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Page 1: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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Immigration Law Options and

Concerns for the Pork Industry

Presented By:

Bernhard MuellerRaleigh, NC

EMPLOYERS & LAWYERS, WORKING TOGETHER

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Attracting Foreign Workers

� When you decide to recruit a foreign worker either in the U.S. or from abroad, US immigration laws kick in.

� Whether to pursue work visa sponsorship depends on many factors, such as:

� Difficulty with recruiting US workers

� Cost of visa sponsorship

� Time it takes to obtain work visas

� Type of visa the individual presently holds

� Cost of legal compliance with regulatory mandates

� Long-term goal of the company vis-à-vis the worker

Page 2: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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Costs & Benefits For Employer

Recruiting foreign workers is in most cases more

expensive than hiring local US workers.

Costs include:� Initial expenses to obtain the visa for the foreigner

� Continued costs of regulatory compliance

� Uncertainty about the outcome of the visa application (what if the application is denied?)

� Uncertainty about when the foreigner can actually start working for the US company

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Costs & Benefits For Employer

Hiring foreign workers can bring benefits.

Benefits include:� Increased diversity in workforce

� Better employee loyalty (though not guaranteed)

� Access to wider recruitment / talent pool

� Once the immigration process is set up, subsequent cases will be less costly

� Building relationships with foreign academic institutions for continued supply of talent

Page 3: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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Need for Immigration Law Providers

� Immigration law is highly technical with many hidden traps.

� Companies should not try to “learn” immigration law as they apply for a foreign national.

� Simple and innocent mistakes can delay the process or result in denials of applications.

� Non-compliance can result in significant fines and bars from obtaining immigration benefits in the future.

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Working with Immigration Law Providers

There are several immigration law providers to

choose from, depending on the company’s needs:

� Immigration lawyers

� International Exchange Program providers

� Immigration consulting firms

� Federal agencies responsible for immigration laws:

� US Citizenship and Immigration Services (USCIS)

� US Department of State (DOS)

� US Department of Labor (DOL)

Page 4: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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Working with Immigration Law Providers

� Government agencies only provide generalized guidance, which is not tailored to a specific need.

� International Exchange Program providers deal primarily with the J-1 exchange visa system for trainees / interns.

� Immigration lawyers are best suited to assist the company with employment-based immigration matters.

� Immigration consulting firms may not be able to provide employment-based immigration services.

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How To Get Started

� The type of employment-based immigration benefit for a foreigner depends on the proposed job, the individual’s qualifications and current immigration status.

� The company should have a clear understanding of the process and costs involved, before making commitments to the foreign national.

� If possible, build in sufficient buffer time to avoid surprises down the road.

Page 5: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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Immigration Vocabulary

� Nonimmigrant Aliens

• Temporary / finite period of stay for a defined purpose

• Alphabet Soup classifications of visas from A to TN

� Permanent Resident Aliens (Immigrants / Green Card holders)• Indefinite stay / duration (lifetime, generally)

• Unrestricted and permanent work authorization

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The Nonimmigrant Visa Alphabet Soup

� J-1 Trainees / Interns

� H-3 Trainees

� F-1 Students

� H-1B Professionals / Specialty Occupations

� L-1 Intra-Company Transferees

� TN NAFTA Professionals

� O-1 Extraordinary Ability Aliens

� H-2B Seasonal/Peak-load Workers/Laborers

� H-2A Seasonal Agricultural Workers/Laborers

Page 6: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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J-1 Trainees/Interns

J-1 trainees/interns can work in the US for up to 18 months

� Application is filed with a J-1 sponsoring agency / organization

� No USCIS application; visa issued at US Consulate

� 2-year foreign residence requirement may apply after end of program

� FICA exempt

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H-3 Trainees

H-3 trainees may work in the US for up to 24 months

� Requires a detailed discussion of the training plan & training segments

� Must show that training is unavailable in trainee’s home county

� Must show that training will assist trainee in preparing for a future assignment overseas

� Can file Blanket H-3 petition for groups of trainees

Page 7: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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F-1 Students

Most foreign students in the US have an F-1 student visa.

They can work if the school has approved the foreign student

for either:

(1) Curricular training;

(2) Hardship employment; or

(3) Optional Practical Training (1-year post-graduation visa).

F-1 Students are FICA exempt

Students will often ask for H-1B visa sponsorship as well. Quota

issues may come up.

