Managing Your Global Workforce:A Positive Approach

Debra J.C. Dowd, Esq.Jeffrey A. Van Doren, Esq.

LeClairRyan, A Professional Corporation©2011 LeClairRyan, A Professional Corporation

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Jeff Van DorenRoanoke

Debra Dowd Richmond

The New Colossus-Emma Lazarus

Not like the brazen giant of Greek fame,With conquering limbs astride from land to land;Here at our sea-washed, sunset gates shall stand

A mighty woman with a torch, whose flameIs the imprisoned lightning, and her nameMother of Exiles. From her beacon-hand

Glows world-wide welcome; her mild eyes commandThe air-bridged harbor that twin cities frame.

“Keep, ancient lands, your storied pomp!” cries sheWith silent lips. “Give me your tired, your poor,Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.Send these, the homeless, tempest-tossed to me.

I lift my lamp beside the golden door!”

Topics We Will Cover

Policies and Practices Hiring and Planning Employment Agreements Immigration Sponsorship Employer Compliance

POLICIES AND PRACTICES

Policies and Practices

Position Descriptions! Immigration Sponsorship for Non-Immigrant Visas

• New• Extensions • Who makes the sponsorship decision• Who has signatory authority

Immigration Sponsorship for Immigrant Visas• Timing• Employment Based Category Debate• Who make the sponsorship decision• Who has signatory authority

Coverage of costs and fees

Policies and Practices Continued…

Family members• Visa Applications• Payment of costs and fees

Employee Responsibilities Immigration Filings by In-House Team Immigration Filings by Outside Counsel

HIRING AND PLANNING

Hiring and Planning

Interview Process• Balancing the “need to know” for business purposes

v. the “appearance” of discriminatory behavior Initiating and Planning the Immigration Process Managing the Start Date

EMPLOYMENT AGREEMENTS

Employment Agreements

Present and future employment contingent upon employment eligibility in the U.S.

Immigration Sponsorship in accordance with Company’s Sponsorship Policies

Policies subject to revocation and/or change from time to time

Immigration Sponsorship does not alter the “at will” employment relationship or “term of employment.”

IMMIGRATION SPONSORSHIP

Government Regulation

Department of Homeland SecurityUS Citizenship & Immigration ServicesUS Immigration & Customs EnforcementDirectorate of Border & Transportation Security

Department of LaborState Workforce Agencies

Department of StateNational Visa CenterConsular Posts

Department of JusticeExecutive Office of Immigration Review

Immigrants v. Non-Immigrants

Green Card Permanent Family Based Petitions Employment Based

Petitions No limitation on

activities, length of stay

Alphabet Soup Temporary Tourism, Education &

Employment Based Limitations on activities,

length of stay

NONIMMIGRANT (TEMPORARY)

VISAS

Non-Immigrant Visas –Students / Limited Employment

F-1 VisaAcademic Student

On Campus CPTCurriculum Practical Training

OPTOptional Practical Training

Non-Immigrant Visas –Employment-Based

Employer-Specific Visas

Commonly Used

H-1B Visa TN Visa O-1 Visa J-1 Visa

H-1B Visa

Employment based non-immigrant visa Employer specific Reserved for “Specialty Occupations” =

occupations requiring the equivalent of a four-year degree in a field related to the occupation

No advertising/recruitment efforts required

H-1B Cap

There are a limited number of H-1B visas issued each fiscal year (October 1st through September 30th)

Cap-Subject Employer v. Cap-Exempt Employer Cap-Exempt Employers include:

• Institutions of Higher Education• Nonprofit Entity related to or affiliated with an Institution of

Higher Education• Nonprofit research organization or a governmental research

organization

H-1B Extensions

Begin extension process 6 to 4 months in advance of expiration

H-1B maximum is 6 years Track travel outside U.S. H-1B extensions beyond 6 years

• PERM filed prior to 5th anniversary• I-140 Petition approved prior to 6th anniversary

H-1B Government CostsGovernment Filing Fees

Base Fee $325Fraud Fee $500[1]Supplemental Fee $1,500[2]Border Security Fee $2,000[3]Premium Processing Fee (Optional) $1225

[1] The Fraud Fee is imposed on the Employer’s first H-1B filing for the named Beneficiary. If this is an extension or an amended filing by the Employer for the same Beneficiary, the Fraud Fee will not be charged by the CIS.

