U.S. Business Immigration Law for Non Immigration Lawyers

Transcription

1 U.S. Business Immigration Law for Non Immigration Lawyers Thursday, September 25, a.m. Noon Oregon State Bar Center Tigard, Oregon 3 General CLE credits

2 U.S. BUSINESS IMMIGRATION LAW FOR NON IMMIGRATION LAWYERS The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright 2014 OREGON STATE BAR SW Upper Boones Ferry Road P.O. Box Tigard, OR U.S. Business Immigration Law for Non Immigration Lawyers ii

3 TABLE OF CONTENTS Schedule v Faculty vii Presentation Slides U.S. Business Immigration Law for Non Immigration Lawyers iii

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5 SCHEDULE Presented by F Patricia Haim, Ogletree Deakins Nash Smoak & Stewart PC, Portland F Dagmar Butte, Parker Butte & Lane PC, Portland 8:00 Registration 9:00 I-9 Forms and Related Enforcement Issues for Employers F Compliance F Penalites F Traps for the unwary Employment-Based Nonimmigrant (i.e., Temporary) Work Visas F Why a B (Visitor s) visa almost always won t do F L-1 visas intracompany transferees F TN visas professionals under NAFTA F O visas persons of extraordinary ability or achievement F E visas treaty investors and treaty traders F H visas specialty occupations Employment-Based Permanent Residence F Overview of employment-based immigrant visas F Employment-based quotas, backlogs, and the Visa Bulletin F Immigrant visa applications requiring a labor market test (PERM) F Immigrant visa applications not requiring a labor market test F Permanent residence for big-ticket investors Immigration Reform? Noon Adjourn (One 15-minute break will be taken during the program) U.S. Business Immigration Law for Non Immigration Lawyers v

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7 FACULTY Dagmar Butte, Parker Butte & Lane PC, Portland. Ms. Butte s areas of expertise are business and family immigration and international business/corporate law, focusing on employment-based visas, corporate immigration, and permanent resident petitions in high-technology, education, and medical industries. She serves as outside immigration counsel for Oregon Health and Science University, George Fox University, Oregon State University, the International Law Students Association, and Mercy Corps, and she is an Adjunct Professor of Law at Lewis and Clark Law School. Ms. Butte is Oregon s first elected member of the American Immigration Lawyers Association (AILA) Board of Governors and is a past Oregon Chapter Chair and a past chair of AILA National s USCIS Service Center Operations Committee, past chair of the USCIS Headquarters Committee, and served for several years as chair of AILA National s Removal/Detention/Due Process Committee. Ms. Butte has won numerous awards for her work in the field of immigration law, including AILA s 2011 President s Commendation for Outstanding Leadership. She is also an editor and author of several books and articles on immigration law and is a regular speaker at AILA national and regional conferences. Patricia Haim, Ogletree Deakins Nash Smoak & Stewart PC, Portland. Ms. Haim represents public and private employers in labor, employment, and business immigration matters. She focuses her practice on employment advice and business immigration matters, offering advice on I-9 requirements and compliance, Social Security no-match issues, and the filing of immigrant and nonimmigrant visa petitions. She also advises clients in a full range of employment issues that includes equal employment opportunity, wage and hour, hiring, performance management, termination, background checks, policies, procedures and handbooks, leaves, disability, and reasonable accommodation. Ms. Haim is a regular lecturer on employment law topics. U.S. Business Immigration Law for Non Immigration Lawyers vii

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9 September 25, 2014 OSB Business Immigration Basics for Non-Immigration Lawyers Presented by: Ptii Patricia A. Haim, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Dagmar Butte, Parker, Butte & Lane, P.C. Relevant Agencies All Federal with Overlapping Jurisdictions USCIS Immigration Benefits USCPB Customs & Border USICE Interior Enforcement DOS Visas, Overseas Adjudications USDOL Labor Programs SSA Social Security numbers U.S. Business Immigration Law for Non Immigration Lawyers 1

