Embed Size (px)
Citation preview
“IF I ALREADY EMPLOY THE INDIVIDUAL, THEN WHY DO I HAVE TO RECRUIT FOR THIS POSITION?”
Presented by:
AGENDA
• WHAT IS AN IMMIGRANT VISA?
• HOW CAN MY EMPLOYEE OBTAIN AN IMMIGRANT VISA?
• WHAT IS THE PERM PROCESS?
• QUESTIONS & ANSWERS
WHAT IS AN IMMIGRANT VISA?
• AVAILABLE FOR HIRING ESSENTIAL PROFESSIONAL STAFF ON A “PERMANENT” BASIS
• PERMANENT RESIDENCE• CAN STAY IN THE US INDEFINITELY• CAN WORK FOR ANYONE• NOT US CITIZENS – CANNOT VOTE; COULD
LOSE STATUS FOR EXTENDED ABSENCE FROM US OR COMMITTING CERTAIN OFFENSES
HOW CAN MY EMPLOYEE OBTAIN AN IMMIGRANT VISA?• FIRST PREFERENCE (EB-1)• EXTRAORDINARY ABILITY, OUTSTANDING RESEARCHERS AND
PROFESSORS, AND MANAGERIAL OR EXECUTIVE TRANSFEREES• NO LABOR CERTIFICATION REQUIREMENT
• SECOND PREFERENCE (EB-2)• EXCEPTIONAL ABILITY, NATIONAL INTEREST WAIVER (NIW), AND
ADVANCED DEGREE PROFESSIONALS• NO LABOR CERTIFICATION FOR NIW & EXCEPTIONAL ABILITY
• THIRD PREFERENCE (EB-3)• PROFESSIONAL, SKILLED, AND UNSKILLED WORKERS
• WHY DO THE PREFERENCE CATEGORIES MATTER?
FIRST PREFERENCE:EXTRAORDINARY ABILITY• EXTRAORDINARY ABILITY FOREIGN NATIONALS:
• IN THE SCIENCES, ARTS, EDUCATION, BUSINESS, OR ATHLETICS THROUGH SUSTAINED NATIONAL OR INTERNATIONAL ACCLAIM
• ACHIEVEMENTS MUST BE RECOGNIZED IN THE FIELD THROUGH EXTENSIVE DOCUMENTATION
• MUST HAVE:
• MAJOR AWARD OR PRIZE (NOBEL, FIELDS, ETC.); OR
• DOCUMENTATION FROM 3 OF 10 CATEGORIES SPECIFIED IN THE REGULATIONS; OR
• OTHER “COMPARABLE EVIDENCE”
• SCRUTINY HIGH
SECOND PREFERENCE: NATIONAL INTEREST WAIVER• WAIVER OF JOB-OFFER REQUIREMENT (NO LABOR
CERTIFICATION)
• “NATIONAL INTEREST” TEST:• FOREIGN NATIONAL WILL WORK IN AREA OF “SUBSTANTIAL
INTRINSIC MERIT”
• FOREIGN NATIONAL’S PROPOSED ACTIVITY “NATIONAL IN SCOPE”
• “FOREIGN NATIONAL WILL SERVE THE NATIONAL INTEREST TO A SUBSTANTIALLY GREATER DEGREE THAN AN AVAILABLE U.S. WORKER HAVING THE SAME MINIMUM QUALIFICATIONS”
SECOND PREFERENCE: EXCEPTIONAL ABILITY & ADVANCED DEGREE PROFESSIONALS• FOREIGN NATIONALS OF “EXCEPTIONAL
ABILITY” IN THE SCIENCES, ARTS OR BUSINESS• INDIVIDUAL WILL SUBSTANTIALLY
BENEFIT THE U.S. ECONOMY, CULTURAL, OR EDUCATIONAL INTERESTS
• REQUIRES THE FILING OF A LABOR CERTIFICATION WITH USCIS AND
• 3 OF 6 REGULATORY CRITERIA
• ADVANCED DEGREE PROFESSIONALS• MUST HOLD A MASTER DEGREE, ITS
