NAVIGATING THE U.S. BUSINESS IMMIGRATION MAZE: … of Attendance/Nov17... · •The L-1...

AUDIO CONFERENCE ON

NAVIGATING THE U.S. BUSINESS IMMIGRATION MAZE: PRACTICAL GUIDANCE FOR EMPLOYERS

November 17, 2015

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The undersigned certifies that ______________________________________ attended “‘Navigating the U.S. Business Immigration Maze: Practical Guidance for Employers” Audio Conference sponsored by the Employment Law Alliance. The program consisted of 90 instructional minutes. The program contained no credit for continuing legal education for legal ethics, elimination of bias in the legal profession or prevention, detection and treatment of substance abuse.

To be completed by Attorney or Attendee after participation in the above-named activity.

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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

If you need another copy of the power point

slides, open a new window, go to the ELA

homepage (www.employmentlawalliance.com)

and click the webinar title.

If you lose your audio for any reason,

or prefer to listen by phone, click the

phone icon just above the chat box.

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

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

L-1 Visas

Vedder Price

• 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

• 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

Background

• “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;

Background

• “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

• 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

• 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.

• 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-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

• 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

• 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

• 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.

• 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

• 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

Recent Adjudication Data

• 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

H-1Bs and STEM

Tueth, Keeney, Cooper, Mohan & Jackstadt

• H-1B basics

• Changes in worksite location

• Temporary locations and short-term

placements

• Other H-1B tips and hot topics

Overview

• 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

• Requires Labor Condition Application (LCA)

– Prevailing wage

– Form 9035 iCert System and processing

– Posting obligation

– Public Access File

H1-B Basics

• 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

• 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

• 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

• 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?

• 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

• 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

• 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

• 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

• 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

• 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

• 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

– RFEs regarding cap-exempt entities

– Other RFEs

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