Why Hire Non-US Workers - HRA-NCA

Transcription

HRA-NCA 4th Annual Compensation & Benefits Summit:
Why is Hiring Non-U.S. Workers a Benefit to My Company
How do I sponsor an employee for U.S.
Permanent Residence or an Employment Visa?
By:
Peter F. Asaad, Esq.
Immigration Solutions Group, PLLC
www.immigrationsolutions.com
1919 Pennsylvania Avenue NW, Suite M-200
Washington, DC 20006
[email protected]
Agenda
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Why would I hire a non-U.S. worker?
Must I show there are no U.S. workers available?
Which foreign workers may I “sponsor”?
What are the responsibilities of the employer?
Who needs to pay the fees and other costs?
How and when do I “sponsor” an employee?
What is the Benefits person’s challenge?
© Copyright 2014 Immigration Solutions Group, PLLC
Disclaimer
This presentation provides general information
only and cannot substitute for individualized
legal advice about your particular case.
Why would I hire
a non-U.S. worker?
Today’s global talent is
down the road and next door
• Every company's hiring objective is to find the
best-qualified candidate. At times, the best
person for the job will be someone who is not
a U.S. native, but may be overseas or simply in
the U.S. with an existing work permit or green
card or has no papers at all. What can you, as
an employer, legally do to utilize such sources
of labor -- and how much time, effort, and
cost will it involve and how will my company
benefit?
© Copyright 2014 Immigration Solutions
Group, PLLC
May Not Refuse Employment
Authorized Individual
• An employer may not refuse to hire an individual
solely because their future employment
authorization is temporary or provides a document
with an expiration date.
• A "U.S. citizens-only" hiring policy is discriminatory
except under limited circumstances. Must be
required to do so by federal, state, or local law or
regulation, or by government contract.
Permitted Questions During Interview
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The Department of Justice the Office of Special Counsel for Immigration-Related
Unfair Employment Practices ("OSC") recommends limiting questions during
interview and recruitment to the following two questions to steer clear of unlawful
employment discrimination:
1.
Are you legally authorized to work in the United States?
2.
Will you now or in the future require sponsorship for employment
authorization?
NOTE: The law requires that you complete Form I-9 only when the person actually
begins working for pay . However, you may complete the form earlier, as long as
the person has been offered and has accepted the job . You may not use the Form
I-9 process to screen job applicants.
• The number of international students enrolled
at U.S. colleges has grown every year, reaching
a record high of 819,644 in the 2012-2013
academic year.
Group, PLLC
Local 2013 Statistics
Foreign Students in Virginia
Virginia Polytechnic Institute and State University
University of Virginia-Main Campus
George Mason University
Northern Virginia Community College
Virginia Commonwealth University
Rank #14
Total 16,521
2,674
2,399
2,274
1,901
1,729
Foreign Students in Maryland
University of Maryland
Johns Hopkins University
Montgomery College
University of Maryland
Towson University
Rank #16
Total 15,522
4,492
3,889
1,637
1,068
838
Foreign Students in Washington, DC
George Washington University
Georgetown University
American University
Catholic University of America
Gallaudet University
Rank #25
Total 9,232
3,635
2,240
1,311
506
179
Data by Institute of International Education, Open Doors 2013
www.iie.org/opendoors
Types of Employment Authorization
for International Students
• Provided under the F-1 Student Visa
o Curriculum Practical Training (CPT)
Employment that is Part of Student’s Study Program
o Optional Practical Training (OPT)
Employment that Simply Relates to Student’s Degree
of Study
• Pre-Completion OPT
• Post-Completion OPT
Optional Practical Training
(OPT)
In the 2011/2012 academic year
there were 85,157 international students on OPT.
Students on OPT
11.5% increase
94,919
85,157
2006/07
2007/08
By the 2012/2013
academic year,
that number had
grown to 94,919,
an 11.5% increase and
a 45% increase from
the year before that.
Must I show that there are
no U.S. workers available?
