By: Dina Sakita, Immigration Counsel
In an increasingly globalized economy, it is critical that Human Resources professionals have a basic understanding of U.S. federal immigration laws in order to assist their employers’ in maintaining compliant with the relevant statutes and regulations as they pertain to the employment of foreign national workers. This is particularly true as we have entered an era in which penalties for non-compliance are no longer limited to the civil arena, but now include potential criminal sanctions. We have listed the top ten fundamental concepts that we believe deserve mention.
1. Complete, Retain, and Revalidate Form I-9, Employment Eligibility Verification
As of 1986, the Immigration Reform and Control Act (IRCA) requires that every U.S. employer complete a Form I-9, Employment Eligibility Verification, on behalf of each new hire for employment in the United States. Form I-9 is used to verify the identity and employment authorization of all individuals (both citizens and noncitizens) hired for employment by visually inspecting original documents presented by the employee from a list of acceptable documents listed on the form. Employers must retain Form I-9, as well as make the form available for inspection upon the request of the U.S. Immigration and Customs Enforcement. An employer may be liable for civil or even criminal penalties, for failure to properly complete and retain Form I-9. In addition to maintaining Form I-9, employers must also revalidate certain Form I-9s, for example, for those who present employment authorization documents with associated expiration dates. Enforcement of the Form I-9 requirement is typically handled through government audit, as Form I-9 is not required to be filed with any government agency.
The anti-discrimination provisions of the Immigration and Nationality Act (INA) prevent every U.S. employer from engaging in discriminatory employment practices. The relevant provisions of the INA protect against the following types of conduct: (1) national origin, citizenship, or immigration status discrimination in hiring, firing, or recruiting; (2) unfair documentary practices or “document abuse” during the employment eligibility verification process such as I-9 and E-Verify processes, which includes requesting more or different documents than required for employment eligibility verification due to an individual’s citizenship, immigration status, or national origin; and (3) retaliation for filing a charge, assisting in an investigation, or asserting rights under the anti-discrimination provision. Enforcement of this provision is handled by the Office of Special Counsel for Immigration-Related Unfair Employment Practices.
Employers’ should also take caution against including discriminatory language in its job postings and other advertisements. For example, including a “U.S. Citizenship” requirement in a job advertisement could appear to be discriminatory, unless the requirement is mandated by a valid federal contract.
3. Cap/Quota Issues
It is also prudent for U.S. employers’ to become familiar with the basic deadlines for common work-based immigration filings, for example the widely utilized H-1B work status that is associated with a Congressionally mandated cap or “quota”. The H-1B is an employment-based work authorized status that applies to “professional” workers employed in one of the “specialty occupations”, i.e., generally those occupations that require a Bachelor’s degree as the minimum entry into the occupation, such as a Scientist, Engineer, or Business Analyst, to name a few.
Due to the high demand for H-1B status, the annual cap has been exceeded for the past four years. As a result, the U.S. Citizenship and Immigration Service (USCIS) conducts an annual lottery (random computer generated lottery) to select those petitions that will be processed in the given fiscal year. All other cases are returned to the employer.
The result of this lottery system is that employers must be prepared to file all of its H-1B petitions on April 1 of each year, as the USCIS will only accept new* (non-exempt) H-1B petitions for a five day window beginning on April 1. The USCIS will tally up all petitions received during this five day period, then conduct its annual lottery. Employers are prevented from filing any additional new (non-exempt) H-1B petitions for the remaining 360 days of the year. The so called “H-1B season” has become much like an Accountant’s April 15 “tax deadline/season”, with the biggest exception being that there is no extension or other late filing process available for employers who have missed the April filing window.
*H-1B extensions are exempt from the cap.
4. Understanding the Common Nonimmigrant (Temporary) Work Visa Options and the Corresponding Employer Obligations and Liabilities.