EQUIVALENT OR HIGHER (OR BACHELOR’S + 5 YEARS EXPERIENCE)
• MUST OBTAIN A LABOR CERTIFICATION THROUGH THE U.S. DOL
THIRD PREFERENCE:PROFESSIONALS AND OTHER WORKERS
• REQUIRES A LABOR CERTIFICATION• PROFESSIONALS = POSITION REQUIRES AT LEAST A
BACHELOR DEGREE IN A SPECIFIC FIELD• OTHER WORKERS = POSITION REQUIRES AT LEAST TWO
YEARS OF RELATED WORK EXPERIENCE• THIS CATEGORY, BECAUSE OF THE “LOW” MINIMUM
REQUIREMENTS, IS GENERALLY “BACKLOGGED” AND THE GREEN CARD PROCESS CAN BE VERY SLOW AND LABORIOUS
PERM – LABOR CERTIFICATION • PROGRAM ELECTRONIC REVIEW MANAGEMENT (PERM) SYSTEM
IMPLEMENTED ON MARCH 28, 2005
• MAY BE FILED ELECTRONICALLY OR BY MAIL
• HINT – DON’T FILE BY MAIL UNLESS IT IS AN EMERGENCY
• DECISION FOR ELECTRONICALLY FILED PERM TAKES APPROXIMATELY 9-12 MONTHS
• LABOR CERTIFICATION IS DESIGNED TO TEST THE U.S. LABOR MARKET TO ENSURE THAT NO MINIMALLY QUALIFIED U.S. WORKERS ARE READY, WILLING, AND ABLE TO FILL THE POSITION
• THE LABOR CERTIFICATION IS EMPLOYER, POSITION, AND GEOGRAPHIC SPECIFIC (WITH VERY LIMITED EXCEPTIONS)
• MINIMUM REQUIREMENTS = MINIMUM EDUCATION, TRAINING, EXPERIENCE, AND SPECIAL REQUIREMENTS NEEDED TO ADEQUATELY COMPLETE THE CORE DUTIES OF THE POSITION
STEP ONE – PREVAILING WAGES• THE JOB TITLE, DUTIES, EDUCATIONAL AND EXPERIENTIAL REQUIREMENTS,
AND ANY SPECIAL REQUIREMENTS ARE SUBMITTED TO THE U.S. DOL FOR THE ISSUANCE OF A PREVAILING WAGE DETERMINATION
• U.S. DOL LOOKS AT COMPARABLE POSITIONS IN THE GEOGRAPHIC LOCATION AND MAKES A DETERMINATION BASED ON THOSE POSITIONS AND THE EMPLOYER’S REQUIREMENTS TO RENDER THE PREVAILING WAGE
• EMPLOYER MUST PAY THAT WAGE OR ABOVE
• FOUR LEVEL WAGE SYSTEM – LEVEL I IS GENERALLY “ENTRY” LEVEL AND LEVEL IV IS GENERALLY “EXECUTIVE” OR “SENIOR-LEVEL” POSITIONS
• PREVAILING WAGE MUST BE VALID DURING RECRUITMENT PERIOD OR VALID WHEN YOU FILE
PREVAILING WAGE CONSIDERATIONS
• WHAT LEVEL DEGREE DOES THE JOB REQUIRE?• WATCH FOR FOREIGN DEGREE EQUIVALENT – IS IT THE SAME AS A 4-
YEAR US DEGREE – MUST MARK #8 COMBINATION OF EDUCATION AND EXPERIENCE
• HOW MUCH EXPERIENCE IS REQUIRED?• BE CAREFUL OF “TAILORING” THE YEARS OF EXPERIENCE TO THE
SPECIFIC EMPLOYEE – MUST BE THE COMPANY’S ACTUAL MINIMUM REQUIREMENTS
• SPECIAL SKILLS?• DOES THE POSITION REQUIRE SPECIFIC SKILLS?• BE CAREFUL – STICK TO TRUE MINIMUM REQUIREMENTS• FOREIGN LANGUAGE REQUIRED?