MYTH:
“The employer must prove that
there are no available U.S. workers”
FACT: Employers DO NOT prove that there are
no available U.S. workers, unless:
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Sponsoring a green card application
Filing an H-2B (temporary “low-skilled” workers)
Considered H-1B dependent*
Sanctioned as a H-1B willful violator
*H-1B Dependent: 25 or less FTE employees with 8 H-1Bs; 26 - 50 FTE employees with 13 H-1Bs, or 51 FTE
employees with 15 percent H-1Bs.
Which foreign workers
may I “sponsor”?
F-1 Student Visa
• Myth: “Hiring International Students Requires
Employer Sponsorship”
• Employers DO NOT need to complete any more
paperwork to be able to hire an international student
graduate than to hire a domestic student.
• Federal law permits international students to obtain
CPT or OPT work authorization with their F-1 visa.
Typical Path
F-1 – attend school
F-1 OPT – start work
H-1B or Alternative – continue working
4th Year H-1B status – Start thinking about Green Card
Maintain Non-Immigrant status until becoming a LPR
The H-1B Visa
• Employer must “sponsor”/petition for applicant.
• Employment limited to employer who petitions,
approved locations, and approved wage minimum.
• No need to advertise for U.S. workers
• Must be in a “specialty occupation” i.e. requires at least a
bachelor’s degree in a specific field
• Applicant must have that degree or equivalent.
• Degree must be in field of study relevant to occupation.
More H-1B Basics
• Maximum of 6 years (maximum of 3 years at a time).
May recapture time outside US
• May hold more than one H-1B at a time. If change to
new employer, new petition needed but may start when
filed.
• H-1B may be part time.
• Cap Exceptions and Exemptions: Extensions, change of
employer, exempt employers i.e. universities, gov’t
research org, nonprofit research org, university affiliates).
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L-1A/L-1B
Intra-Company Transfer
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Must have been employed by a parent/subsidiary/affiliate abroad for at least one
year from previous three years
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L-1A: Executive or Manager (H and L combined max of 7 years with 2 year
increments)
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L-1B: Specialized Knowledge (H and L combined max of 5 years with 2 year
increments)
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Spouse may work
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No prevailing wage requirement
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Dual intent
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Blanket L-1 Option: doing business for one yr, 3 or more offices, 25mil or 1000
workers or 10 approvals
TN (NAFTA) Status
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A Mexican or Canadian national in a listed profession may enter the U.S. for
up to three years to work for a U.S. employer in that profession
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NAFTA provides a list of professions
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Professions include:
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Architects
Accountants
Systems Analysts
Engineers
Lawyers
Scientists in most disciplines
Graphic Artists
Management Consultants
Hotel Managers
Professors
Others
TN (NAFTA) Status
Pros
Cons
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No cap
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Must be profession on NAFTA list
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No prevailing wage requirement
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Canadian nationals – border
adjudication (no visa for travel)
Not dual intent - must have
temporary, nonimmigrant intent with
residence abroad to return to.
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Mexican nationals – consular
adjudication (visa required) but If in
U.S., may file petition
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Need relevant degree; mostly require
a minimum of Bachelor’s degree
22
E-3 for Australian Citizens
• 10,500 available per year
• Very similar to H-1B, except:
– granted in two year increments,
– spouses may work
H-3 Trainee
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Different from B-1 in that pay is allowed from U.S> company
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Training must be for job abroad; proposed training must not be available in home
country
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Not for position that is in the normal operation of the employer in which regularly
employed
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Productive employment limited to being incidental and necessary to training
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May not simply extend OPT
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Must have foreign residence to return to; no change of status to H or L; no dual
intent
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2 year maximum
J-1 Trainee or
Professor/Researcher
• J-1 Trainee
– 18 months max
– Looser than H-3 visa, but requires foreign degree
and one year work experience in field outside U.S.
• J-1 professor/researcher
– K-12 teacher, camp counselor, summer
work/travel, specialist, short term scholar, etc.