[2] Counsel must evaluate whether the Employer is exempt from the Supplement Fee. If the Employer has 25 or fewer employees the Supplement Fee is $750.

[3] The Border Security Fee is required for a new H-1B Petition filed by a Employer meeting the following two criteria: (i) more than 50 employees AND (ii) 50% or more of those employees are in H or L non-immigrant visa status. The Border Security Fee is imposed on the Employer’s initial H-1B filing for the named Beneficiary. If this is an extension or an amended filing by the Employer for the same Beneficiary, the Border Security Fee will not be charged by the CIS.

TN Visa

NAFTA Treaty Canadian Citizens Mexican Citizens Limited List of Occupations

O-1 “Extraordinary” Ability Aliens

Available to aliens who have “extraordinary” or “outstanding” ability in the fields of science, education, business, athletics, the arts and entertainment

Consultation from either a labor union or a leading organization in the field required

J-1 Exchange Visitors Promotes interchange of persons with knowledge and

skills in fields of education, arts and sciences Employers cannot

sponsor directly but must go through anapproved program sponsor or become a program sponsor

IMMIGRANT (PERMANENT) EMPLOYMENT-BASED VISAS

The Roads to Green Card

1. Family-Based Petition2. Employment-Based Petition3. Self-Petition4. Asylum/Refugee5. Special Legislation

Employment-Based Preferences EB-1 Priority Workers

Extraordinary AbilityOutstanding Professors and ResearchersMultinational Executive and Managers

EB-2 Advanced Degree or Exceptional Ability/NIW Professionals holding Advanced DegreesExceptional Ability in the sciences, arts, business, or athletics

EB-3 Professionals, Skilled Workers & Other Workers

EB-4 Special Immigrants

EB-5 Employment Creation (Investment)

Employment-Based IV Process

An Application Package is filed with the USCIS.

At this stage, the Applicant may also apply for employment authorization and travel permission.

The principal Applicant’s spouse and children may also seek legal permanent resident status, employment authorization and travel permission.

Note: travel permission is not recommended in all cases.

A Petition Package is filed with the USCIS. The USCIS will review the Petition Package to ensure:

The Employer has the financial ability to pay the offered wage at the time the case commenced (filing of labor certification).

The Employee has the skills, qualifications, and experience necessary to perform the job.

Test US Market to ensure that there are no qualified US Workers ready, willing, and able to accept the job position.

We work with the Employer and target Employee to identify in detail the target job duties and requirements and the target Employee’s education, work experience, skills and abilities.

We then prepare an appropriate Application, advertise the job, counsel the Employer through the recruitment efforts, and finalize the process. Once final, we submit the case to the U.S. Department of Labor.

Adjustment of Status/Consular

PetitionLabor Certification

Visa Bulletin – April 2011

CCCCC

Targeted Employment Areas/Regional Centers

CCCCC5th

CCCCCCertain Religious Workers

CCCCC4th

22JUL0322JUL0308APR0222APR0322JUL03OtherWorkers

22JUL05 08MAY04 08APR0201MAR04 22JUL05 3rd

CC08MAY0622JUL06C2nd

CCCCC1st

PHILIP-PINESMEXICOINDIACHINA-

mainland born

AllChargeabilityAreasExceptThoseListed

Employment-Based

Alien Labor Certification

The purpose of the alien employment certification process is to protect the U.S. workforce

Will be issued only if the DOL determines there is an insufficient supply of “available, willing and qualified”U.S. Workers for the particular job involved

Required Recruitment For PERMFor all job positions other than “Special Handling” Internal posting for ten consecutive business days Place job order with state

employment agency for 30 days Use of any and all in-house

media (intranet, internal postings, etc.)

Two print advertisements (Sundays) in the newspaper of general circulation for area of employment.

