“Your Corporate Immigration Program - Successful Strategies to Ensure Full Compliance”

Your Corporate Immigration Program – Successful Strategies to Ensure Full ComplianceSeptember 17, 2015

Presented by: Maria Kallmeyer, Eric Ledbetter and Grant Sovern

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• Green cards broken down by category and country of origin

• Some categories and/or countries backlogged more than 10 years

• Priority Date is the date the first step of the green card process was filed

• Only 140,000 green cards through employers available each year

• Only when Priority Date becomes current could one file AND be approved for green card

Visa Bulletin and Backlogs for Green Cards

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New Process

• Two sets of priority dates: Dates for Filing Applications, and Application Final Action Dates

• When first date is current may file

• But may not be approved until second date is current


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Benefits of Filing I-485

• Employment Authorization Document (EAD) for self and spouse

• Advance Parole for self and spouse

• I-485 Portability: may move to new position 6 months after filing

• Locking in child's green card eligibility as a minor dependent of green card beneficiary


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Must Applications be Filed Immediately??

• May file after October 1

• Probably won't retrogress, but could - won't know until 10/10

• May file without medical exam, and shouldn't since only valid for one year

• Family members may file as well


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• Must work for one year out of the last three years outside the U.S. at subsidiary, parent, or affiliate before transfer

• Limited to 5-7 years

• Must be manager or have specialized knowledge

• With blanket approval apply directly at U.S. consulate, otherwise must get prior approval from CIS in the U.S.

• Bachelor's Degree required for specialized knowledge employees using the blanket approval

L-1: Intra-company Transferee – What is it?

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• Vague terminology in the regulations:– “special knowledge of organization’s product, service, research, equipment, techniques,

management or other interests and its application in international markets” OR

– “Advanced knowledge or expertise in the organization’s processes and procedures”

• Inconsistent standards between the Immigration Service’s regional processing centers.

• Inconsistent standards among U.S. consulates abroad - esp. Chennai.

L-1B Specialized Knowledge - Challenges

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Table 1L-1B Denial Rates for Employees Transferred into the U.S.

FY 2006 to FY 2014

The National Foundation for American Policy also indicates that the L-1B application rate has dropped 23% between FY2012 and FY2014.


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Table 2L-1B Denial Rates for Employees Transferred from India and the Rest of the World

(FY 2012-2014)


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L-1B Specialized Knowledge – Challenges

Table 3L-1B Denial Rates by Country: FY2012-2014

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Table 5Initial L-1B Applications

Table 6Extensions of L-1B Applications

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Table 7USCIS Rate of Requests for Evidence for L-1B Petitions

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• USCIS Issued a new memo on specialized knowledge which became effective on August 31, 2015

• Expanded definition of specialized knowledge:

– Distinct or uncommon in comparison to that generally found in the particular industry

– Application: review the beneficiary’s knowledge of how the organization manufactures, produces, or develops product or services

• Expanded definition of advanced knowledge:

– Greatly developed or further along in progress, complexity and understanding than that generally found within the employer

– Application: review the beneficiary’s knowledge of the organization’s processes and procedures

L-1B Specialized Knowledge - Solutions

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• USCIS issued a new memo on Specialized Knowledge.

– Preponderance of Evidence Standard

– Specialized knowledge doesn’t have to be narrowly held within an organization

– USCIS can review compensation packages to determine whether knowledge is really specialized

– Offsite Placement of L-1Bs:

• Specialized knowledge of the end-client’s own customized solution can be considered along with knowledge of the petitioner’s products and services


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• Factors CIS may consider:

– Knowledge of foreign operating conditions that is significant value to the U.S. operations

– Employed abroad on assignment that enhanced employer’s productivity, competitiveness, image, or financial position

– Knowledge can only be gained through prior experience with petitioning organization

– Knowledge cannot easily be transferred or taught without significant cost

– Knowledge of process that is sophisticated, complex or highly technical, although not necessarily unique

– Knowledge beneficial to petitioning organization’s competitiveness in the marketplace


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• Alien Labor Certification Program for Green Cards

• Operated by Dept of Labor (DOL) (20 C.F.R.§656.17)

• Employers must obtain Prevailing Wage Determination and test the labor market

• Must follow precise DOL procedures and timelines

PERM Basics

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• DOL processing has been very slow in last 2 years

• But audit rate is now decreasing

• This means faster audit process times, but slightly slower regular processing times

• Processing times available at https://icert.doleta.gov/

• (or just Google "PERM processing times")

PERM Processing Trends

https://icert.doleta.gov/

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• DOL Modernizing the PERM program

• New PERM regulations expected in future

• Fee-based PERM program with premium processing?