H-2B Visa
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Employer’s need must be either:
– one-time occurrence: has not employed workers to perform the service or
labor in the past; will not need workers to perform in the future or situation is
otherwise permanent but a temporary event has created temporary need
– seasonal need: tied to a season of the year by an event or pattern and of a
recurring nature, not unpredictable or subject to change
– peakload need: a temporary supplement to its permanent staff and that those
supplemental employees will not become part of the employer's regular
operation
– intermittent need: has not employed permanent or full-time workers to
perform the services or labor and occasionally or intermittently needs
temporary workers to perform services or labor for short periods)
“Cap,” on the total number set at 33,000 each half of fiscal year
May only be approved for nationals of certain designated countries
Increments of up to 1 year each with maximum of 3 years
What are the responsibilities
of the employer?
H-1B Compliance
• There are general compliance obligations that
accompany the filing of an LCA in conjunction
with an H-1B petition.
• These involve wages, working conditions,
strikes and lockouts, notice, and benching.
Group, PLLC
H-1B Wages
• Wages - The H-1B employer must demonstrate that it
will pay the H-1B worker the required wage rate:
either the “prevailing wage” or the “actual wage.”
The prevailing wage can be generally defined as the
normal wage offered for the foreign national’s
occupational classification within the area of
intended employment. The actual wage is the wage
rate paid by the employer to all other individuals
with similar experience and qualifications for the
specific employment in question.
Group, PLLC
H-1B
Working Conditions
• The H-1B employer must demonstrate that the
employment of the H-1B worker will not adversely
affect the working conditions of workers similarly
employed in the area of intended employment.
These working conditions include, for example,
matters such as hours, shifts, vacation periods, and
certain benefits.
Group, PLLC
H-1B
Strikes and Lockouts
• Strikes and Lockouts - The H-1B employer must state
that at the time of filing the LCA there is no ongoing
strike or lockout in the course of a labor dispute in
the occupational classification at the place of
employment. The purpose of this requirement is to
ensure that employers are not seeking foreign
workers to undermine the rights of striking U.S.
workers.
Group, PLLC
H-1B Notice
• Notice - Prior to filing the LCA with the Department
of Labor, the H-1B employer must provide notice to
its U.S. workers. The purpose of this requirement is
to ensure that U.S. workers are aware of the
intention of the employer to hire an H-1B worker and
to provide the general parameters of this
employment.
Group, PLLC
H-1B
“No Benching” Provision
• Employer must pay required wage specified in LCA even
if the H-1B worker is in nonproductive status
• Employer does not need to pay wages to H-1B worker
that is in nonproductive status due to a “voluntary
request and convenience” or which render him or her
unable to work (requested leave of absence based on
specified non-employer related need).
• Civil monetary penalties - $1,000/$5,000
Public Access File
Public Access File Retention Period
• One year beyond last date H-1B worker was employed
• If no individual employed under LCA, one year from date
the LCA expired or withdrawn
• Retained either at the employer’s place of business or at
place of employment
H-2B Visa
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Show not enough U.S. workers who are available
No adverse affect to wages and working conditions
Need must be either one-time occurrence , seasonal, peakload, or intermittent
“Cap,” on the total number set at 33,000 each half of fiscal year
May only be approved for nationals of certain designated countries
Increments of up to 1 year each with maximum of 3 years
Notify USCIS within 2 workdays if no show or termination
Employer or agent prohibited from collecting job placement fee
Wage rate based on wage statistics for the area and job to be performed
Employer must provide workers’ compensation insurance
Employer furnishes all tools and supplies necessary to perform the work at no cost
Who needs to pay
the fees and other costs?
Employer’s Wage Obligation
under the H-1B Visa
Must agree to pay higher of actual or
prevailing wage (aka “required wage”).
• Actual wage: wage paid to other similarly
employed and similarly qualified workers at
same worksite.
• Prevailing wage: weighted mean or median
wages for similar positions in geographic
area of employment.
What is the Employer Required to Pay?