Additional Required Recruitment If the job is for a “professional” job (one which requires at

least a bachelor’s degree or higher), must undertake three additional recruitment steps from a list of ten approved by the DOL:• Job fairs Employee referral program• Employer’s Website Campus placement office • Job search website Local or ethnic newspapers• On-campus recruiting Private employment firms• Trade/professional

organization Radio/television ads

Can I Avoid Labor Certification?

Only a small number of employment-based immigration cases can avoid the labor certification requirement:

Schedule A Cases Extraordinary Ability Petition Outstanding Researcher/Professor Petition National Interest Waiver Petition

Extraordinary Ability

Self-Petition No Job Offer/Labor Certification Required “Extraordinary Ability” means a level of

expertise indicating that the individual is one of that small percentage who have risen to the very top of the field of endeavor

Extraordinary Ability Proof

Sustained national or international acclaim and evidence that his or her achievements have been recognized in the field of expertise.

Major internationally recognized awardOR

At least three “other” items

Extraordinary Ability “Other” Proof Lesser nationally or internationally recognized prizes/awards Membership in associations which require outstanding

achievements Published material about the applicant Applicant’s participation as the “judge” of others Original scientific, scholarly, etc., contributions of major

significance Authorship of scholarly articles Display of work Performed in leading or critical roles in organizations with

distinguished reputation High salary in relation to others in the field Commercial successes Other comparable evidence

Outstanding Researcher/Professor

Employer Sponsored Job Offer Required/No Labor Certification Permanent, in reference to a research position, means

either: (1) tenured; (2) tenure-track; or (3) for a term of indefinite or unlimited duration, and in which the employee will ordinarily have an expectation of continued employment, unless there is good cause for termination

Outstanding Researcher

Requires evidence that the R/P is recognized internationally as outstanding in the academic field

At least three years’ experience in research Evidence shall consist of at least two of the following:

• Receipt of major prizes or awards• Membership in associations which require outstanding

achievements• Published materials about the researcher• Researcher sits as the judge of others• Original scientific or scholarly research contributions to the

academic field• Authorship of scholarly books or articles

Advanced Degree/Exceptional Ability Generally requires job offer and labor

certification Becomes a Self-Petition if filed as a National

Interest Waiver case Master’s Degree = Advanced Degree Default to Advanced Degree (v. Exceptional

Ability) Be very careful with 3 year Bachelor Degrees!

National Interest Waiver

Does the applicant seek employment in an area of “substantial intrinsic merit”?

Will the proposed benefit be national in scope? Will the “significant” benefit derived from the

individual’s participation in the field of endeavor considerably outweigh the inherent national interest in protecting U.S. workers through the labor certification process?

EMPLOYER COMPLIANCE

Employer Compliance

I-9 Compliance E-Verify

• Stem Occupations Audits

• Self Audits• Audits by Counsel• Government Audits

Same Issue, Different Century: What’s Not New in the Immigration Debate

U.S. employers have always been at the heart of the perennial debate about who to let in, who to keep out, and whether we really are a “nation of immigrants.”

Same Issues, Different Century

The U.S. Employer has always been at the heart of this debate.

Chinese labor (1850s) used in railroads, garment industries, agriculture and mines.

Italian labor (1900s) used to dig out NYC subways

Now at the heart of the (illegal) immigration debate presently waging between U.S. political ideologies.

Same Issues, Different Century

US Employers: The New Border Patrol?

“Employers are being held to a much higher standard than ever before, with deficiencies in DHS paperwork requirements exposing those employers to far more than administrative fines and penalties…[I]t is imperative that employers scrupulously employ practices and policies for proper preparation and maintenance of I-9 records, as well as strictly adhere to the anti-discrimination and anti-document abuse protections.”

Cora D. Tekach, Securing Our Borders from Within: Forcing Employers to be the Virtual Fence, 07-12 Immigration Briefing 1 (Dec. 2007)

U.S. Employers: The Real Border Patrol

The “Culture of Compliance”“Since President Obama took office, the Department of Homeland Security has audited more than 2,785 employers suspected of hiring illegal laborers, compared to 500 audits in all of 2008, according to Matthew Chandler, a spokesman for the U.S. Immigration and Customs Agency, known as ICE. The Obama administration has debarred 105 companies and 81 individuals and issued more than $6.4 million in fines, he said.