10 Part 1 - I-9 Forms and Related Enforcement Issues for Employers Compliance The Basics IRCA The Federal Immigration Reform and Control Act (IRCA) of 1986 makes it unlawful for an employer to hire or continue to employ an individual in the United States knowing that the individual is not legally authorized to work in this country. INA 274A(b). 8 USC 1324a, 2, 3. Requires employers and employees to complete I-9 forms. 8 CFR 274a.2. Employer must verify for each employee (1) identity, and (2) work authorization Employers covered all with at least one employee Proper completion of the I-9 form = rebuttable good faith defense. 8 CFR 274a.4. U.S. Business Immigration Law for Non Immigration Lawyers 2

11 Exceptions I-9 Form Not Required Employees hired before November 7, CFR 274a.7. 7 Independent contractors BUT contract provides no defense to knowingly hiring or continuing to employ an unauthorized alien. 8 CFR 274a.5. Leased or temporary employees where the leasing agency is responsible for I-9 compliance First day of employment Employees must complete Part 1 of the I-9 form. Employees must provide document(s) within three business days of being hired. 8 CFR 274a.2(b). Exception for temporary employees hired for less than three days. Timing U.S. Business Immigration Law for Non Immigration Lawyers 3

12 Enforced by ICE I-9 Compliance audits, 3 day notice US DOL federal contractors Penalties Fines for knowingly hiring or continuing to employ unauthorized aliens Fines for knowingly accepting fraudulent documents to satisfy the I-9 requirements Fines for discriminatory I-9 document practices based on citizenship status or national origin Penalties for paperwork violations; 10 days to make corrections. 8 USC 1324a(b)(6)(B). Cease and desist orders Potential criminal penalties Potential debarment from federal contracts for knowingly hiring or continuing to employ undocumented workers U.S. Business Immigration Law for Non Immigration Lawyers 4

13 Fines Imposed on a sliding scale Increased fines for repeated violations, pattern, or practice ICE Fine Schedules KNOWING HIRE AND CONTINUING TO EMPLOY VIOLATIONS ICE STANDARD FINE AMOUNT VIOLATION PERCENTAGE FIRST TIER $375 $3,200 SECOND TIER $3,200 $6,500 THIRD TIER $4,300 $16,000 0% 9% $375 $3,200 $4,300 10% 19% $845 $3,750 $6,250 20% 29% $1,315 $4,300 $8,200 30% 39% $1,785 $4,850 $10,150 SUBSTANTATIVE / UNCORRECTED TECHINICAL VIOLATION FINE SCHEDULE STANDARD FINE AMOUNT SUBSTANTATIVE VERIFICATION VIOLATIONS FIRST OFFENSE $110 $1100 SECOND OFFENCE $ THIRD OFFENCE $ % 49% $2,255 $5,400 $12,100 50% or more $2,725 $5,950 $14,050 U.S. Business Immigration Law for Non Immigration Lawyers 5

14 ICE Fine Schedules SUBSTANTATIVE VERIFICATION VIOLATIONS / UNCORRECTED TECHINICAL VIOLATION FINE SCHEDULE VIOLATION PERCENTAGE STANDARD FINE AMOUNT FIRST OFFENSE $110 $1100 SECOND OFFENSE $110 $1100 0% 9% $110 $550 $1,100 10% 19% $275 $650 $1,100 20% 29% $440 $750 $1,100 30% 39% $605 $850 $1,100 40% 49% $770 $950 $1,100 50% or more $935 $1,100 $1,100 THIRD OFFENSE + $110 $1100 ICE Fine Schedules ENHANCEMENT MATRIX FACTOR AGGRAVATING MITIGATING NEUTRAL Business size + 5% - 5% +/- 0% Good faith + 5% - 5% +/- 0% Seriousness + 5% - 5% +/- 0% Unauthorized Aliens + 5% - 5% +/- 0% History + 5% - 5% +/- 0% Cumulative Adjustment + 25% - 25% +/- 0% U.S. Business Immigration Law for Non Immigration Lawyers 6