• Prohibition of imposing “business expenses” on H-1B
worker. The DOL considers “business expenses” to
include attorney fees and government filing fees. The
regulations prohibit the employer from shifting such
expenses to the H-1B worker, either directly or
indirectly or through a termination repayment
provision.
What is the Employer Required to Pay?
(cont.)
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Base fee - $325
Fraud Prevention Fee - $500
“Training Fee” - $1500 ($750 for 25 employees or less)
Optional Premium Processing Fee (15 days) - $1225
Regulations require the employer to cover the
reasonable travel expense of a return flight to their
home country if terminated.
What can the employee
be asked to Pay under the H-1B?
• Bona fide costs in connection with visa functions which
are required by law to be performed by the
nonimmigrant (e.g., translation fees and other costs
relating to visa application and processing for prospective
nonimmigrant residing outside the U.S.) do not
constitute and will not be considered to be an employer’s
business expense.
How and when do I
“sponsor” an employee?
H-1B – Supply and Demand
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Limited to 65,000 per yr w/ additional 20,000 for adv degree holders
Quota year: October 1 to September 30
April 1 is the earliest and best date to apply for the visa
Past years’ H-1B quota filled:
o
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FY2014
FY2013
FY2012
FY2011
FY2010
FY2009
FY2008
FY2007
FY2006
1st Day = Lottery
07/11/12
11/22/11
01/26/11
12/21/09
1st Day = Lottery
1st Day = Lottery
05/26/06
08/10/05
• If needed, USCIS conducts a “lottery” to select cases to be
considered for H-1B approval.
What’s Filed and When under
the H-1B Visa?
• First - Labor Condition Application (LCA) filed with
Department of Labor. 5 to 10 days for approval.
• Second - I-129 Petition including LCA, qualifications, job
description filed with USCIS.
• If employee maintaining lawful status in U.S., status is
changed to H-1B, along with family members.
• If outside U.S., or traveling following change of status,
must obtain H-1B visa at U.S. consulate.
Transition from H-1B to Green Card
• Dual intent permitted for green card processing (unlike
F-1 visa)
• Green card pending at least 1 year – can extend H-1B in
1 year increments
• Approved I-140, but no quota number to adjust - can
extend H-1B in 3 year increments
Employment-Based Permanent
Immigration
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Generally, DOL must make a determination and certify that there are not sufficient
United States workers who are able, willing, qualified, and available for the
position being offered.
•
This processes is called Labor Certification – PERM (Program Electronic Review
Management process ).
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I-485 or consular processing can only commence when employee's “Priority Date”
is current. Employee receives work permit and travel permit (Advance Parole)
within 90 days.
•
Once I-140 is approved, and once I-485 has been pending for 6 months, employee
is “portable” and may change employers.
Employment-Based
Green Card Process
(for EB-2, EB-3)
PERM
(DOL)
I-140
Immigrant
Visa Petition
(USCIS)
Adjustment
of Status
AOS
(USCIS)
Consular
Processing
Overseas
(DOS)
Preference Categories
•
Limited to 140,000 total “immigrant visas” per year, including dependents.
Only 7% of visas can be allotted to each country. Immigrant visa numbers
are assigned to a “preference category” e.g. EB-1, EB-2, EB-3.
•
Demand for immigrant visas always exceeds supply. Generally, the higher
the preference category, the shorter the wait for a visa.
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Typically no wait for first preference, and generally, it takes a person with a
third preference approval longer to immigrate than a person with a second
preference approval.
Priority Date
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When demand exceeds supply, a visa backlog (“line”) forms based on ones
“priority date.” The priority date is used to determine an individual’s place in line
in the visa queue. When the priority date becomes current according to the
monthly “cut-off date,” the individual will be eligible to apply for an immigrant visa
(i.e., file the I-485 or proceed with consular processing).
•
The priority date for an employee who is the beneficiary of an employment-based
immigrant petition is either:
– The date the I-140 petition was properly filed with USCIS, or
– The date the labor certification application was accepted for processing by the
Department of Labor (when a labor certification is required).
