immigration law options and concerns for the pork industry · duration of h-1b: 3 year increments;...

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Immigration Law Options and

Concerns for the Pork Industry

Presented By:

Bernhard MuellerRaleigh, NC

EMPLOYERS & LAWYERS, WORKING TOGETHER

FIRST CLASS SERVICE, COAST TO COAST

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

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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



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

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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.



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)

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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.



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.

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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



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

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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



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

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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.



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.)

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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.



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.

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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.



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.

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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



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.

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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.



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

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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



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

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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



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

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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.



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.

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Recent ICE Enforcement ActivityEMPLOYERS & LAWYERS, WORKING TOGETHER


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

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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




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

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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




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

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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




� 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

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� 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



Thank you for your time.

Bernhard Mueller

(919) 789-3177

immigration law options and concerns for the pork industry · duration of h-1b: 3 year increments;...

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