15 Actual or Constructive Knowledge Knowingly includes: (1) actual knowledge that an employee lacks work authorization; and (2) constructive knowledge, i.e., knowledge which may be inferred through notice of certain facts and circumstances that would lead a reasonable person to know that an employee lacks work authorization. Examples of Constructive Knowledge The employer does not complete an I-9 form, and the employee turns out to be unauthorized to work The employee does not properly complete Section 1 of the form (e.g., fails to check an attestation box) The employee s temporary work permit expired, but the company continues to employ the person without I-9 re-verification The employer fails to address/resolve SSN or identity mismatch notices U.S. Business Immigration Law for Non Immigration Lawyers 7

16 Traps for the Unwary 1. Complete the I-9 form. 8 CFR 274a. Employee must complete all of Section 1 Employer must complete Section 2 correctly 1 Column A document or 1 Column B document + Column C document Not too many or too few documents Documents must be originals Documents must be unexpired Traps for the Unwary 2. I-9s and Receipts. 8 CFR 274a.2(b)(1)(vi). Acceptable only if the original document was lost, stolen, or damaged Receipts NOT acceptable for other kinds of documents, e.g. original social security card, extension of work permit Temporary I-551 stamp considered a receipt for a permanent residence card Employee must produce the original within 90 days U.S. Business Immigration Law for Non Immigration Lawyers 8

17 Traps for the Unwary 3. Reverification I-9 Form Part 3 Reverify only extensions of work authorization for employees who are NOT US citizens or permanent residents and are authorized to work for a limited period of time e.g., temporary work permits temporary work visas DO NOT reverify expiring permanent residence cards Traps for the Unwary 4. TPS Temporary Protected Status EAD category A-12 or C-19 Automatic work authorization extensions See USCIS website / protected-status-deferred-enforcedeparture/temporary-protectedstatus#countriescurrentlydesignatedfortps U.S. Business Immigration Law for Non Immigration Lawyers 9

18 Traps for the Unwary 5. Business Mergers and Acquisitions. 8 CFR 274a.2(b)(1)(viii)(A)(7). Acquiring entity can assume the acquired entity s I-9 forms but becomes responsible for any faults or omissions Tip: Do due diligence first! Traps for the Unwary 6. To Copy or Not to Copy I-9 Documents. 8 CFR 274a.2(b)(3)(B)(2) I-9 rules leave the decision up to the employer E-verify separate document requirements Pros and cons Key rule be consistent U.S. Business Immigration Law for Non Immigration Lawyers 10

19 Traps for the Unwary 7. Retention of I-9 Forms 1 year from date employment terminated or 3 years from date of hire, whichever is LATER. 8 CFR 274a.2(b)(1)(viii)(2). Hard copies vs. microfilm or microfiche. 8 CFR 274a.2(b)(1)(viii)(2)(ii). Traps for the Unwary 8. Electronic I-9 Forms and Signatures. 8 CFR 274a.2(a)(2) ) Allowable Electronic I-9 program must meet all USCIS specifications 8 CFR 274a.2 (e)-(i) Abercrombie & Fitch settlement agreement included $1 million fine, no unauthorized workers found Contract with an outside vendor no defense U.S. Business Immigration Law for Non Immigration Lawyers 11

20 Questions? Part 2 Employment-Based Non-Immigrant (i.e., Temporary) Work Visas U.S. Business Immigration Law for Non Immigration Lawyers 12

21 Overview of Visa Categories Non-Immigrant Visas Alphabet Soup Immigrant Visas Preference Categories and Quotas Per Country Limits Visa Bulletin B-1/B-2 Temporary Visitors A foreign national having a residence in a foreign country which he has no intention of abandoning, and who is visiting the U.S. temporarily for business (B-1) or for pleasure (B-2) B Visa Application Procedure: Apply directly at U.S. Consulate/Embassy Admission can be up to one year but usually less than 6 months 8 CFR 214.2(b); 9 FAM U.S. Business Immigration Law for Non Immigration Lawyers 13

