Business Immigration Law:
Strategies For Employing Foreign Nationals
Authors:
Rodney A. Malpert and Amanda Petersen
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Finally, employing foreign nationals has been demystified! Business Immigration Law: Strategies for Employing Foreign Nationals guides you step by step through this intricate legal maze. An impressive array of specialists provides helpful and pragmatic advice on the nonimmigrant work authorization, including: specialty occupations (H-1Bs); intra-company transfers from abroad (L-1); and treaty traders and investors (E-1 and E-2). Coverage includes: tax issues; discrimination law problems raised by screening foreign nationals during hiring; and how to avoid sanctions for I-9 violations. This book's appendices provide forms, guidelines, regulations and other helpful materials. Please see its companion volume, Business Immigration Law: Forms and Filings.
BOOK OUTLINE
CHAPTER 1
Basic Concepts
§ 1.01 Legislative Authority
§ 1.02 Agencies
[1] Department of Homeland Security (DHS): USCIS, ICE, and CBP
[2] Department of State (DOS)
[3] Department of Labor (DOL)
[4] Other Agencies
§ 1.03 Statutes, Regulations, and Other Guides
§ 1.04 Immigrant and Nonimmigrant Status
[1] Essential Concepts
[2] Extending, Changing, or Adjusting Status
[3] Immigrants versus Nonimmigrants
§ 1.05 Nomenclature of Visa Categories Such as E, L, and H 1B
§ 1.06 Visa Waiver Permanent Program
§ 1.07 Obtaining Nonimmigrant Status
[1] Petitioning the USCIS
[2] Obtaining a Visa
[3] Avoiding Problems upon Admission to the United States
[4] Change of Status from Within the United States
[5] Procedure for Filing a Nonimmigrant Petition
§ 1.08 Dependents of Nonimmigrants
[1] Obtaining Nonimmigrant Visas
[2] Obtaining Nonimmigrant Status
[3] Employment
[4] Education
§ 1.09 Maintenance and Limitations of Nonimmigrant Status
§ 1.10 Extension of Nonimmigrant Status
[1] Contents, Structure, and Purpose of Extension Petitions
[2] Filing Extension Petitions
[3] Employment During Pendency of Extension Petitions
[4] Denials
§ 1.11 Inadmissibility
[1] Grounds
[2] Determinations of Inadmissibility
[3] Overcoming Inadmissibility to Obtain Entry
CHAPTER 2
Recruiting Foreign Nationals
§ 2.01 The Need for a Strategy
§ 2.02 Potential Disadvantages of Recruiting
[1] Delay in Obtaining Employment Authorization
[2] Cost of Obtaining Employment Authorization
[3] Limited Length of Employment Authorization
[4] Subsequent Costs: Changes in Terms and Employment Termination
§ 2.03 Deemed Export Rule
[1] Sources of Export Regulation
[2] "Export" and "Deemed Export" Defined
[3] Which Employees Are Subject to the "Deemed Export" Rule
[4] Items and Activities Subject to Export Regulation
[5] When a License Is Required for a Deemed Export
[6] Screening for Export Control Issues in Recruitment and Hiring
§ 2.04 Discrimination Issues
[1] Overview
[2] Which Employers Are Subject to Antidiscrimination Laws
[3] National Origin Discrimination
[4] Citizenship Status Discrimination
[5] Document Abuse
[6] Wage and Hour Laws/Workers' Compensation Benefits
[7] The Retaliation Case
[8] RICO
§ 2.05 Hiring Practices and Employment Policies
[1] Interviewing Applicants
[2] Limiting Visa Status Sponsorship
[3] The Labor Certification Process: Who Is a "United States Worker"?