• Harmless error exception?

• Moving away from print ads

• Guidance on telecommuting and virtual/multiple worksites

DOL PERM News & Updates

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• Employer must promise to pay PW at time of green card

• New leadership at DOL èTougher PW's

• Prevailing wage determinations procedure (20 C.F.R.§656.40):o DOL first assigns an occupation

o Then assigns level within occupation

o Then maps to a PW level

PERM Prevailing Wages (PW)

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Area Code:16974Area Title: Chicago-Naperville-Joliet, IL Metropolitan Division

OES/SOC Code:15-1132OES/SOC Title: Software Developers, ApplicationsGeoLevel:1Level 1 Wage:$24.45 hour - $50,856 yearLevel 2 Wage:$33.14 hour - $68,931 yearLevel 3 Wage:$41.84 hour - $87,027 yearLevel 4 Wage:$50.53 hour - $105,102 yearMean Wage (H-2B):$41.84 hour - $87,027 year


http://www.flcdatacenter.com/OesAreaDetails.aspx?area=16974&year=16

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• Can use alternative wage sources

• If using public wage datao Use job description to show DOL the right occupation category

o Avoid factors that increase levels (if possible)

• DOL will not use catch-all occupational categories for PERM prevailing wageso Matter of Meltwater News USI, Inc., 2014-PWD-00005 (July 16, 2014)

o Matter of Quest Diagnostics, 2014-PWD-00002 (Feb. 12, 2015)

PERM Prevailing Wage Strategies

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• Highly specific process created by DOL

• Advertise in 7 venues: state's website, Sunday newspapers, company bulletin board, company intranet, plus 3 other places. Usually: company internet, AJE, and Referral Program or local newspaper

• Must follow the DOL advertising procedures precisely - no exceptions!

Testing the Labor Market

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Testing the Labor Market

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• Must advertise in the right place

• Language must be exact in ads

• Must advertise for the precise amount of time

• Must respond to applicants in a "reasonable" time

• If potentially qualified, must do phone screens

• If applicants are nonresponsive, must prove you tried to contact them

• Must watch for layoff in same job during the test of the labor market.

Testing the Labor Market (cont'd)

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• PERM must list every relevant qualification of foreign worker

• All job requirements should be quantified

• No vague terms in job requirements

• No non-specific salary terms in ads

• Ad language must include all material terms

Top 5 Recent Adjudication Issues

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Fiscal Year 2016 H-1Bs - 10/1/2015-9/30/2016

• It was a bad year: 233,000 H-1B petitions filed for 85,000 slots (~36%)

• 20,000 slots for US Master's degrees did slightly better

• F-1 Optional Practical Training Cap-Gap allows employees to work after EAD expires BUT ONLY until October 1, 2015 - if H-1B petition still not approved employee may stay in US but cannot work

H-1B Lottery – And Alternatives

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H-1B Transfers from Other Employers

• Cap-gap work authorization is not valid for second employer - but EAD is valid

• If H-1B selected in lottery and approved, employee may switch to new employer cap-exempt

• But if first employer withdraws H-1B before 10/1/2015, H-1B is revoked and employee is no longer cap-exempt

• If employee works for even one day after 10/1/2015, even if first employer withdraws H-1B, employee is still cap-exempt


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Alternatives

• 17-month OPT STEM extension

• F-1 OPT for new program (eg, 1st Master's degree)

• But cannot work during first 9 months unless on-campus employment

• May work part-time during school on OPT, F/T during breaks

• Most students want to save OPT for after graduation


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• Curricular Practical Training - Be Careful! CPT is not meant as an employment vehicle. Rare to find bona fide CPT program that offers CPT on day 1 - must also pay for enrollment

• H-1B for cap-exempt organization (university, non-profit research institute)

• Employee work in another country (not US)

• H-4 work authorization (EAD) if H-1B spouse is waiting for green card

• Marry US citizen boyfriend/girlfriend

• B-1 in Lieu of H-1B


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Questions?

© 2015 Quarles & Brady LLP - This document provides information of a general nature. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about your particular circumstances before acting on any of this information because it may not be applicable to you or your situation.

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“Your Corporate Immigration Program - Successful Strategies to Ensure Full Compliance”