STEP TWO – RECRUITMENT
• TIMING OF RECRUITMENT• MUST BE LESS THAN 180 DAYS OLD
AT TIME OF FILING• RECRUITMENT DOES NOT HAVE TO
COVER ENTIRE 180 DAY PERIOD• MUST HAVE 30 DAY “QUIET”
PERIOD BEFORE FILING• ONE ALTERNATIVE FORM OF
RECRUITMENT CAN STILL BE TAKING PLACE
• BE CAREFUL AS MISTAKE IN COUNTING DAYS WILL CAUSE A DENIAL
RECRUITMENT, CONTINUED
• REQUIRED RECRUITMENT
• 30-DAY JOB ORDER WITH THE STATE WORKFORCE AGENCY
• 2 SUNDAY NEWSPAPER ADS OR 1 PROFESSIONAL JOURNAL
• CONSECUTIVE SUNDAYS
• PROFESSIONAL JOURNAL MUST HAVE PRINT PUBLICATION
• NOTICE OF JOB AVAILABILITY (PAPER POSTING)
• MINIMUM OF TEN CONSECUTIVE BUSINESS DAYS
• WATCH FOR LEGAL HOLIDAYS, WEEKENDS
RECRUITMENT, CONTINUED• ALTERNATIVE FORMS – MUST HAVE 3 OUT OF 10• JOB FAIRS• JOB SEARCH WEB SITE • EMPLOYER’S WEB SITE• ON-CAMPUS RECRUITING• TRADE OR PROFESSIONAL ORGANIZATIONS• PRIVATE EMPLOYMENT FIRMS• EMPLOYEE REFERRAL PROGRAM, IF IT INCLUDES IDENTIFIABLE
INCENTIVES• A NOTICE OF THE JOB OPENING AT A CAMPUS PLACEMENT
OFFICE, IF THE JOB REQUIRES A DEGREE BUT NO EXPERIENCE• LOCAL AND ETHNIC NEWSPAPERS• RADIO AND TELEVISION ADVERTISEMENTS
STEP THREE – RESUME REVIEW
• EMPLOYER MUST REVIEW RESUMES AGAINST THE STATED MINIMUM QUALIFICATIONS
• THE ATTORNEY CANNOT ASSIST IN THE REVIEW OF RESUMES
• IF THERE IS NOT A LAWFUL, JOB-RELATED REASON TO DISQUALIFY THE CANDIDATE, THEN THE EMPLOYER MUST INTERVIEW THE CANDIDATE
• MUST REVIEW RESUMES WITHIN A “REASONABLE” TIME-PERIOD
• IF THE RECRUITMENT RESULTS IN A MINIMALLY QUALIFIED U.S. WORKER, THEN THE PROCESS MAY NEED TO END AT THIS STEP
RECRUITMENT DOCUMENTATION• AUDIT FILE
• EMPLOYER’S STATEMENT OF RECRUITMENT RESULTS
• APPLICANT RESUMES
• REJECTION LETTERS OR OTHER EVIDENCE THAT INDIVIDUAL WAS NOT QUALIFIED FOR POSITION
• COPIES OF ALL RECRUITMENT – PRINT OUTS FROM WEBSITES, ETC.