22 Common B-1 Activities Attending meetings, conferences, training, presentations Negotiating contracts, litigation Providing after-sales service a installation based on a contract of sale Domestic servant/household employee of a nonimmigrant When in doubt consult Foreign Affairs Manual 9 FAM Common B-2 Activities Tourism, social activities, participate in social i ti / organizations/meetings Health reasons Domestic partner (regardless of gender) accompanying a principal H, L, or E employee Under certain circumstances, coming to marry a U.S. citizen but will depart U.S. Business Immigration Law for Non Immigration Lawyers 14

23 B-1/B-2 Temporary Visitors Visa Waiver Visa Waiver Program Allows citizens of certain countries seeking to visit the U.S. for up to 90 days to enter without a visa Limitations: No extension/change of status Electronic System for Travel Authorization (ESTA) See F-1 Foreign Students A foreign national who is a bona fide student qualified to pursue a full course of study and who seeks to enter the U.S. temporarily to study at an established college, university, seminary, conservatory, academic high school, elementary school, language training program or other academic institution. 8 CFR 214.2(f); 9 FAM U.S. Business Immigration Law for Non Immigration Lawyers 15

24 F-1 Students Qualifications Must intend to leave the U.S. at the conclusion of studies Must possess sufficient funds and have minimum preparation for course of study Must obtain I-20 and SEVIS registration F-1 Admission and Stay Admitted for duration of status (D/S) Except border commuter students and public high school students admitted until a date certain Admissible for up to 30 days prior to program start May be re-instated following temporary absence or failure to maintain status for up to 5 months 60-day grace period to depart the U.S. after completion (15 days if withdraw from classes) U.S. Business Immigration Law for Non Immigration Lawyers 16

25 F-1 Employment On-campus Off-campus only with EAD and unforeseen economic necessity Curricular Practical Training (CPT) must be Integral part of established curriculum (work study, internship, cooperative education) 8 CFR 214.2(f)(9) F-1 Employment, Cont. Optional Practical Training (OPT): Must be directly related to major area of study EAD required 12 month maximum unless Cap gap extension until October 1 STEM extension (17 months) with E-Verify 8 CFR 214.2(f)(10) U.S. Business Immigration Law for Non Immigration Lawyers 17

26 J-1 Exchange Visitors Includes students scholars and researchers trainees/interns teachers and professors au pairs specialists foreign medical graduates 9 FAM 41.62, 8 CFR 214.2(j) J-1 Exchange Visitors Qualifications Intend to leave the U.S. at conclusion of program Plan to remain in the U.S. for temporary, specific, limited period Must possess adequate financial resources SEVIS Form DS-2019 from designated sponsor U.S. Business Immigration Law for Non Immigration Lawyers 18

27 J-1 Exchange Visitors-Admission & Stay Will be admitted for duration of status (D/S) Admissible for up to 30 days before program start date listed on Form DS-2019 Granted up to 30 days after completion of program to depart the U.S. May change status from J-1 without departing the U.S. under limited circumstances J-1 Exchange Visitors Employment Can work: D i i ih During vacations with program sponsor For 18 months of post-degree practical training (36 months post-doctoral) or under scholarship, fellowship, assistantship No EAD required Dependents (J-2) can work with EAD U.S. Business Immigration Law for Non Immigration Lawyers 19

28 J-1 Exchange Visitors Two Year Foreign Residence Requirement Who is subject? Government funded exchange program Graduate medical education or training Specialized knowledge or skill: skills list Waiver is possible 8 CFR 214.2(j), 8 USC 1182 (e) H-3 Trainees Training in any field of endeavor at the invitation of an organization or individual Training not available in home country No productive employment or immigrant intent allowed Not placed in area of normal operation Maximum training period of two years 8 CFR 214.2(h) U.S. Business Immigration Law for Non Immigration Lawyers 20

