managing employers’ top 10 business immigration challenges august 13, 2015. ogletreedeakins.com

Managing Employers’ Top 10 Business Immigration Challenges

August 13, 2015

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Employers face uncertainty in hiring and retaining talent Shortage of H-1B professional work visas Challenges in obtaining L-1B intracompany transferee

visas Backlogs

Compliance Executive action and legislative changes

10 Biggest Business Immigration Challenges for Employers



10. Executive Action: Deferred Action Programs*

Expansion of DACA – Deferred Action for Childhood Arrivals- Expansion of existing DACA program- Age cap of 31 is eliminated- Eligibility cut-off date for U.S. presence: 1/1/10- Work permits granted for period of 3 years

DAPA - Deferred action for parents of USC and LPR as of November 20, 2014

4.4 million + people (DACA expansion + DAPA)



10. Executive Action: Deferred Action Programs

Compliance: Impact for Employers Form I-9 employment verification Honesty policy State immigration laws (CA’s no retaliation law)

*Pending lawsuit brought by 26 states to prevent implementation of DAPA and DACA expansion Administration erroneously issued EADs

Being revoked by USCIS



9. ICE and E-Verify Compliance

I-9 audit trends, E-Verify audits, state-by-state I-9 form changes:

May 2013, new 2-page form New M-274 Handbook for Employers (70 pages)

E-Verify “desk reviews” State immigration laws Federal Contractors – FAR Clause



9. ICE and E-Verify Compliance

I-9 audits continue $110-$1,100 for paperwork violations per form

State immigration laws – response to perceived federal inaction (ex. AL, AZ, FL, GA, SC)

E-Verify audits on the rise Monitoring and Compliance Branch Desk audit reviews, site visits Can refer employer to ICE or DOJ for further investigation Increased information sharing between agencies



8. Immigration Service Enforcement: USCIS Site Visits

Key component of USCIS’ anti-fraud mission Fraud Detection & National Security Unit (FDNS) worksite visits,

funded by H-1B/L-1/H-2B filing fees Approx. 15,000 H-1B site visits per year Extending program to L-1 petitions

What to expect Unannounced inspection at work location listed in petition Typical duration: 15-60 minutes Officer will question company official and employee

Verify employer is legitimate; and Verify foreign worker is properly employed under terms/conditions

of H-1B, L-1, H-2B application (job title, duties, worksite location)




Why be ready?

USCIS can revoke approved petitions Deny pending petitions Criminal charges USCIS can partner with other agencies to uncover

mistakes/missteps Target for future visits?




Have a plan…

Ensure that H-1B worker still performs job listed on petition. If not, amend petition

Verify that worker is paid the required salary Confirm that H-1B LCA file is up to date Train receptionist to know how to respond Designate a manager to meet with FDNS Ensure that manager and employee are familiar with

the information stated in the H-1B/L-1 petition



Temporary Visas: H-1B Visas Labor Condition Application specifies the “Required Wage”

Position Level Location

Roving, moving, short term placement, third party placement, change in duties

When to file an H-1B amendment? LCA only?

7. H-1Bs and the Roving Workforce



7. H-1Bs and the Roving Workforce

Employees changing locations to work in other Metropolitan Statistical Areas and/or States/Regions

April 9, 2015 - New AAO decision Matter of Simeio Solutions, LLC 26 I&N Dec. 542 (AAO 2015) Must we file an amended H-1B petition with USCIS? YES! USCIS Guidance – initially stated it would apply retroactively

and employers would have until August 19 to submit amendments for all employees that changed worksites before April 9, 2015

Now must file amendment by January 15, 2016, if employee changed job sites between April 9 and August 19



3rd Party Placement Requirements Control

Must be “principally” under employer “control and supervision” or the placement will be considered “essentially an arrangement to provide labor for hire for the unaffiliated employer.”

“Control and supervision” requires employer to retain ultimate authority over the worker

Source of salary is not the controlling factor End-client letter and contract required

7. H-1Bs and 3rd Party Placements



3rd Party Placement Requirements (Continued) Additional Scrutiny

Reporting 35%-50+% denials from U.S. Consulates and USCIS

Impersonal and hostile nature of the visa interview and adjudications process

Extensive Requests for Evidence sent from USCIS

7. H-1Bs and 3rd Party Placements



Temporary Visas: L-1 Intra-company Transfers

Multinational companies with a parent, subsidiary, branch, or affiliate abroad to transfer employees to U.S.

