NAVIGATING THE U.S. BUSINESS IMMIGRATION MAZE: … of Attendance/Nov17... · •The L-1 (Intracompany Transferee) category was created to facilitate the transfer of key employees

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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

[email protected]

Speakers

2

mailto:[email protected]

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

[email protected]

Melanie Gurley Keeney

Tueth, Keeney, Cooper, Mohan &

Jackstadt

St. Louis, MO

[email protected]

Speakers

5



Teri Simmons

Arnall Golden Gregory

Atlanta, GA

[email protected]

Roger Y. Tsai

Holland and Hart

Salt Lake City, UT

[email protected]

Speakers

6



L-1 Visas


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


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;


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

11

• 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.


13

• 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.


14

• 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


15

• 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

16

• 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

17

• 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.


18

• 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


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


20

Recent Adjudication Data

21

• 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

22

H-1Bs and STEM


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

24

• 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

25

• Requires Labor Condition Application (LCA)

– Prevailing wage

– Form 9035 iCert System and processing

– Posting obligation

– Public Access File

H1-B 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


28

• 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


29

• 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?


30

• 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

31

• 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

32

• 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

33

• 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

34

• 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

37

• 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

38

• 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

39

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

42

Source: Law Logix

E-Verify States

43

• Targeting critical infrastructure: airports, federal

construction, nuclear plants, research hospitals.

I-9 Audits

44

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


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.


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?


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?


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


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


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.


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


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


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


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


Vedder Price

Chicago, IL

[email protected]


Tueth, Keeney, Cooper,

Mohan & Jackstadt

St. Louis, MO

[email protected]

Roger Y. Tsai

Holland and Hart

Salt Lake City, UT

[email protected]

Todd P. Photopulos

Butler Snow

Memphis, TN

[email protected]

Teri Simmons


Atlanta, GA

[email protected]






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