“We are going after the root cause of illegal immigration and getting rid of the culture of compliance among employers,”Chandler told Fox News.

Source: “Administration's ‘Silent Raids’ Lead to Firings Not Deportations,” FoxNews.com. http://www.foxnews.com/politics /2010/07/10/administrations-silent-raids-lead-firings-deportations/#(accessed Sept. 28, 2010)

Employer Compliance:The I-9 Process

Verifying Employment Eligibility

It is unlawful for an Employer to knowingly hire or continue to employ an individual who is not eligible to work in the United States.

The I-9 Employment Eligibility Verification Process is required by all employers, regardless of size, industry or location.

Getting Familiar with the I-9 Process

Employment Eligibility Verification FormHow to Obtain the I-9 FormHow to Administer the I-9 ProcessHow and When to Update the I-9 FormHow and When to Retain and Destroy the I-9

FormConducting an I-9 Audit

The I-9 Form

The purpose of the Form is to verify identity and employment eligibility

It is required by law for anyone hired after November 6, 1986 in accordance with the Immigration Reform and Control Act of 1986 (IRCA), including citizens, owners, etc.

The current version of the Form is dated August 7, 2009.

I-9 Handbook for Employers

The USCIS publishes a Handbook for Employers describing the I-9 Requirements. The handbook can be found at http://www.uscis.gov/files/form/m-274.pdf

Updates have historically been published in periodic Employer Information Bulletins.

I-9 Compliance Every employer and every

employee, including U.S. citizens, business owners, etc. must complete the I-9 Form.

The Form consists of Sections 1 and 2

There is an associated list of documents containing Schedules A, B, and C

The printed Schedules are not exhaustive.

How to Complete the I-9 FormEmployee’s SectionThe Employee should complete Section 1 on or before the first day of work, including signature and date.

How to Complete the I-9 FormEmployer’s SectionThe Employer should complete Section 2, including signature and date. The Employee must present and the Employer must review original documents: one item from List A OR one item from each of List B AND List C.

List A Documents

List A Documents prove both identity and employment eligibility

Review the list carefully

Accept only unexpired documents

List A Documents: U.S. Passport

List A Documents:Permanent Resident Card

Shows the seal of Department of Homeland Security, detailed hologram on front, photograph, name, signature, date of birth, alien registration number, expiration date, card number

List A Documents:Employment Authorization Card

Issued by USCIS to foreign nationals granted temporary employment authorization in the U.S.

Expiration date is on the front of the card.

List B and C Documents

List B Documents prove identity

List C Documents prove employment eligibility

Review the lists carefully

You cannot “trade” a list B document for a list C document (and vice versa)

List B Documents

Includes: Driver’s license, State ID card, school ID card with photograph, Voter’s registration card, U.S. Military card or draft record

If employee is under 18 and cannot present the above, a school record, report card, or doctor record is allowed.

List C Documents Includes: U.S. Social Security card, Birth

Certificate, Certification of Birth Abroad issued by Dep’t of State, U.S. Citizen ID card, Native American tribal document

Certification of Birth issued by Dep’t of StateU.S. Social Security Card

The I-9 Process:Avoid Discrimination Claims

Do NOT request or require specific documents. It is best to present to the new employee with the

“Lists” and tell him/her that you need one item from List A OR one item from both List B and List C.

Employers cannot refuse to accept documents that reasonably appear to be genuine.

To Copy or Not to Copy

Employers have the choice of whether to copy the Employee’s support documents.

Employers should have a determined policy on this issue and follow it strictly.

If an employer copies for one – copy for all. It is important to maintain consistency.

The I-9 Process:Re-verification

Section 3 of the I-9 Form Whenever a document used for employment

verification has an expiration date, the I-9 Form must be “re-verified” at the time of the expiration.