29 H-1B Professionals H-1B visa program allows employers to hire a professional who will be working temporarily in a specialty occupation or as a distinguished fashion model Governed by USCIS and DOL Regulations 8 CFR 214.2(h); 20 CFR H-1B Professionals - Qualifications Nonimmigrant intent is NOT required Individual id must be employed in a specialty occupation, which is a position that requires: The theoretical and practical application or a body of specialized knowledge, and Af four-year college/university it degree or foreign equivalent or equivalent experience in the specialty field ( 3 for 1 rule). U.S. Business Immigration Law for Non Immigration Lawyers 21

30 H-1B Professionals Admission and Stay Six-year limit, in up to three-year increments Time spent in H or L status with another employer (other than as an H or L dependent) counts toward the six-year limit Additional H-1B visa validity is possible, if: The employee has accumulated 365 days in an employment-based permanent residence process, or Eligibility for an immigrant visa has been approved but the category is oversubscribed H-1B Professionals Quota ( H-1B Cap ) Fiscal year quota of 65,000: Applies to all new H-1B petitions, with exemptions for institutions of higher education, not-for-profit organizations affiliated with institutions of higher education, and government research organizations, as well as certain recipients of 212(e) waivers 20,000 set-aside for graduates of U.S. master s (or higher) degree program g p g Open for filing each April 1 st If employer is subject to the cap, employment may not commence before October 1 st of that fiscal year. U.S. Business Immigration Law for Non Immigration Lawyers 22

31 H-B Professionals - Filing Process Labor condition application (LCA) must be certified by DOL prior to filing the H-1B petition with USCIS ETA Form 9035 filed through icert portal ( Salary must be higher of actual wage or prevailing wage based on statistical data Prevailing wage determination not required Special requirements for U.S. organizations with dependency on foreign workers 20 CFR H-B Professionals - Filing Process H-1B petition approval does not necessarily qualify the candidate to commence employment immediately Granted a change to or an extension of H-1B status; or Obtain an H-1B visa stamp at a consulate and enter US Portability H-1B transfers filing a new H-1B petition can begin work for a new employer when the petition is filed, if: H-1B status maintained and no unauthorized work New petition is nonfrivolous Lawfully admitted and petition filed before date of expiration of the period of authorized stay U.S. Business Immigration Law for Non Immigration Lawyers 23

32 TN - Canadian/Mexican Professionals TN status available to certain Canadian and Mexican citizens who are professionals under NAFTA. Occupation must be listed in NAFTA s Appendix 1603.D.1 USCIS TN regulations: 8 CFR DOS TN rules: 9 FAM Duration: 3 year increments, no limitation on renewals Change in reciprocity for Mexican citizens should not affect 3 year admission Spouses (TD status) are not granted work authorization TN - Canadian/Mexican Professionals Advantages over H-1B and other categories: No LCA or prevailing wage requirements No numerical quota Canadians may apply at Port of Entry (POE), usually on the spot (no visa required for Canadians) For Mexicans, single step processing (consular processing for visa) followed by inspection at POE May also change to or extend TN status by filing with USCIS No preliminary petition (I-129) required, unless filing with USCIS U.S. Business Immigration Law for Non Immigration Lawyers 24

33 E-3 Australian Professionals Available to Australian citizens only Job must require a bachelor s degree (or equivalent) in a specialty occupation Applicant must have a bachelor s degree (or equivalent) in the field of intended employment Labor Condition Application (LCA) required Numerical limitation set at 10,500 annually May apply directly at U.S. Consulate in Australia - petition to USCIS not needed Duration: 2 year increments, no limitation on renewals Spouse of E-3 may apply for work authorization INA 101(a)(15)(E)(iii); 22 CFR (c) E-1 and E-2 Treaty Traders and Investors Citizens of county having a treaty of commerce and navigation (or a treaty of bilateral investment) with the U.S. Coming to the U.S. for the purpose of carrying on substantial trade, principally between the two countries, or Coming to develop and direct an enterprise, in which they have invested, or are actively in the process of investing, a substantial amount of capital Governed by USCIS and DOS Regulations and Foreign Affairs Manual 8 CFR 214.2(e); 9 FAM U.S. Business Immigration Law for Non Immigration Lawyers 25

