WSM Immigration Basics

U.S. Immigration Basics
An Introduction for HR Professionals

Weaver Schlenger Mazel LLP
Flora Hoffman, Lisa Baker Jones,
Laura J. Mazel, Stephanie Smith
March 2, 2012

HR Certification

This program, ORG-PROGRAM-110601, has been approved for
3.00 (General ) recertification credit hours toward PHR, SPHR
and GPHR recertification through the HR Certification Institute.
Please be sure to note the program ID number on your
recertification application form. For more information about
certification or recertification, please visit the HR Certification
Institute website at www.hrci.org

2

© 2012 Weaver Schlenger Mazel LLP

Immigration 101
Different Agencies
US Citizenship and Immigration Services (USCIS)

Department of State (DOS)
Department of Labor (DOL)
Visa Stamp vs. Visa Status
Common Status Documents
Form I-94
Form I-797 Approval Notice
Common Forms
3


Temporary and Permanent Work Visas

Temporary Visas

Permanent Resident Status

• Intention to stay temporarily
in the United States

• Intention to remain in the
United States on a
permanent basis

• Permission to engage in
certain activities at certain
specified places as authorized
by the specific visa category
utilized
• A to V
• Dual intent allowed for some
categories

4

• Permission to live and work
indefinitely in the United
States
• Not employer specific
• First step toward citizenship


Non-Immigrant Visas

Student (F) Visa

• Non-immigrant temporary
intent required
• Generally, students may work
for 12 months after
graduation in their field
(STEM fields may get 17
more months)
• Proceeding to permanent
residency status inconsistent
with F status

5


Non-Immigrant Visas
Specialty Occupation
(H-1B) Visa
•

•

The individual must possess the
required degree or equivalent

•

No shortage necessary but LCA
required

•

Renewed in 3-year increments
for a total of 6 years

•

Limited extensions beyond 6
years

•
6

The position offered must require
at least a BA/BS degree in a
particular field

Portability

Non-Immigrant Visas

Australian E-3
Professional Visa
• Like H-1B but for Australians
only
• Only 10,000 per year
• Processing directly at the
U.S. Consulate overseas
• Spouse eligible for EAD
• May extend indefinitely

7


Non-Immigrant Visas

Trade NAFTA (TN) Visa

• Generally used for Canadian
nationals
• Only “professionals” on the
list

• Up to 3 year initial grant;
renewed in one-year
increments
• Proceeding to permanent
residency status inconsistent
with TN status

8


Non-Immigrant Visas
Intracompany Transferee
(L) Visa
•
•

Employee has worked for 1 year
abroad

•

5 to 7 year limit on stay for
executives/managers or
specialized knowledge

•

Dual intent status: can be in L
status and proceed to permanent
residency

•

9

Related company abroad seeks to
transfer employee

Spouse can obtain work
authorization

Non-Immigrant Visas
Extraordinary Ability in the
Sciences, Education,
Athletics, Business or Arts
(O) Visa
•
•

Consultation from peer or
industry group

•

International award of high
acclaim or 3 out of list

•

Up to 3 years initially; extensions
in one year increments

•

10

Small percentage at very top of
field

No work authorization for
spouses

Non-Immigrant Visas

Trader/Investor (E) Visa
• Individual must be a national
of a treaty country and must:

• Carry on substantial trade
in the US or
• Invest in a US entity
• Unlimited duration (renewed
in 1 year increments)

11


Non-Immigrant Visas

Exchange (J) Visa
• For students or trainees

• Short-term placement
• Company must have bona
fide training program
• Participant must be fluent in
English
• Beware of 2 year residency
requirement

12


Non-Immigrant Visas

Business Visitor (B) Visa
• To engage in business
activities
• No payment from US
• Demonstrate ties to home
country
• Limited time period

13


QUESTIONS AND ANSWERS


Permanent Residence
Overview
PERM, I-140, I-485

Permanent Residency Process

A.k.a. “green card”

Three Components of Process
• PERM Labor Certification (some
exceptions)
• Immigrant Visa Petition (I-140)
• Application for Permanent
Residence (I-485)

16


Step 1: Labor Certification Process

Must be able to establish shortage of
minimally qualified U.S. workers
PERM:
•
•
•
•
•
•
•

17

Position specific
Recruitment done before filing
Filed electronically with Department of Labor (DOL)
Estimate 5 months for processing once filed
DOL auditing 33% of applications to date for FY2012
Special Handling for college and university professors
Establishes Priority Date and Preference Category


Step 2: Form I-140 (Immigrant Visa Petition)

• Qualifies employee for employer-sponsored immigrant visa
• Filed with USCIS
• Estimate 4 months for processing once filed
• Concurrent filing option for current priority dates
• Employer must show ability to pay

18


Priority Dates and Visa Retrogression

• Preference Categories (EB-1, EB-2, EB-3)
• Visa Quota System and per country limits

• Country of Birth and Cross-Chargeability
• Department of State
• Current visa bulletin available at www.wsmimmigration.com