Employers should create a reliable “tickler”system for re-verification.

The I-9 Process:Retaining the I-9 Form

I-9 Forms can be stored as hardcopy, microfiche or microfilm, or electronically.

The forms should be retained for the longer of:• 3 years after the commencement of employment; or• 1 year after the last day of employment

All I-9 Software Products are Not Created Equal!

If your company elects to utilize a software program to produce, re-verify and store your I-9s, choose carefully.

The regulations require that I-9 Software Programs meet certain requirements.

I-9 Software Requirements

Reasonable controls to ensure the integrity, accuracy and reliability of the electronic generation or storage system

Reasonable controls designed to prevent and detect the unauthorized or accidental creations of, addition to, alteration of, deletion of, or deterioration of the forms

An inspection and quality assurance program A retrieval system, including indexing systems The ability to reproduce legible hardcopies

Employer Compliance:E-Verify

E-Verify

The E-Verify program is a free, automated working status verification system for federal, state, and local government employers as well as participating private employers.

The program is a partnership between the Dep’t of Homeland Security and the Social Security Administration.

E-Verify

Employers submit I-9 date online and receive an immediate initial response on employment eligibility.

State laws mandate the E-Verify program for all employers in AZ, MS and SC.

29 other states have considered or passed laws requiring the use of E-Verify. Some apply to all employers, some only to government contractors, and some only to government entities.

E-Verify – Where is it Required?

Source: http://www.numbersusa.com/content/learn/illegal-immigration/map-states-mandatory-e-

verify-laws.html (accessed Feb. 22, 2011)

E-Verify Statistics

These statistics are based on E-Verify cases in Fiscal Year 2010 (October 2009 through September 2010). Statistics may not add to 100 percent (or to the subtotals listed below) due to rounding.

E-Verify

Why do employees receive final non-confirmation responses? Either:• (a) They are not authorized to work in the United States;• (b) They didn’t know they could challenge an initial

mismatch; or • (c) They did not follow the necessary procedures to

prove work authorization after receiving an initial mismatch.

General Guidelines for E-Verify

Does not replace the I-9 process Cannot be used to pre-screen potential hires Can only be used to verify eligibility of newly hired

employees unless enrolled as federal contractor Queries must be conducted within 3 days after hire Does not protect against worksite enforcement You can terminate your E-Verify participation only

after giving 30 days notice of termination

Employer Compliance:Audits

Conducting An I-9 Audit

Obtain payroll register and confirm that every employee hired after November 6, 1986 has an I-9 on file.

If not, complete the I-9 now using the current date

Review I-9s to be sure that they are complete Making corrections to existing I-9s.

• Use different color ink. Initial and date changes• Never backdate

Correcting I-9s (continued)

• Never white out original information. Strike through and correct

• Changes to Section 1 of form must be made by employee

• If documentation is missing, ask employee to provide and make corrections to Section 2

Debra J.C. Dowd804.343.4069 Direct

804.332.1252 Mobiledebra.dowd@leclairryan.com

www.immigrationlawblog.comdebradowd on Twitterwww.leclairryan.com

Jeffrey A. Van Doren540.510.3054 Direct

540.588.7354 Mobilejeffrey.vandoren@leclairryan.com

www.leclairryan.com

Disclaimer

This presentation provides general information and is not legal advice and should not be used or taken as legal advice for specific situations. You should consult legal counsel before taking any action or making any decisions concerning the matters in this presentation.

This communication does not create an attorney-client relationship between LeClairRyan, A Professional Corporation and the recipient.

©2011 LeClairRyan, A Professional Corporation

Everywhere immigrants have enriched and strengthened the fabric of American life.

-John F. Kennedy

Disclaimer

This presentation provides general information and is not legal advice and should not be used or taken as legal advice for specific situations. You should consult legal counsel before taking any action or making any decisions concerning the matters in this presentation.

This communication does not create an attorney-client relationship between LeClairRyan, A Professional Corporation, and the recipient.

Copyright 2011 LeClairRyan, A Professional Corporation. All rights reserved.