll or employer enrolls in E-Verify 28

29 E-Verify Electronically compares Form I-9 information to DHS and social security databases. Non-federal contractors may only use for new employees State law requirements not Michigan E-Verify Federal Contractors Required if contract includes E-Verify clause Clause requires E-Verify for all new employees and current employees who will work on the contract May elect to verify all employees E-Verify Employer Requirements May not use to pre-screen employees May not take action against employee while employee resolves case within time allotted Must notify DHS if decide not to terminate employee who receives final nonconfirmation 29

30 Questions? 30