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Navigating the U.S. Business Immigration Maze: Practical Guidance for Employers
Tuesday, November 17, 2015
Moderator Todd P. Photopulos Butler Snow Memphis, TN todd.photopulos@butlersnow.com
Speakers
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Please submit your questions via the Q and A box on the bottom right side of your screen and send them to “all presenters” to make it easier to respond. We will answer questions verbally but also in writing. If your question is not answered during the webinar, we will do our best to answer it afterwards.
Gabrielle M. Buckley Vedder Price Chicago, IL gbuckley@vedderprice.com Melanie Gurley Keeney Tueth, Keeney, Cooper, Mohan & Jackstadt St. Louis, MO mkeeney@tuethkeeney.com
Speakers
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Teri Simmons Arnall Golden Gregory Atlanta, GA teri.simmons@agg.com Roger Y. Tsai Holland and Hart Salt Lake City, UT rytsai@hollandhart.com
Speakers
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L-1 Visas
Gabrielle M. Buckley
Vedder Price
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• The L-1 (Intracompany Transferee) category was created to facilitate the transfer of key employees to the United States.
• Eligible individuals: – Persons previously employed outside of the U.S.
by a “qualifying organization” for at least one of the past three years
– Must have served as executives, managers, or in positions requiring “specialized knowledge” and will work in the U.S. in one of those capacities
L-1 Intracompany Transferee Status: Background
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• If U.S. company has been organized for less than one year, “new office” L-1 status is available for one year
• Maximum period of stay for L-1 visa holders: – Seven years for L-1A managers and executives – Five years for L-1B specialized knowledge
employees
L-1 Intracompany Transferee Status: Background
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• “Qualifying Entities” for L-1 status – “Parent” – “Branch” – “Subsidiary,” where parent owns: More than half of the entity and controls the entity, or Half of the entity and controls the entity, or 50% of a 50-50 joint venture and has equal control
and veto power over the entity, or Less than half of the entity, but in fact controls the
entity;
L-1 Intracompany Transferee Status: Background
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• “Affiliate” • A qualifying organization must continue to be
doing business as an employer in the U.S. and in at least one other country.
The L-1 Intracompany Transferee Visa
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• Eligible roles for L-1 status - definitions: – Executive capacity requires: Management of an organization or major component
or function; Authority to establish goals and policies; Wide latitude in discretionary decision-making; Only general supervision from higher executives.
L-1 Intracompany Transferee Status
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• Eligible roles for L-1 status - definitions: – To qualify as a Manager, must: Manage an organization, department, subdivision or
function; Supervise and control the work of other supervisory,
professional or managerial employees, or, alternatively, manage an essential function;
Have the authority to make personnel decisions, or else function at a senior level;
Exercise discretion over the day-to-day operations of the activity or function for which he or she has authority.
L-1 Intracompany Transferee Status
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• Specialized knowledge: current definition – Special knowledge possessed by an individual
of the petitioning organization’s product, service, research, equipment, techniques or other interests and its application in international markets; or
– Advanced level of knowledge or expertise in the organization’s processes and procedures
• Previously, government memoranda and case law have expanded this definition.
L-1 Intracompany Transferee Status
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• L-1B Employees may be placed at third-party worksites if the employee is: – Controlled and supervised principally by the petitioning employer – Using specialized knowledge related to this employer
• Blanket L process may be used for L-1B employees: – U.S. entity must have gross revenues of at least $25 million; or – Employ at least 1,000 employees in the U.S.; or – Have had at least 10 L-1 petitions approved in prior year; AND – Employee must be a “professional” – Practice tip: For certain cases, Blanket L process may be preferable
L-1 Intracompany Transferee Status
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• November 14, 2014: Jeh Johnson issues Memorandum instructing USCIS to clarify L-1B regulations
• August 17, 2015 USCIS issues “L-1B Adjudications Policy” (“Policy”)
• Effective as of August 31, 2015 • Policy supersedes and rescinds previous
governmental guidance on L-1B requirements • Revises the Adjudicator’s Field Manual
Recent Changes to L-1B Status
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• Good news: Policy confirms that L-1B evidentiary threshold is: – “Preponderance of the evidence” – NOT “clear and convincing” or “beyond a
reasonable doubt.”
Changes to L-1B Classification
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• Revision of Specialized Knowledge definitions: – Special knowledge, which is knowledge of the
petitioning organization’s product, service, research, equipment, techniques or other interests and its application in international market that is distinct or uncommon in comparison to that generally found within the particular industry; or
– Advanced knowledge, which is knowledge or expertise in the petitioning organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the employer.
