AUDIO CONFERENCE ON
NAVIGATING THE U.S. BUSINESS IMMIGRATION MAZE: PRACTICAL GUIDANCE FOR EMPLOYERS
November 17, 2015
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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
Speakers
2
3
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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
Melanie Gurley Keeney
Tueth, Keeney, Cooper, Mohan &
Jackstadt
St. Louis, MO
Speakers
5
Teri Simmons
Arnall Golden Gregory
Atlanta, GA
Roger Y. Tsai
Holland and Hart
Salt Lake City, UT
Speakers
6
L-1 Visas
Gabrielle M. Buckley
Vedder Price
7
• 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
8
• 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
9
• “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
10
• “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
19
• 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
23
• 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
H1-B Basics
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• Requires Labor Condition Application (LCA)
– Prevailing wage
– Form 9035 iCert System and processing
– Posting obligation
– Public Access File
H1-B Basics
26
• 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
35
• 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
36
• 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
40
• 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
41
• 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
43
• Targeting critical infrastructure: airports, federal
construction, nuclear plants, research hospitals.
I-9 Audits
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Fines for Knowingly Employing
45
Form I-9 Civil Fines
46
• 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
47
On-Site Inspections
Teri Simmons
Arnall Golden Gregory
48
• 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
49
• 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
50
• 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
51
• 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
52
• 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
53
• 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
54
• 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)
55
Visa Bulletin
Todd P. Photopulos
Butler Snow
56
• 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
57
• 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
58
• 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
59
• 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
60
• 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
61
• 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
62
• 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
63
Application Final Action Dates for Employment-Based Preference Cases
Visa Bulletin for December 2015
64
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
65
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
66
Gabrielle M. Buckley
Vedder Price
Chicago, IL
Melanie Gurley Keeney
Tueth, Keeney, Cooper,
Mohan & Jackstadt
St. Louis, MO
Roger Y. Tsai
Holland and Hart
Salt Lake City, UT
Todd P. Photopulos
Butler Snow
Memphis, TN
Teri Simmons
Arnall Golden Gregory
Atlanta, GA
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