34 E-1 Treaty Trader E-1 (Treaty Trader): Citizen of treaty country engaging in trade between the U S and their home country: trade between the U.S. and their home country: Applicant and trading firm must be nationals of treaty country International trade must be substantial and principally between U.S. and treaty country Applicant must be manager or have essential skills At least 50% of stock must be owned by citizens of treaty country (who are not also USCs or LPRs) E-2 Treaty Investor E-2 (Treaty Investor): Citizen of treaty country coming to the U.S. to develop and direct enterprise in which h they are investing a substantial amount of capital: Investor must be citizen of the treaty country Investment must be substantial and in a real operating enterprise Investor must have control of funds Investor must be coming to develop and direct enterprise or have essential skills Investment must create employment beyond just support of investor and family U.S. Business Immigration Law for Non Immigration Lawyers 26

35 H-2A Temporary Agricultural Workers Entering U.S. for up to one year to perform agricultural labor or services of a temporary or seasonal nature Must demonstrate no U.S. workers are capable and available U.S. employers required to hire qualified U.S. workers who apply until 50% of contract period completed 8 CFR 214.2(h); 9 FAM H-2A Temporary Agricultural Workers, cont. Must recruit using state job banks Must: Pay higher of H-1A adverse effect wage rate, prevailing wage rate, CBA or applicable minimum wage Provide housing and transportation Provide workers compensation insurance Provide copy of work contract to worker U.S. Business Immigration Law for Non Immigration Lawyers 27

36 H-2B Temporary Seasonal Workers 66,000 annual quota or cap divided into spots per six month period 33,000 spots per six month period No returning worker grandfathering since 2007 Usually limited to 1 year with 2 annual extensions Unlimited renewals for seasonal workers H-2B Temporary Seasonal Workers Application Process Obtain prevailing wage from Chicago NPC 10 day job order with state employment agency plus to Sunday newspaper print ads File ETA 9142 no more than 120 days before need File I-129 with USCIS Change of status in U.S. or, more commonly, obtain visa at Consulate U.S. Business Immigration Law for Non Immigration Lawyers 28

37 L-1A/L-1B Intracompany Transferees Executive, manager, or specialized knowledge employee Branch, parent/subsidiary, or affiliate Governed by USCIS regulations and Foreign Affairs Manual Nonimmigrant intent is NOT required 8 CFR 214.2(l); 9 FAM L-1A/L-1B Intracompany Transferees Individual must be an executive or manager of people or a key function (L-1A), or have relevant specialized knowledge unique to the organization and the job (L-1B) USCIS restrictive interpretation of specialized knowledge Employed abroad for at least one year within the previous three years by foreign parent, subsidiary, affiliate or branch office U.S. Business Immigration Law for Non Immigration Lawyers 29

38 L-1A/L-1B Intracompany Transferees No numerical quota 7 year limit for L-1A, 5 year limit for L-1B (may change from L-1B to L-1A with at least 6 months left in L-1B status) Time spent in H or L status with another employer counts towards 7 or 5 year limit L-1A/L-1B Intracompany Transferees Payroll may be based in U.S. or abroad but no minimum wage requirement minimum wage requirement Spouses (L-2) may work with EAD L-1A may qualify for faster route to permanent residence for managers/executives Blanket L petition available for qualifying employers U.S. Business Immigration Law for Non Immigration Lawyers 30

39 O-1 Extraordinary Ability and Achievement O-1 status is available to foreign nationals with extraordinary ability Three different standards depending on area of expertise: Extraordinary ability in science, education, business or athletics Extraordinary achievement in motion pictures and television Extraordinary ability in the arts 8 CFR 214.2(o) O-1 Extraordinary Ability and Achievement Petitioner must be a U.S. employer or a U.S. agent Evidence differs based on category, so always check regulations and USCIS guidance and RFE templates U.S. Business Immigration Law for Non Immigration Lawyers 31

