In his speech Thursday night President Obama outlined a number of immigration initiatives that will be implemented in the coming weeks and months.
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Rebecca S. Whitehouse practices in the area of immigration law. Ms. Whitehouse provides assistance with hiring and transferring foreign national employees, I-9 compliance, as well as obtaining employment authorization and permanent residency for employees. She also represents individuals and families seeking to immigrate a relative or fiancé, or apply for citizenship.
Rebecca was an associate with the international law firm Baker Botts, L.L.P. in Houston, TX from 1992 until 2000, and formed her own independent business and family immigration practice in 2000. She currently practices immigration law in Plano, TX.
TOPICS IN BUSINESS IMMIGRATION
Foreign nationals are an increasingly important presence in today’s workplace. However, work authorization is not automatic in many cases. Moreover, once a foreign national becomes authorized for employment and begins working, changes in job duties, geographic assignment, and corporate restructuring can affect his or her continued authorization and ability to gain permanent residency. At the same time, processing with U.S. Citizenship and Immigration Service (USCIS) and the U.S. Department of Labor is subject to long backlogs. The potential for delays coupled with the serious consequences of a status violation, make proper planning and foresight imperative. Ms. Whitehouse assists both employers and individuals with matters such as:
Many foreign nationals can qualify to work in the United States; however, the mere fact that a person is legally present in the U.S. or has been working for a different organization does not mean that he or she is automatically authorized to work for a new employer. The person must hold a status that permits employment and, in many cases, this requires sponsorship from the new employer. Consider these factors:
- Does the person currently hold a visa status that allows employment? If so, does he or she need an Employment Authorization Document? Examples include adjustment of status applicants and F-1 students with practical training entitlements;
- If the person is not currently authorized to work for the new employer, can he or she qualify for a status that allows employment? Examples include professionals who will work in a specialty occupation;
- Business trainees, researchers, scholars, and exchange visitors;
- Executives, managers, and specialized knowledge employees who have worked for a related organization outside the U.S.;
- Canadian and Mexican professionals in certain occupations;
- Business owners, investors, and entrepreneurs;
- Persons of extraordinary ability in the sciences, education, business, or athletics
These non-immigrant classifications can be used for work assignments ranging from a few months to several years, in just about any field, from high tech to professional services to research institutions.
Once a foreign national begins work, it is critical to ensure that authorization does not lapse and that the person maintains status without violations. In many cases, new or amended documents must be filed with USCIS and the U.S. Department of Labor to reflect:
- Significant changes in job duties
- Changes in salary;
- Changes in corporate structure due to mergers, acquisitions, or sales of business units;
- Transfers to a different city or corporate affiliate
In some cases, the changes are so substantial that the foreign national can no longer qualify for the status originally approved. In other cases, taking on a second job, changing employers, or ceasing work for a current employer can cause a status violation if the proper filings have not been done.
While it is tough to anticipate such changes in today’s fast moving workplace, the individual who has not done so, can find himself or herself with significant impediments to obtaining permanent residency, changing status, or even remaining in the U.S. down the road.
Just like the world we live in, today’s workplace is more globalized than ever. While companies continue to expand into new foreign markets around the world, the shortage of skilled workers in the U.S. has caused employers to recruit from a much broader pool of candidates. As a result, U.S. businesses are seeking out and hiring more foreign national employees.
- Will there be delays in obtaining work authorization for a new candidate?
- Will he or she be able to maintain work authorization for a substantial period, and how do you prevent lapses in authorization?
- Will the candidate be subject to changes in job duties, location, or employing unit that cause a violation of status or require frequent amendments to USCIS and Department of Labor filings?
- Does the employer have a policy regarding sponsoring (or not sponsoring) foreign national candidates for employment-based visa statuses? Is the policy applied in a non-discriminatory manner?
- How does the employer identify, at the recruitment stage, those individuals who will need sponsorship?
Employers face additional issues when recruiting for positions involving technology or software that is regulated by the U.S. export control laws. Under the "deemed export" rule, when a foreign national is given access to controlled information, the U.S. government presumes that access was given with the knowledge or intent that it will be transmitted to the foreign national’s home country. In other words, merely allowing foreign nationals to have access to such information at the U.S. workplace is deemed to be an export. In these cases, the employer may need to obtain an export license from the U.S. Commerce Department’s Bureau of Industry and Security or another government agency before allowing the candidate to work in the proposed job.
- Has the company identified which positions, if filled by foreign nationals, would require an export license?
- Has the employer developed recruiting practices to identify, in a non-discriminatory manner, those candidates for whom an export license would be required?
When a foreign-based company opens a new office in the U.S. or expands existing operations, it is often necessary to transfer executives, managers, and certain employees with specialized knowledge to oversee the work and train staff. For some organizations, the nature of their industry requires a series of short term placements, with foreign nationals coming into the U.S. and American employees being assigned to other countries.