• DOCUMENTATION NOT FILED WITH APPLICATION
• RECRUITMENT DOCUMENTATION MUST BE KEPT FOR A MINIMUM OF FIVE YEARS
STEP FOUR – FILING • SUBMIT FORM ETA 9089 ELECTRONICALLY OR BY
MAIL TO DEPARTMENT OF LABOR• SUBMITTED ELECTRONICALLY
• SUBMITTED WITHOUT SIGNATURE
• NO SUPPORTING DOCUMENTS ALLOWED
• SUBMITTED BY REGULAR MAIL
• SIGNATURES REQUIRED
• NO SUPPORTING DOCUMENTS ALLOWED
• DO NOT RECOMMEND UNLESS COMPANY CANNOT REGISTER
POST-FILINGDEPARTMENT OF LABOR HAS THREE OPTIONS:
1. CERTIFY THE APPLICATION2. DENY THE APPLICATION– MUST STATE REASONS FOR DENIAL– MUST STATE THE PROCEDURE FOR REQUESTING REVIEW OF
THE DENIAL– MUST STATE THAT THE REVIEW REQUEST MUST BE FILED
WITHIN 30 DAYS– MUST STATE THAT A NEW APPLICATION CAN BE FILED AT ANY
TIME (PRACTICE NOTE: CANNOT RE-FILE APPLICATION IF ANY OF THE RECRUITMENT EFFORTS ARE OUTSIDE THE 180 DAY RECRUITMENT WINDOW, OR IF THERE IS A PENDING REQUEST FOR REVIEW)
DEPARTMENT OF LABOR HAS THREE OPTIONS:
3. SELECT FOR AUDIT– AUDIT LETTER WILL LIST DOCUMENTS/INFORMATION NEEDED
– EMPLOYER WILL BE GIVEN 30 DAYS TO RESPOND
– IF THERE IS A FAILURE TO RESPOND, THE CASE WILL BE DENIED, AND NO APPEAL
– IF THE EMPLOYER SUBSTANTIALLY FAILS TO RESPOND:
• APPLICATION WILL BE DENIED
• MAY RESULT IN THE NEED FOR SUPERVISED RECRUITMENT FOR UP TO TWO YEARS
• MAY BE GRANTED ONE EXTENSION OF 30 DAYS
POST-FILING, CONTINUED
WHAT TRIGGERS AN AUDIT?• FOREIGN LANGUAGE REQUIREMENT
• EXPERIENCE REQUIREMENT THAT EXCEEDS THE SPECIFIC VOCATIONAL PREPARATION (SVP) CODE FOR THE POSITION
• UNDULY RESTRICTIVE REQUIREMENTS
• FAILURE TO CHECK THE APPROPRIATE BOXES
• AUDITS CAN ALSO BE “RANDOM”
POST-APPROVAL CONSIDERATIONS
• A LABOR CERTIFICATION MAY BE REVOKED BY THE CERTIFYING OFFICER IF HE OR SHE FINDS THE CERTIFICATION WAS NOT JUSTIFIED
• THERE IS NO TIME LIMIT FOR REVOCATION
• A LABOR CERTIFICATION MAY BE INVALIDATED BY DHS OR DOS FOR FRAUD OR WILLFUL MISREPRESENTATION OF A MATERIAL FACT
“GREEN CARD” PRACTICE POINTERS
• MUST INITIATE THE “GREEN CARD” PROCESS (E.G., LABOR CERTIFICATION) AT LEAST ONE-YEAR PRIOR TO THE END OF THE EMPLOYEE’S SIX-YEAR MAXIMUM STAY IN H-1B STATUS TO BE ELIGIBLE FOR ADDITIONAL STAY IN H-1B STATUS
• IF EMPLOYER IS CONSIDERING THE FOREIGN NATIONAL CANDIDATE FOR “LONG-TERM” EMPLOYMENT, THEN THE “GREEN CARD” MUST BE PART OF THAT CONVERSATION AND MUST BE CONSIDERED IN THE MAINTENANCE OF EMPLOYMENT PROCESS
• CAVEAT: ONCE A FOREIGN NATIONAL HAS THE “GREEN CARD,” THEN HE OR SHE IS ELIGIBLE FOR “OPEN-MARKET” EMPLOYMENT
• GREEN CARD “PORTABILITY” – IF AN EMPLOYEE HAS REACHED THE THIRD STEP IN THE PROCESS (ADJUSTMENT OF STATUS) AND THE EMPLOYEE IS BEING OFFERED SUBSTANTIALLY COMPARABLE EMPLOYMENT, THEN THE EMPLOYEE MAY BE ELIGIBLE TO “PORT” THE GREEN CARD APPLICATION TO A NEW EMPLOYER AFTER THE ADJUSTMENT OF STATUS HAS BEEN PENDING 180 DAYS