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H-1B Visa Requirements

Option for hiring college graduates

� Job must be a Specialty Occupation = Professional

� Position must require a Bachelor’s Degree in specific specialty (e.g., food safety, agricultural science, etc.)

� Individual must have the required Bachelor degree (or equivalent through education and experience)

� Employer must pay at least the prevailing wage

� Employer must comply with detailed regulations issued by the DOL (record keeping, wages, working conditions, etc.)

Page 8: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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H-1B Visa Concerns

� Annual cap — 65,000 visas only per fiscal year

� Special 20,000 H-1B quota for U.S. Master’s degree graduates (exempt from general 65,000 quota); H-1Bs for Singapore and Chile; E-3 for Australia

� Duration of H-1B: 3 year increments; total 6 years,

� Can file H-1B extensions beyond 6-year limitation if green card process started in advance (discussed later)

� “Portable” H-1Bs: Can work for new employer upon USCIS filing

� Employer is subject to random audits by the USCIS under the Anti-Fraud provisions of the H-1B regulations.

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L-1 Intra-company Transferees

� Applies to foreign employees with prior work experience abroad with a related company (parent, subsidiary, affiliate, branch).

� Employee must fill either an executive/managerial position or a job requiring specialized knowledge about the company’s technology, products or services.

� May be employed by the US company for 5 to 7 years.

� Employer is subject to random audits by the USCIS under the Anti-Fraud provisions of the H-1B regulations.

Page 9: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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TN Visa — NAFTA Professionals

� Trade NAFTA (TN) classification - Available only to Canadian and Mexican citizens.

� U.S. position must be included on specific list of NAFTA occupations: e.g., agricultural scientists, range manager, animal breeder, veterinarian, geneticist, biologist, etc.

� Allowed to remain in the US for one year at a time (is renewable).

� Foreign national must have credentials required for the profession.

� Canadians apply directly at port-of-entry (border or airport).

� Mexicans apply at U.S. Consulate in Mexico.

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O-1 Visas – Extraordinary Ability

� Reserved for foreign nationals who have risen to the top of the field, e.g., researchers, scientists, etc.

� Requires proof of extraordinary achievement (patents or awards, publications, peer letters).

� Visa status initially valid for 3 years (subsequent extension in1-year increments possible).

� Application filed with USCIS.

� Can be an alternative to the H-1B quota for some individuals.

Page 10: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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H-2B Visa for Laborers

� Used for foreign skilled & unskilled laborers� Only good for a temporary stay (one year or less)� Must show unavailability of U.S. workers (Labor Certification

Application filed with DOL)

� Valid for increments of 11 months or less

� Annual visa cap of 66,000: has already been reached for the rest of FY 2008 [Rep. Virginia Foxx (R-NC) and Thelma Drake (D-VA) introduced bill to create exemption for returning workers]

� Must fit one of four categories (can be hard to prove):(1) One-time Occurrence (2) Seasonal Need (3) Peak-load Need; or (4) Intermittent Need

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H-2A Visa for Seasonal Ag Workers

� Used for bringing foreign workers into US to perform agricultural labor or services of a temporary or seasonal nature.

� No annual cap on H-2A visas, but only 75,000 workers came last year under that visa.

� The DOL and DHS have proposed changes to the regulations to streamline process, provide additional worker protections and increase penalty levels.

Page 11: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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H-2A Visa for Seasonal Ag Workers

� Only good for a temporary stay (less than 12 months)

� Must show unavailability of U.S. workers (Labor Certification Application filed with DOL)

� Very specific Adverse Effect Wage Rate requirements imposed by DOL (not necessarily reflective of market wages!) may be subject to change under new regulations

� Must provide transportation and housing (or pay for same)

� Employer must comply with detailed DOL regulations about recruitment of US workers, work guarantees to employees, insurance, etc.

� Employers are subject to DOL compliance audits.

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Time & Money Considerations

� Most work visa applications must first be approved by the USCIS

� Visa costs range from $320 to over $2,000� Lawyer fees� Regular Processing Time: Several Months� Expedited Processing (15 days or less) – extra $1,000 fee

� Once approved by USCIS, foreign worker must get visa in passport at the U.S. Consulate abroad.