40 O-1 Extraordinary Ability and Achievement Consultation requirement labor organization or peer group, and in certain circumstances a management organization O-1 petitions approved for the duration of the activity with a maximum length of 3 years. Extension available in 1 year increments for same petitioner. P-1, P-2 & P-3 Artists, Athletes & Entertainers P-1: Person coming to the U.S. to perform services as an internationally recognized athlete, individually or as part of a group or team (8 CFR 214.2(p)(4)(ii)), or as a member of an internationally recognized entertainment group (8 CFR 214.2(p)(4)(iii)) P-2: Artist or entertainer coming to perform under a reciprocal exchange program (8 CFR 214.2(p)(5)(i)) P-3: Individual coming to perform, teach or coach under a program that is culturally unique (8 CFR 214.2(p)(6)(i)) 8 CFR 214.2(p) U.S. Business Immigration Law for Non Immigration Lawyers 32

41 Questions? Part 3 Employment-Based Immigrant Visas/Permanent Residence Based on Work U.S. Business Immigration Law for Non Immigration Lawyers 33

42 Permanent Residence Based on Work EB Categories Quotas and backlogs Overview: PERM Alien Employment Certification PERM = program electronic review management labor certification; 20 CFR , et seq. certification; 20 CFR , et seq. Employer must test the labor market to determine if any US workers who meet the minimum qualifications are ready, willing, and able to accept the job US workers = USCs and LPRs Test is whether any US worker applicant meets the minimum qualifications (or can be trained within a reasonable business period), not whether the foreign worker is better qualified. USDOL s OES/SOC job classifications used to determine ordinary duties of a position and minimum requirements Not available for unskilled/low skilled workers U.S. Business Immigration Law for Non Immigration Lawyers 34

43 Prevailing Wage Employer must offer at least the prevailing wage during PERM recruitment and to foreign worker once he/she becomes an LPR Prevailing wage is determined by USDOL Note Employer must be able to demonstrate ability to pay the prevailing wage Recruitment Efforts In General 30 day job order with SWA (state workforce agency) 2 Sunday ads in a newspaper of general circulation for the area Employers in rural areas without a Sunday newspaper can use the newspaper edition with the widest circulation in the area In-house job posting/notice of filing for 10 consecutive business days U.S. Business Immigration Law for Non Immigration Lawyers 35

44 For Professional Positions General requirements plus any three of the additional recruitment means: Job fairs Employer s web site Job search web site other than employer s On-campus recruiting (usually for positions requiring no experience) Trade or professional organizations Private employment firms Employee referral program that includes identifiable incentives Notice of the job opening at a campus placement office (if the job requires a degree but no experience) Local and/or ethnic newspapers, if they are appropriate for the job opportunity Radio and television advertisements Special Situations University and college teachers Live-in domestic employees Foreign language requirements - a big red flag Other red flags required minimum experience gained with same employer, combination of duties U.S. Business Immigration Law for Non Immigration Lawyers 36

45 Recruitment Timing PERM application must be filed within 180 days after the recruitment began 30 day quiet period after recruitment ended Exception for professional positions one of the added recruitment activities may take place within the 30 days before the PERM application is filed Employer s Review of Resumes/Applications Review all resumes/applications received Interview all US worker applicants who appear to have the minimum qualifications. Telephone pre-interview an option Document results does each applicant have all minimum requirements (education, training, i experience) If applicant meets the minimum requirements and is rejected, document lawful, job-related reasons U.S. Business Immigration Law for Non Immigration Lawyers 37