When an employer sponsors a foreign national employee for a temporary employment-based status, it is prudent that the employer have a basic understanding of the basic rules and obligations of such sponsorship. For example, if an employer opts to use the H-1B program, it must pay at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question, or the prevailing wage level for the occupation in the area of employment, whichever is higher. The employer must also provide similar benefits to the H-1B worker as provided to other similarly situated workers; it must maintain a file available for public inspection for the requisite statutory period; it must notify the USCIS of any “material” changes in employment, which may include a change in hours or location of employment; and it is also wise to be aware of the H-1B dependency provision, which increases employer obligations once a certain percentage of its staff become H-1B holders.
Another example involves the use of the temporary B-1 Business Visitor status. It is critical that use of this status be limited to certain permissible business activities, which might include attending a conference or training seminar, or meeting with colleagues to discuss upcoming projects. Employers should be aware that hands-on productive work product, or other activities conducted side-by-side other similar workers that provide more than an incidental benefit to the U.S. employer are not within the scope of permissible B-1 business visitor activities. B-1 Business Visitors are also not permitted to receive a salary from the U.S. employer, with an exception for reimbursement for travel and other expenses accrued during their stay in the U.S.
Employers wishing to sponsor an employee for an H-1B or L-1 nonimmigrant visa, or an F-1 student working pursuant to his or her STEM-based Optional Practical Training should also be advised that government officers are authorized to make unannounced site visits to the employer worksite in order to determine, among other things, whether the facts supplied in an immigration application are true and accurate.
5. Understanding Travel Issues
When an employer hires a foreign national worker, it is important to keep in mind that there may be delays in the ability of a foreign national worker to return to the U.S. after international travel. Delays can occur due to a variety of factors, including visa appointment availability, visa processing times which can vary from Consulate to Consulate, and delays resulting from background security checks.
6. Understanding Reimbursement Issues
Federal law prevents U.S. employers from seeking reimbursement for certain employer business expenses associated with the sponsorship of immigration benefits. Accordingly, U.S. employers should have a basic understanding of which expenses associated with employment-based immigration process are considered employer business expenses that cannot be passed on to the employee, versus those which an employer may seek reimbursement pursuant to a valid liquidated damages clause. Employers should also take care to draft appropriate Immigration Agreements with their employees’ that address issues such as timing of sponsorship for Permanent Residency, as well as any permissible reimbursement provisions, and whether costs associated with family members’ immigration applications will be the responsibility of the employee.
7. Understanding Key Immigration Documents
U.S. employers should familiarize themselves with the basic immigration documents associated with the hiring of a foreign national worker in order to maintain corporate compliance with federal immigration law, for example, those documents that give rise to the revalidation of I-9 records. The following three documents represent the fundamental immigration related documents that control one’s ability to work in the United States:
8. Corporate Reorganizations
In the event of a corporation reorganization, such as a merger, acquisition, or spin-off, due diligence is required on the part of the U.S. employer to ensure a smooth transition of foreign national employees to the surviving entity. Far too many times, immigration attorneys are the last to know of such changes, only to learn of it in the news or through the employee grapevine. The details of such a corporate change will need to be disclosed to immigration counsel as soon as the details are known, for example, will it be an asset acquisition only, or will the acquiring company assume substantially all of the assets and liabilities of the predecessor, including immigration related liabilities? In many cases, the immigration benefits that have accrued to its foreign national employees will survive the reorganization and may be carried over to the surviving entity.
9. Employer Sponsorship for Permanent Residency
U.S. employers should be prepared for the possibility of serving as a sponsor for employment-based Permanent Residency due to the nonimmigrant (temporary) nature of the work visas noted above. For example, the H-1B work status is valid for a total of six years (exceptions apply), granted in initial increments of three years. If an employer wishes to retain the employee beyond the statutory six year limit, it must begin the sponsorship process to obtain employer-based Permanent Residency, i.e., a “green card” on behalf of the individual. This process can sometimes take years to complete depending on a variety of factors, such as Country of Chargeability and the applicable employment-based preference category. Employers should keep in mind that in a highly competitive market, any unwillingness to sponsor an employee for the employment-based “green card” could result in losing a highly qualified key employee. Although there are many options toward obtaining employment-based Permanent Residency, one of the common methods is the PERM Labor Certification process, which can be a lengthy and sometimes daunting experience if not performed by a highly skilled attorney who is familiar with the myriad of legal and technical issues. For example, any minor typographical error in an application can result in a denial thus rendering months of work by HR pointless.