� Personal visa interview required� May take several weeks before appointment slot available at the Consulate

� Applicant must pay visa application fee(s)� Security Background Checks

Page 12: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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Immigrant Visas (“Green Cards”)

� Family Based Categories

� Employment Based Categories

� Overall annual limit in addition to “per country”limits

� Processing times – from 12 months to several years

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Employer-Sponsored Green Cards

Step 1: Labor Certification� Labor market test / recruitment of US workers

� Total time required typically from 4 months and up

Step 2: Immigrant Petition to USCIS� Processing time typically between 4 to 12 months

Step 3: Application for Permanent Residence -Adjustment of Status� Processing time typically between 6 to 30 months

Page 13: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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Time & Money Considerations

Employer-sponsored green cards can be

expensive and time consuming:� High advertisement costs (at least $1,000 dollars)

� Lawyer fees

� Fees to the government

� Lengthy process

� Some green card categories have a long waiting period (due to annual quotas and per-country quotas)

� Mandatory background checks can lead to several years processing delays

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Immigration Law Compliance

� Continued ICE Enforcement Focus on Food Processing Industry

� Continued Exposure to Raids Due to Workforce Composition

� Increased ICE Focus on Criminal Prosecution and Asset Forfeitures

� Increases in Identity Theft

Page 14: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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Recent ICE Enforcement Activity

April 2006 – New Interior Enforcement Strategy Announced

Goals:� Target employers who knowingly employ unauthorized workers by

bringing criminal charges against them.� Eliminate SSN abuse.

Result: � An increase in worksite raids, arrests, and federal charges related to

illegal employment of unauthorized workers.

Common Theme: � Many of targeted employers had high number of employees with

mismatched SSNs.

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Recent ICE Enforcement Activity

Statistics: Arrests for criminal violations in FY 1999 = 24

Arrests for criminal violations in FY 2006 = 716

Arrests for criminal violations in FY 2007 = 863

During the first three quarters of FY 2007, ICE obtained criminal fines, restitutions, and civil judgments in excess of $30 million.

Page 15: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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Recent ICE Enforcement ActivityEMPLOYERS & LAWYERS, WORKING TOGETHER

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Recent Enforcement Cases

Koch Foods – August 2007

� Criminal search warrants in Ohio and Illinois

� Arrest of more than 160 employees for immigration violations

� Two-year ICE investigation

� Some evidence that Koch may have knowingly hired illegal aliens at its poultry processing and packaging facility in Ohio

Page 16: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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Recent Enforcement Cases

Quality Service Integrity Inc. (QSI) – April 2007

� Sanitation company for food-processing industry

� 49 illegal aliens administratively arrested

� 13 managers and employees arrested on criminal charges:� Aggravated identity theft and aiding and abetting aggravated identity theft in connection with alleged hiring of illegal aliens

� Harboring illegal aliens

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Recent Enforcement Cases

Fresh Del Monte Produce – June 2007

� Criminal search warrant executed

� Arrest of more than 160 illegals

� Six-month investigation into fraudulent documents obtained at American Staffing Resources

Page 17: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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Recent Enforcement Cases

George's Processing Inc. – May & June 2007

� 28 employees indicted on criminal immigration violations: aggravated identity theft, falsely claiming to be US citizens, reentry after deportation, Social Security fraud, illegal alien in possession of a firearm

� 136 persons arrested and charged with administrative violations

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Recent Enforcement Cases

Petit Jean Poultry, Inc. – July 2007

� 119 illegal aliens arrested for identity theft

� stemmed from an ICE investigation leading to the December 2004 arrest of a former Petit Jean employee for multiple counts of selling identity documents and SSN cards

Page 18: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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Tips for Avoiding I-9 Liability

� Implement a company-wide comprehensive written I-9 compliance policy

� Designate one person who will have ultimate authority over the I-9 compliance program

� Make the I-9 policy part of the overall personnel and hiring policy

� Provide clear guidance to hiring managers and other personnel on I-9 procedures

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Tips for Avoiding I-9 Liability

� Do not complete an I-9 before offering the position to the prospective hire

� Conduct self audit and make corrections

� Keep a tickler system

� Implement a payroll system that requires a completed I-9 before placing an employee on the payroll

Page 19: Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments; total 6 years, Can file H-1B extensions beyond 6-year limitation if green card process

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Tips for Avoiding I-9 Liability

� Keep I-9 files separate from personnel files

� Remove I-9s that exceed the retention rule

� Promptly respond to SSA No-Match letters

� Consult with immigration counsel

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Thank you for your time.

Bernhard Mueller

(919) 789-3177


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