EMPLOYMENT BASED VISA PETITIONS AND PERMANENT RESIDENCY
With the ever increasing backlogs at the U.S. Department of Labor and at USCIS, the process of obtaining permanent residency is fraught with delays. It is more important than ever to begin the steps as early as possible. It is also important to have an overall, long-term strategy so that the individual can continue to work in the U.S. without violations of status or lapses in work authorization. Both the employer and employee must be aware of changes in job duties, corporate restructuring, and transfers that can nullify the residency steps already underway:
Many foreign nationals seeking permanent residency are required to
obtain labor certification from the U.S. Department of Labor (DOL)
before starting the petition process with USCIS. While the DOL PERM
program has enabled faster processing, the agency audits a
percentage of cases which can greatly delay adjudication. A
successful PERM case requires careful preparation and thorough
documentation, as well as an understanding of DOL’s criteria for
recruiting methods and rejecting potential candidates .
Employment-Based First Preference
Foreign nationals seeking Employment-Based First Preference (EB-1) classification can avoid the labor certification process with the Department of Labor and begin the permanent residency process with a petition to USCIS for a preference classification. EB-1 is available to:
- Aliens of extraordinary ability
- Outstanding professors and researchers
- International managers and executives
Employment-Based Second Preference
Foreign nationals with “exceptional ability” in the sciences, arts, or business, and those with advanced degrees can qualify for EB-2 classification; however if they cannot show they qualify for a National Interest Waiver both employer sponsorship and labor certification will be required.
EB-2 National Interest Waiver
Persons seeking classification under EB-2 National Interest Waiver as exceptional ability aliens or advanced-degree professionals also can bypass the labor certification process as well as sponsorship through an employer. A National Interest Waiver requires showing that the person’s work is in an area of substantial intrinsic merit, that the proposed benefit is national in scope, and that the benefit from the alien’s participation in his/her undertaking will considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process.
Employment-Based Third Preference
Professionals, skilled workers, and other workers fall into the Employment-Based Third Preference (EB-3). Because far more individuals fall into the EB-3 classification than into EB-1 or EB-2, the wait times to obtain permanent residency under the EB-3 category have increased significantly.
ADJUSTMENT OF STATUS / IMMIGRANT VISA FROM A CONSULATE ABROAD
Once the Immigrant Petition is approved by USCIS, and as soon as a visa number is available for the foreign national based on the preference classification, the person may apply for Adjustment of Status in the USA or alternatively apply for an Immigrant Visa from a U.S. consulate abroad. These processes involve undergoing a Biometrics appointment or obtaining police clearances, medical exam and vaccination requirements.
Individuals who choose to adjust status must determine whether they need to obtain advanced parole before traveling outside the U.S. For other adjustment applicants, the important issue is the ability to get an employment authorization document, particularly where they have not been able to maintain a non-immigrant visa status that allows them to work.
The I-9 employment verification process is a continual source of confusion and errors. The Immigration Reform and Control Act of 1986 (IRCA) prohibits employers from hiring or continuing to employ aliens who the employer knows (through either actual or constructive knowledge) to be unauthorized for work. The law imposes monetary and other sanctions for violations. However, since its enactment, there have been several statutory, regulatory, and administrative reforms, and more changes are proposed, causing added uncertainty to an already complex procedure. At the same time, employers must avoid being overzealous in their compliance efforts. Moreover, the EEOC’s guidance makes clear that the agency, when enforcing several federal anti-discrimination statutes, will look for evidence that employers facing discrimination complaints have used the I-9 process as a means of intimidating or retaliating against vocal employees. This makes it more important than ever for employers to implement and follow proper I-9 procedures, and to avoid verifying employment authorization as an afterthought.
- What documents are acceptable evidence of employment verification?
- In what situations is it permissible to require employees to produce specific documents as evidence of authorization?
- What is the best procedure to follow when faced with conflicting I-9 information from an employee?
- When can a receipt be used in lieu of an actual document?
- When must employers re-verify authorization? Is this being done at your workplace?
- What are the employer’s responsibilities with respect to offsite workers, leased employees and independent contractors?
- Under what circumstances is an employer deemed to have constructive knowledge of an employee’s unauthorized status?
- Which errors in the I-9 process qualify for the employer’s good-faith defense, and what must the employer do to take advantage of this defense?
The Immigration Reform and Control Act of 1986 (IRCA) prohibits employers from knowingly employing persons who are not authorized to work for them, and it requires employers to verify that their employees are in fact authorized. Employers who knowingly violate the law are subject to fines and other sanctions. Yet, other provisions of IRCA prevent employers from simply screening out foreign-appearing candidates or taking other discriminatory actions against such persons. IRCA prohibits discrimination on the basis of national origin or citizenship status with respect to hiring, firing, or recruiting or referring for a fee.
- Is it ever okay to require U.S. citizenship as a condition of employment?
- May an employer require that no language other than English be spoken at the workplace?
- Can sponsoring a foreign national lead to claims of discrimination by U.S. workers?
- Is refusing to sponsor a foreign national grounds for a discrimination claim by that individual?
- When can foreign-owned businesses in the U.S. favor workers from their home country?
- How does an employer reconcile the duty to avoid discriminating with the duty to avoid hiring undocumented workers?