10. Export Control
U.S. employers should have an awareness of export control laws, which could potentially apply to the hiring of a foreign national worker. When a foreign national employee comes into contact with certain “sensitive technologies”, the acquired knowledge may be considered an “export” and subject to the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).
Employers who seek H-1B, H-1B1, L-l or O-1A classification on behalf of an employee or potential employee are required to answer the Export Control questions in Part 6 of Form I-129, Application for a Nonimmigrant Status. Federal law prohibits the “export” of controlled technology and technical data to certain foreign nationals in the United States without a license. In completing Part 6, the Employer must certify that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that either (1) a license is not required to release the technology to the beneficiary, or (2) a license is required and the petitioner will prevent the beneficiary’s access to the technology until the petitioner has secured a license or other authorization.
As we approach an unprecedented Presidential election, we are well aware that the future landscape of immigration may vastly change. We are aware of both candidates’ views on illegal immigration, but just how a new Presidency will affect legal immigration, specifically in the context of employer sponsored immigration law, is yet to be seen. For the time being, however, having a basic understanding of the rules that impact the hiring of a foreign national worker will go a long way in ensuring corporate compliance with the current rules and regulations affecting U.S. employers.
The information contained herein is intended for informational purposes only and shall not constitute specific legal advice or serve as a substitute for the advice of legal counsel.
For the last four years, the employer demand for H-1B petitions, a popular visa for highly skilled workers, has far exceeded supply. As a result, the U.S. Citizenship and Immigration Service (USCIS) has implemented an annual lottery system, a random computer generated lottery which selects “winners”, i.e., those employers and employees who will receive the benefit of an H-1B work visa.
For the first time, a federal lawsuit seeks to challenge the annual H-1B lottery system. Tenrec, Inc. v. U.S. Citizenship & Immigration Servs. , 2016 BL 312928, D. Or., No. 3:16-cv-00995 (September 22, 2016). The lawsuit claims that under federal law, the USCIS is required to process applications on a first-come, first-served basis, as opposed to the current lottery based system which can result in countless years of rejection for the H-1B visa.
On September 22, 2016, a decision by Judge Michael H. Simon of the U.S. District Court for the District of Oregon denied the USCIS’s attempt to dismiss the case. Judge Simon’s decision addresses the injury sustained not only by H-1B workers, but also the injury to the employer seeking to hire the highly skilled worker.
Should the case ultimately succeed, what will replace the current lottery system? The H-1B visa is an extremely popular visa among the leading technology giants who seek large volumes of H-1B visas each year in order to meet their need for highly skilled technology workers. How will the small employer seeking sponsorship of only one H-1B worker compete with those seeking multiple H-1B petitions?
The Tenrec, Inc. decision states that a “priority date” system should be implemented, meaning that petitions may be considered in subsequent years as visas become available. Although, in theory, this sounds like a nice idea, just how these priority dates will be assigned, in practice, will be an extremely challenging task. It’s not as though USCIS can simply time-stamp H-1B filings as they are received at the USCIS Service Centers. Much thought will need to be given to how such a priority date system would work.
Given the potential for years of rejection under the current lottery system, one may have a better outcome by filing for U.S. Permanent Residency through employer sponsorship. This alternative undermines the notion that the H-1B is technically a “temporary” work visa, allowing employers to fulfill temporary labor shortages.
It would appear that the most practical solution would involve increasing the annual H-1B cap/quota, as well as creating addition exemptions from the H-1B cap/quota for certain critical positions, such as those that substantially benefit U.S. national interests, or those which an employer cannot fill after extensive recruitment efforts. The statutory exemptions from the H-1B cap for qualifying non-profit organizations should be expanded to address the arbitrary nature of the lottery system that adversely affects employees and employers alike. There does not, however, appear to be a remedy in the foreseeable future.
This post was contributed by Dina J. Sakita, Senior Counsel at Madison | Piper PC.