Two types: Managers/executives (L-1A) “Specialized knowledge” (L-1B) employees

Worked abroad for at least one year during the last three years

6. L Visa Scrutiny



L-1 Challenges – Increased Scrutiny L-1B denial rate at all-time high – 35%

USCIS oftentimes denies L-1B petitions unless proven “proprietary” technology

Not proper standard, according to law

“Specialized knowledge” Strengthening and clearly defining specialized knowledge:

Connecting specialized knowledge to company’s products, processes, methodologies, platform, etc. and

Demonstrating why the foreign employee’s specialized knowledge is unique within the company such that he/she is one of a handful of employees who can perform the job duties for the specialized knowledge position

6. L Visa Scrutiny



L-1B “specialized knowledge” professionals Candidate selection is critical

Easily differentiated from other employees, i.e., candidate possesses a quantifiable distinction as compared to a skilled worker

Factors Tenure: the longer the better Knowledge of procedures or techniques proprietary to or owned by

employer-sponsor Training or exposure not available to similarly situated workers Salary comparable to U.S.

6. L Visa Scrutiny



5. Executive Action: L-1B Adjudications

USCIS has drafted new L-1B memo for review to “clarify” policy (issued Mar. 24, 2015 – to take effect Aug 31, 2015)

Hopeful it would clarify standards so employers would have more predictability

Worker must have “distinct or uncommon” knowledge and “advanced” within workforce – vague

Bottom Line: Not much clarification provided



4. Immigrant Visa Program (Green Cards)

Current backlogs for green cards (10+ years for some) Workers locked into same job title and employer for years Immigrant visa numbers sometimes “lost” Difficult to predict how many years process will take

Current system: workers waiting in limbo for several years for green cards Can run out of time on temporary visas while waiting May have to leave U.S.; business suffers



Visa Bulletin - August 2015

Employment- Based

All Chargeability Areas Except Those Listed

CHINA - mainland born

INDIA MEXICO PHILIPPINES

1st C C C C C

2nd C 15DEC13 01OCT08 C C

3rd 15JUL15 01JUN04 01JUN04 15JUL15 01JUN04

Other Workers

15JUL15 01JAN04 01JUN04 15JUL15 01JUN04

4th C C C C C



3. Executive Action: Green Cards

Proposed system: reduce backlogs and ensure usage of all immigrant visa numbers Would not count spouses against the quota

Proposed system: “pre-registration” for AOS benefits Interim work and travel authorization Would impact approx. 410,000 people

Allow for career progression and employer change Reliable and predictable timelines for green cards

No time frame yet for further action



2. Congressional (IN)Action

U.S. Comprehensive Immigration Reform Senate Bill S.744

Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 passed on June 27, 2013 in a 68-32 vote.

House House Republicans released their “Standards for

Immigration Reform,” a one-page document of basic principles on January 31, 2014.




Senate Bipartisan Framework for Comprehensive Immigration Reform

Four basic elements:

1. A path to legalization for illegal immigrants

2. Increased border security

3. Increased employer verification requirements

4. Employment-based immigration



House Statement

Rejects comprehensive reform

Border security first

Entry-exit tracking

Employment verification





Senate Bill Has Positive and Negative Impact on Employers

+ More H-1B professional work visas available- Lengthier and more expensive process to obtain H-1B

professional work visas- Additional rules and fees relating to “outsourcing” H-1B and

L-1 workers to third-party sites+ New Work Visa (“W”) classification for lower-skilled workers- Mandatory E-Verify- Increased civil and criminal liability for employing authorized

individuals



1. H-1B Shortage

Most common work visa for professionals Specialty occupation, requires bachelor’s degree 65,000 regular H-1Bs each fiscal year 20,000 visas for U.S. graduate degree Past 3 years, quota depleted in first filing week

233,000 new petition filed for FY 2016 (36%)

I-Squared Act proposed January 13, 2015 Would raise cap: range of 115,000-195,000 No cap on H-1Bs for U.S. graduate degree



1. H-1B Shortage

Alternatives to H-1B:Other work visas: TN, E, L, OTrainee visas: J-1, H-3Spousal work authorizationCap exempt H-1BsOPT extensionsGlobal employment options



QUESTIONS? Lee Depret-Bixio

Columbia, SC

803.252.1300

[email protected]

mailto:[email protected]

managing employers’ top 10 business immigration challenges august 13, 2015. ogletreedeakins.com

Documents

years dapa deferred

daca expansionadministration

implementation of dapa

legislative changes

form changes

work permits

retaliation law

talentshortage of h