46 PERM Filing and Processing PERM application filed on line USDOL s icert portal Average processing about 5-6 months if no audit request issued Average about 1 year if audit request issued Multinational Executives & Managers Executive: Ultimate responsibility for directing the management of the organization or a major component or function, Establish policies/goals Discretionary decision making power Not closely supervised except by the board of directors, stockholders or other executives U.S. Business Immigration Law for Non Immigration Lawyers 38

47 Executives & Managers, Cont. Managers Manage the organization or a department, t sub-division, i i essential function or component of the organization; Supervise and control the work of other supervisory, professional or managerial employees; Have hiring and firing power if they supervise others, or if no employees are managed, functioning at a senior level lwithin the organization, and Have discretion over the day to day operations of the activity or function. EB-1A EB-1A - Aliens with Extraordinary Ability in the sciences, arts, education or athletics who have demonstrated this ability through sustained national or international acclaim whose achievements have been recognized through extensive documentation who seek to enter the U.S. to continue work in the area of extraordinary ability and whose entry into the US will substantially benefit the U.S. U.S. Business Immigration Law for Non Immigration Lawyers 39

48 EB-1B EB-1B - Outstanding professors and researchers with at least 3 years of experience in teaching or research who are entering the U.S. for a tenured, tenure track or comparable position to teach or conduct research at a university or institution of higher education or a private employer who employs at least 3 full time researchers and has achieved documented accomplishments in an academic field. EB- 2A, EB-2B, Schedule A Group II EB-2A Aliens with Exceptional Ability in the sciences, arts or business. EB-2B Aliens whose services in the sciences, arts, professions or business are of such high importance that they are entitled to a National Interest Waiver of the labor certification requirement. Schedule A Group II individuals of Exceptional Ability in the sciences or arts U.S. Business Immigration Law for Non Immigration Lawyers 40

49 Aliens of Extraordinary Ability 1) Receipt of a lesser national or international prize; 2) Membership in an association(s) that require outstanding achievement of their members; 3) Published material about the beneficiary in a professional journal or other appropriate media; 4) Participation as a judge of the work of others; 5) Evidence of original and significant contribution to the field; 6) Authorship of scholarly articles; 7) Artistic exhibitions or showcases; 8) Performance in a leading or critical i role for organizations i that have a distinguished reputation; 9) High salary in relation to others in the field; 10) Commercial success in the performing arts, and 11) Comparable evidence, if the above standards do not apply. Outstanding Professors or Researchers Receipt of a major (as opposed to lesser) prize for outstanding achievement; Membership in an association(s) that require outstanding achievement of their members; Published material about the beneficiary i in a professional journal; Authorship of scholarly books or articles. U.S. Business Immigration Law for Non Immigration Lawyers 41

50 Aliens of Exceptional Ability in Science, Arts, or Business (requires PERM labor certification) A degree relating to the area of exceptional ability; A letter from a current or former employer showing at least 10 years of experience; A license to practice; A high salary that would demonstrate exceptional ability; Membership in a professional association; Recognition for achievements or significant contributions; or Comparable evidence such as expert letters. Schedule A, Group II Receipt of internationally recognized prizes or awards; Membership in international associations which require outstanding achievement of their members; Published material in professional publications about the alien or the alien s work; Participation on a panel, or individually, as a judge of the work of others; Original scientific or scholarly research contributions of major significance; Authorship of published scientific or scholarly articles in professional journals with international circulation; and Evidence of the display of the alien's work at artistic exhibitions in more than one country. U.S. Business Immigration Law for Non Immigration Lawyers 42

51 National Interest Waiver The beneficiary must have either a. An advanced degree; or b. Exceptional ability; and The proposed employment must involve an endeavor of substantial intrinsic merit; and The proposed benefit must be national in scope; and The national interest alleged in the performance of the beneficiary s i services must outweigh the national interest t inherent in the labor certification process. Misc. Immigrant Categories EB-5 Immigrant Investors, Independent d Regional lcenters Special Immigrant Religious Workers U.S. Business Immigration Law for Non Immigration Lawyers 43

52 Questions? U.S. Business Immigration Law for Non Immigration Lawyers 44

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