19


Priority Dates and Visa Retrogression

March 2012 dates
Category

Date

EB-2

India

1-May-2010

EB-3

India

22-Aug-2002

EB-2

China

1-May-2010

EB-3

China

1-Jan-2005

EB-2

all others

current

EB-3

20

Country of Birth

all others

15-Mar-2006


Step 3: Adjustment of Status to Permanent Resident

• When PD is current, employee can file Form I-485
• Filed with USCIS, or can process overseas

• Family included at this stage
• Need birth records, marriage records, medical exam, etc.
• Current processing time is 4 months from filing

• Travel restrictions
• Portability

21


QUESTIONS & ANSWERS

22


Best Immigrant Visa Options
Available to Researchers and
Others
Non PERM

EB-1 Category

EB-2 Category

•

Extraordinary Ability Petition

•

National Interest Waiver

•

Outstanding Researcher Petition

•

Schedule A Group II

•

PERM

Advantage:
Best protection against visa retrogression!

24

Subject to Visa Retrogression –
Important for Chinese and
Indian nationals

© 2011 Weaver, Schlenger & Mazel

Employment Based First Preference Visas (EB-1)

Extraordinary Ability

Outstanding Researcher
•

Challenging but USCIS has
been more reasonable lately

•

Ideal for nonprofit research
institutions and some private
companies with R&D
departments

•

25

Most difficult
Disadvantage:
Very difficult standard

•

Can be difficult for postdocs
early in their careers


Employment Based Second Preference Visas (EB-2)

National Interest Waiver
• Foreign national can selfpetition

• Employer must act as
petitioner

• Exceptional ability standard
(less onerous than EB-1)

26

Schedule A Group II

• Exceptional ability
standard (less onerous
than EB-1)


Requirements:
•On-site posting required
•Prevailing Wage Determination
required
•In-house Media Statement/Posting
Advantage:
Can be filed by Premium Processing

Requirements and Processing Times:
•Must show work in the National
Interest
•Individual plays critical role in the
project
•Cannot be premium processed

Can work for Nonprofit research institutions
Companies with R&D
Advantage:
Less HR/ADMIN Work, no internal posting, PWD, etc.
Employee can self petition

Maximizing Immigration Compliance

•

Preparation versus Denial

•

Know Which Government Agencies Can Come
Knocking:
I-9s: ICE and DOL
LCAs for H-1B: DOL, USCIS, ICE
PERM: DOL, USCIS, ICE
Export Control: Commerce, DOJ, DOD, Treasury,
CIA, FBI, NSA, Energy or Homeland Security


Status of Worksite Enforcement

Unprecedented highs in enforcement and legislative
activity related to Form I-9 and E-Verify compliance
From 2009 to 2011, ICE :
• audited more than 6,468 employers;

• debarred about 521 companies and individuals; and
• imposed more than $76.3 million in penalties.

What the Government Wants to See

• I-9s and Payroll Records
• Labor Condition Applications for H-1B Workers
• PERM documents

• Export control as applied to foreign national employees
and visitors
• E-Verify and IMAGE programs


What about E-Verify and IMAGE?

• E-Verify and IMAGE in a nutshell
• When E-Verify is and is not mandatory
• Advantages: Additional work authorization for STEM
graduates
• Can enroll in E-Verify without IMAGE
• How to make the decision? Who at the company needs
to be involved?
• What steps should HR take before enrolling?


How Can You Prepare for a Government Audit?

• Establish chain of command protocol in your company
(starting with receptionist!)
• I-9 Best Practices

• H-1B LCA public access files
• Remember When to Withdraw H-1Bs with Early
Termination

• PERM documentation
• Sensitive technology reviews


What About Electronic I-9 Systems?

• Civil penalties — Chipotle; Abercrombie & Fitch
• Memorandum of Understanding (MOU)


Current Immigration Climate
and Legislative Updates


• Silicon Valley is hiring, but unemployment remains high in
rest of country
• PERM audit rate is 33%
• RFEs for H-1B, L-1 and O-1 petitions
• Long waits at American Consulates

39



• Culture change within USCIS is slow but coming
• President’s Council on Jobs and Competitiveness
• Employers in Residence Program
• Small Business Administration task force
• Balance creation of US jobs with protectionism during an
election year

40


Pending Legislation

• Zoe Lofgren’s Immigration Driving Entrepreneurship in
America (IDEA) Act
• Michael Bennet’s STEM Visa Act
• Fairness for High-Skilled Immigrants Act

41


Tips on Drafting Immigration
Policies

Policy Tips

• Ensure all employees treated consistently
• Involve immigration counsel

• Develop calendar for self audits for I-9s, H-1B Public
Access Files and PERM compliance folders
• Have system to be mindful of export control rules

• Review contractor relationships
• Consider E-Verify when appropriate

THANK YOU FOR JOINING US!


For more information…
Please contact:

Flora Hoffman fhoffman@wsmimmigration.com
Lisa Baker Jones lbaker@wsmimmigration.com
Laura J. Mazel ljmazel@wsmimmigration.com
Stephanie Smith scsmith@wsmimmigration.com

WSM Immigration Basics

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