Changes to L-1B Classification
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• Policy includes a non-exhaustive list of evidence to be provided and examples of “specialized knowledge”
• List includes: – Documentation of training , work experience or education to
evidence specialized knowledge – Evidence of the impact of the transfer on the U.S. entity – Evidence that the employee will contribute information not
generally found in the U.S. entity – Personnel or in-house training records showing specialized
knowledge obtained only through the employer
Changes to L-1B Classification
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• Lists includes (cont’d): – Documents SOW or other contracts demonstrating
knowledge beneficial to the U.S. entity's competitiveness in the market place
– Evidence showing employees’ assignments have enhanced the entity’s productivity, competitiveness, image or financial position
– Curricula and training manuals for internal training courses – Evidence of patents, trademarks, licenses or contracts
based on the employee’s work – Documentation of payroll records, etc. to show that the
compensation is parallel to the employees in the U.S. entity
Changes to L-1B Classification
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Recent Adjudication Data
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• Despite positive description of the L-1B category in the beginning of the Policy, the Policy adds additional requirements;
• Information is now included in the Field Adjudication Manual, which will be used by USCIS adjudicators;
• Employers should take advantage of the evidence threshold: preponderance of the evidence;
• Keep posted for cases contesting the new requirements.
Conclusion
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H-1Bs and STEM
Melanie Gurley Keeney Tueth, Keeney, Cooper, Mohan & Jackstadt
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• H-1B basics • Changes in worksite location • Temporary locations and short-term
placements • Other H-1B tips and hot topics
Overview
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• Available for a person in a “specialty occupation”
• Capped each year at 65,000 with an additional 20,000 available for beneficiaries with U.S. Master’s degrees, unless cap-exempt
• Valid for 6 years and sometimes longer
H-1B Basics
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• Requires Labor Condition Application (LCA) – Prevailing wage – Form 9035 iCert System and processing – Posting obligation – Public Access File
H-1B Basics
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• An H-1B employer must file an amended petition “to reflect any material changes to the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition.”
8 C.F.R. § 214.(h)(2)(i)(E)
Changes in Worksite Location
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• Matter of Simeio Solutions, LLC – Decision of USCIS’ Administrative Appeals
Office issued on April 9, 2015 – Clarified that employers must file amended H-
1B petitions following a change in the employee’s worksite location
– Amended petition must be filed if the new location is outside of the metropolitan statistical area (MSA) covered by the existing petition
Changes in Worksite Location
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• What does this mean for you? – If the new worksite is within the same MSA: New LCA and H-1B petition not required BUT, make sure to post the original LCA at the new
location – If the new worksite is in a different MSA: Likely need to obtain an LCA for that location and
amend the H-1B petition to reflect the new location Amended petition should be filed prior to the transfer Worker can begin working at the new location once
the petition is filed
Changes in Worksite Location
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• For changes in worksite locations occurring prior to August 19, 2015, employers have until January 15, 2016 to file amended petitions.
• Consider conducting an audit of H-1B employees to ensure that none have changed locations.
• What if the assignment to the new location is temporary?
Changes in Worksite Location
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• Does the location constitute a “place of employment”? – The worksite or location where work is actually
performed. – Does not include conferences, staff seminars,
or formal training, unless the position is as an instructor or support staff who regularly performs their duties at such locations.
20 C.F.R. § 655.715
Temporary Locations
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• Not a “place of employment” and H-1B amendment not required if: – Nature and duration of the job functions mandate
short-time presence at the location; – Presence at the location is on a casual, short-term
basis, which can be recurring but not excessive; and Not more than 5 consecutive workdays for one visit by a
“peripatetic” worker Not more than 10 consecutive workdays for one visit by
a worker with a primary worksite who occasionally travels – Worker is not at the location due to a strike or lockout.
20 C.F.R. § 655.715
Temporary Locations
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• Does the new location constitute a “short-term placement,” i.e., an H-1B amendment is not required)? – Assignment generally may not exceed a total of 30
workdays in a one-year period. – BUT, an assignment may last for a total of 60 workdays
in a one-year period if: Worker maintains an office or workstation at his/her primary
worksite; Worker spends a substantial amount of time at the primary
worksite in the one-year period; and Worker’s U.S. residence is located in the area of the primary
worksite (not the short-term worksite). 20 C.F.R. § 655.735(c)
Temporary Locations
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• The 30/60 workday time limitations for short-term placements include work at any worksite or combination of worksites within the same area of employment (i.e., same MSA).
• When the 30/60 workday limit for short-term placements is reached, employer must either: – File an LCA; or – Immediately terminate the placement.
20 C.F.R. § 655.735(f)
Temporary Locations
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• A short-term placement is only acceptable if: – All LCA requirements have been satisfied for the
primary worksite; – Worker is not at the location due to a strike or lockout; – Employer continues to pay the prevailing wage for the
primary worksite as well as the cost of lodging, travel, meals, and other incidental expenses for both work and non-work days while at the short-term placement;
– Employer does not have a certified LCA for the position at issue in the area of employment of the short-term placement.