The Visa Bulletin
•
DOS issues the Visa Bulletin monthly, which provides information on available
“immigrant visas”
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To be eligible for an available immigrant visa, an applicant’s “priority date” in the
particular visa category must be current with respect to the country of birth and
preference category as reflected in the current Visa Bulletin
•
The State Department “Visa Bulletin”
EB-1 First Preference
These categories avoid Labor Certification all together:
• Individuals of extraordinary ability;
• Outstanding professors and researchers;
• Individuals who are multinational managers or
executives.
EB-2 Second Preference
Advanced Degree
• Individuals with advanced degrees (any U.S. academic or
professional degree (or a foreign equivalent) above a
bachelor’s degree level).
• Bachelor’s degree + 5 years of progressive experience
also typically qualifies (must be 4 year degree)
EB-3 Third Preference
Professionals & Skilled
Workers
• Position requires individuals with bachelor’s
degrees in their fields, experience, or 2 years
of training.
What is the Benefits person’s
challenge?
The Management of
Cultural Differences
• Attention to the challenges and opportunities
associated with the growing trend toward
culturally diverse workforces can be a key
factor in overall business success.
Group, PLLC
Going Beyond a Simple
Recognition of Cultural Diversity
to Active Diversity Management
• Diversity management must not be viewed as
an us/them kind of problem to be solved but
as a resource to be managed.
• Managing diversity is a comprehensive
managerial process for developing an
environment that works for all employees.
Group, PLLC
The Benefits Person’s Challenge
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Company policies that explicitly forbid prejudice and discriminatory behavior should be included in
employee manuals, mission statements, and other written communications
Training programs: awareness and skill-building"
Do not assume differences are always 'cultural'
Soliciting the opinions and involvement of minority groups on important work committees
Revamp reward systems so that an organization's performance appraisal and reward systems reinforce the
importance of effective diversity management
Make room for social events such as picnics, softball games, volleyball leagues, bowling leagues, holiday
parties, etc.
Don't assume similar values and opinions; research employees' needs through periodic attitude surveys
Group, PLLC
Group, PLLC
Group, PLLC
Managing Multicultural Diversity
Generally, all policies and practices should be aligned with seven basic lessons:
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Lesson 1: True integration occurs only if it is successful for the employer, worker, and
community
Lesson 2: Strategies directed explicitly at immigrants must be components of a broader range
of initiatives that support the entire workforce
Lesson 3: Workers with valid foreign credentials and proven competencies must be afforded
reasonable opportunities to pursue careers in their fields
Lesson 4: Adult education is on the front line for meeting the needs of immigrant workers
Lesson 5: Concerns about the effects on wages and working conditions are first addressed
through fair application of existing labor laws
Lesson 6: Effective immigrant integration policies and programs are fundamentally local and
state based and must engage all parts of the workforce system
Lesson 7: Integration is a long-term process requiring continuous measurement and
improvement. on is on the front line for meeting the needs of immigrant workers
Group, PLLC
A Global America:
Securing 21st Century America
“Dear America, please remember how you got
to be the wealthiest country in history.
…the formula was very simple: build this really
flexible, really open economy, tolerate creative
destruction so dead capital is quickly
redeployed to better ideas and companies,
Pour into it the most diverse, smart and
energetic immigrants from every corner of the
world and then stir and repeat, stir and repeat,
stir and repeat.”
Tom Friedman – “World Is Flat” Guy
New York Times Editorial Writer and Author
For Further Information
Expanding the Talent Pool by Hiring and Retaining Foreign Nationals: A Core
Competency for Hiring the Best and Brightest
By:
Peter F. Asaad, Esq.
Managing Partner
Immigration Solutions Group, PLLC
www.immigrationsolutions.com
1919 Pennsylvania Avenue NW, Suite M-200
Washington, DC 20006
[email protected]

Why Hire Non-US Workers - HRA-NCA

Transcription

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