20 C.F.R. § 655.735(f)
Temporary Locations
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• What does this mean for you? – If the temporary location is not a “place of
employment” or the assignment constitutes a “short-term placement,” Do not need an LCA; and Do not need to include the location on the H-1B
petition.
– Otherwise, must obtain a certified LCA for the location, post the LCA at the location, maintain a public access file, and include the location on the H-1B petition.
Temporary Locations
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• RFEs, RFEs, RFEs! – RFEs questioning whether the job is a specialty
occupation and whether the degree is related – RFEs regarding educational and experience
evaluations – RFEs questioning the nature of the occupation in
the context of the OES occupation listed in the LCA
– RFEs regarding cap-exempt entities – Other RFEs
Other H-1B Tips and Hot Topics
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• Extended leave at employee’s request – Benching is not allowed – BUT, if period of non-productive status is due to
conditions unrelated to employment that take employee away from duties at his/her voluntary request and convenience, employer not obligated to pay required wage unless required to do so under employer policies or some other law (e.g., ADA)
– Special treatment may be benching in disguise – Treat all employees consistently with regard to
extended leave
Other H-1B Tips and Hot Topics
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• Proposed Rules published on October 19, 2015 – Extend period of OPT available for STEM students for
an additional 24 (instead of 17) months – More clearly define which fields of study are included – Require closer ties to the educational institution during
period of OPT – Allow students who obtain the 24-month STEM OPT
extension to have an additional 60 days of unemployment (for a total of 150 days)
– Employers must be enrolled in E-Verify
• Comment period open until November 18, 2015
OPT STEM Extensions
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Compliance
Roger Y. Tsai Holland and Hart
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• Some federal contractors must screen existing and new hires through E-Verify September 1, 2009
• May 2013 New I-9 released and implemented • Recent OCAHO Administrative Case
concluded penalties should have a “deterrent effect” and should not merely be a cost of doing business. Imposed fine of $605k for 808 violations against event design business.
Immigration Compliance
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• Preventing the knowing employment of undocumented workers – I-9 form (conducting an audit) Document fraud M-274 Guide to the I-9
– Encouraging E-Verify use Federal and State Contractors STEM OPT extensions
I-9s and E-Verify
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Source: Law Logix
E-Verify States
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• Targeting critical infrastructure: airports, federal construction, nuclear plants, research hospitals.
I-9 Audits
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Fines for Knowingly Employing
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Form I-9 Civil Fines
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• Who completes the I-9 on behalf of your company? (M-274)
• What reminders are in place for expiring H-1B/work permits? Are you reverifying work eligibility?
• Are you completing the I-9 within three business days of hire?
• How are you storing I-9s? • Are you using E-Verify? • Are you complying with the E-Verify MOU? • Do you have policies around immigration compliance?
Compliance Questions
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On-Site Inspections
Teri Simmons Arnall Golden Gregory
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• ALWAYS BE PREPARED!!! • The Office of Fraud Detection and National
Security (FDNS) conducts uninformed visits to L-1 and H-1B work sites.
• An officer visits the employer’s office to confirm that the information in the petition is true.
• May ask to interview a company representative (e.g., human resources, petition signatory) and/or foreign national.
On-Site Inspections
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• If the officer discovers fraud, it may result in USCIS denial/revocation of petition – and may expose employer to penalties including severe fines.
• The officer is not required to inform the employer and/or foreign national about an upcoming site visit.
On-Site Inspections
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• What is beneficiary’s U.S. job title, job duties, dates of employment, and/or rate of pay? May ask beneficiary to describe duties in own words.
• If executive/managerial assignment, who does beneficiary direct the management of or, in the alternative, manage? What are their job titles, job duties, and rates of pay?
• With regard to his/her qualifying employment abroad, what was beneficiary’s job title, duties, and dates of employment?
Typical L-1 Site Visit Questions/Requests
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• How is U.S. employer related to former employer abroad?
• Provide company organization chart with names, titles, emails, and phone numbers.
• Provide Form 941, Quarterly Federal Tax Return (including Tax and Wage Report) for past two quarters.
• Provide company tax return, articles of incorporation, subsidiary chart, profile/overview, certificate of existence, and global locations.
Typical L-1 Site Visit Questions/Requests
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• Provide human resource / payroll records regarding the beneficiary’s assignment (e.g., Forms W-2, recent pay statements, annual performance appraisal).
• Provide beneficiary’s business card/state-issued driver’s license.
• Is beneficiary currently employed by petitioner? Full-time or part-time? Hours per week?
• How often is beneficiary paid?
Typical L-1 Site Visit Questions/Requests
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• What is beneficiary’s job title, job duties, dates of employment, and/or rate of pay? May ask beneficiary to describe duties in own words.
• Where does beneficiary perform his/her assignment? On-site? Off-site? Both? Is job site included on approved LCA?
• To whom does the beneficiary report? • Who paid the USCIS filing fees for beneficiary’s
H-1B petition?
Typical L-1 Site Visit Questions/Requests
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• Contact Your Immigration Counsel – Do not respond prior to comprehensive review of petition package, as filed.
• Alert Receptionist and all others in a position to receive guests regarding how to respond to site visit.
• Educate company representatives regarding the requirements of and appropriate responses to beneficiary’s L-1 / H-1B assignment to ensure compliance and consistency with representations on approved visa petition.
• Educate beneficiary with regard to same. • Audit human resource and payroll records for
compliance and consistency with representations on approved visa petition.
Best Practices (How to Be Prepared)
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Visa Bulletin
Todd P. Photopulos Butler Snow
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• Visa Bulletin: Monthly chart issued by the State Department letting immigrants know when they are eligible for a green card.
• Sept. 9: New format announced for employment-based cases for October: – Final action dates – Dates of filing
Visa Bulletin Update
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• Change was significant: pending I-485 benefits – Advance parole – Employment authorization documents – 180 day portability
• Result: Scramble to prepare Adjustment of Status petitions
Visa Bulletin Update
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• Sept. 25: Updated version: regressed the Dates of Filing by several years – China EB2: May 1, 2014 to Jan. 1, 2013 – India EB2: July 1, 2011 to July 1, 2009 – Philippines EB3: Jan. 1, 2015 to Jan. 1, 2010
Visa Bulletin Update
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• Class action lawsuit: Mehta v. Dept. of State, Sept. 28, 2015, W.D. Wash. – Due process: deprivation of liberty interest
without adequate notice – Violation of Administrative Procedures Act – Sought temporary restraining order to turn
back the clock to Sept. 9 – High burden: likelihood of success on the
merits plus immediate and irreparable harm.
Visa Bulletin Update
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• Oct. 7: Federal Judge in Washington denied TRO – No likelihood of success on the merits – Workers could not prove that the Visa Bulletin
created a constitutional right to due process – Workers could not prove irreparable harm – Workers could not prove that the balancing of
equities and public interest rests in their favor
Visa Bulletin Update
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• Oct. 7: Federal Judge in Washington denied TRO (cont’d) – Revised Visa Bulletin did not substantially alter
or diminish the rights of the class members, but rather clarified an erroneous statement of their rights
– Court found persuasive the government’s argument that it is in the public interest for agencies to be able to update their guidance when necessary
Visa Bulletin Update
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• Oct. 14: USCIS makes another change: green card applicants can only file I-485 AOS applications when USCIS says so, after determining that there are more green cards available in a particular category than applicants
Visa Bulletin Update
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Application Final Action Dates for Employment-Based Preference Cases
Visa Bulletin for December 2015
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Employment- Based
All Chargeability Areas Except Those Listed
CHINA - mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01FEB12 01JUN07 C C
3rd 01SEP15 15APR12 22APR04 01SEP15 01AUG07
Other Workers 01SEP15 01AUG06 22APR04 01SEP15 01AUG07
4th C C C C C
Certain Religious Workers C C C C C
5th Non-Regional Center (C5 and T5) C 15DEC13 C C C
5th Regional Center (I5 and R5) C 15DEC13 C C C
Dates for Filing of Employment-Based Visa Applications
Visa Bulletin for December 2015
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Employment- Based
All Chargeability Areas Except Those Listed
CHINA- mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 01JAN13 01JUL09 C C
3rd 01SEP15 01OCT13 01JUL05 01SEP15 01JAN10
Other Workers 01SEP15 01JAN07 01JUL05 01SEP15 01JAN10
4th C C C C C
Certain Religious Workers C C C C C
5th Non-Regional Center (C5 and T5) C 01MAY15 C C C
5th Regional Center (I5 and R5) C 01MAY15 C C C
Contact our Speakers for More Information
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Gabrielle M. Buckley Vedder Price Chicago, IL gbuckley@vedderprice.com Melanie Gurley Keeney Tueth, Keeney, Cooper, Mohan & Jackstadt St. Louis, MO mkeeney@tuethkeeney.com
Roger Y. Tsai Holland and Hart Salt Lake City, UT
rytsai@hollandhart.com
Todd P. Photopulos Butler Snow Memphis, TN todd.photopulos@butlersnow.com Teri Simmons Arnall Golden Gregory Atlanta, GA teri.simmons@agg.com
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