[4] United States Citizens-Only: Hiring Policies
[5] United States Citizens-Only: Policies Affecting Terms or Conditions of Employment
[6] Treaty-Authorized Discrimination Against United States Citizens
[7] Choosing Between Equally Qualified United States Citizens and Foreign Nationals
[8] Choosing Between Undocumented Aliens/Nonimmigrants and Protected Individuals
[9] Fluency in English and "English-Only" Policies
[10] Job Assignments
[11] Requiring a Social Security Number
[12] National Security Clearance
§ 2.06 Enforcement
[1] Agency Jurisdiction
[2] Filing a Charge Under IRCA
[3] Filing a Charge Under Title VII
§ 2.07 Recruiting Students
[1] Student Visa Status and Employment
[2] New Visa Status: Timing Considerations
§ 2.08 Employment Contracts
[1] The Unintended Contract
[2] Sponsorship and Fees Contracts
CHAPTER 3
Short-Term Needs
§ 3.01 Introduction
§ 3.02 B-1 Visas
[1] Overview of B-1 Status
[2] Permissible Activities
[3] Obtaining B-1 Status
§ 3.03 H-2B Status
[1] The Temporary Need
[2] H-2B Quota
[3] How to Obtain H-2B Status
§ 3.04 H-3 Status
[1] The Training Program
[2] How to Obtain H-3 Status
[3] Extension of H-3 Status; Changing to Another Status
§ 3.05 J-1 Exchange Visitor Status
[1] Summary of Program Categories
[2] Obtaining J Status
[3] J-1 Status Entry
[4] Reinstatement of J Status Holders
[5] Obligation of Sponsor upon Completion of the J Program
[6] Transfer of Sponsors
[7] Employment of J Status Holders
[8] Two-Year Return Residence Requirement
[9] Sanctions for Regulatory Breaches
[10] Termination of J Program Sponsorship
§ 3.06 O-1 Status for Extraordinary Foreign Nationals
[1] Extraordinary Ability Defined
[2] Extraordinary Foreign Nationals Must Enter the United States to Work in Their Fields
[3] Peer Group Consultation
[4] O-2 Status Holders Accompanying Foreign Nationals
[5] How to Obtain O Status
CHAPTER 4
Specialty Occupation Professionals
§ 4.01 Introduction to H-1B Program
§ 4.02 General Requirements of Program
[1] Status of Petitioner
[2] Specialty Occupation Defined
[3] Foreign Worker's Qualifications
[4] Labor Condition Application as Prerequisite
[5] Filing the H-1B Petition
[6] Receipt of H-1B Status
§ 4.03 Establishment of the H 1B Category and the H 1B "Cap"
[1] Statutory Provisions
[2] Regulations
[3] The H-1B "Cap"
§ 4.04 The Petitioner and Its Job Offer
[1] The "United States Employer"
[2] The Bona Fide Nonspeculative Job Offer
§ 4.05 Specialty Occupation Defined
[1] The Legal Standard
[2] Defining the Job
[3] Straightforward Specialty Occupations: The "Easy" Cases
[4] Establishing the "Specialty Occupation" in Complex Cases
[5] Additional Criteria
[6] Occupational Categories
§ 4.06 Beneficiary's Required Qualifications
[1] The Legal Standard
[2] United States or Foreign Baccalaureate Degree
[3] Baccalaureate Degree Subject Matter
[4] Education Plus Experience and Training
[5] Licensure
[6] Physicians
[7] Certification for Foreign Health Care Workers
§ 4.07 The Labor Condition Application (LCA)
[1] Background and Purpose
[2] Payment of "Required Wage Rate": LCA Attestation #1
[3] "No Adverse Effect on Working Conditions": LCA Attestation #2
[4] "No Strike or Lockout": LCA Attestation #3
[5] Notice to Employees of Filing: LCA Attestation #4
[6] "Non-Displacement" and Recruitment of U.S. Workers: LCA Attestations for "H 1B Dependent" and "Willful Violator" Employers
[7] Completing the LCA
[8] Filing the LCA
[9] The Public Access File and Retention of Records
[10] Payment of Required Wage and Prohibition on Nonproductive Status
[11] When a New LCA Is Required for a Change in Location and "Short-Term" Placement
[12] Enforcement and Penalties
§ 4.08 H-1B Petition Filing
[1] The Petition
[2] Preparing the Petition
[3] Filing the Petition
[4] Requests for Evidence
[5] The Notice of Approval
[6] The H-1B Visa Application and Entry into the United States
[7] Beginning Work
[8] Post-Approval Travel and Visa Processing
[9] Denial and Revocation of a Petition
[10] Special Procedures for Nationals of Chile, Singapore, and Australia
§ 4.09 Special Problems and Advanced Strategies
[1] Transfer Between Multiple Work Locations
[2] "Bench Time"
[3] "Recapturing" Time and Other Strategies to Extend the Six-Year Maximum
[4] Lapse of Status
[5] Anticipating the Annual H 1B Cap
[6] Mergers, Acquisitions, Relocations, and Other Corporate Changes
[7] Termination or Resignation of an H 1B Employee
[8] Maintenance of Status and Portability
CHAPTER 5
Intra-Company Transfers
§ 5.01 Overview of L Status
[1] Generally
[2] Establishing New United States Operations
§ 5.02 The Qualifying Organization
[1] Overview
[2] Elements of the Qualifying Organization
§ 5.03 The Employment
[1] Employment in the United States
[2] Employment Outside the United States
§ 5.04 How to Obtain L Status
[1] Individual Petitions
[2] Blanket Petitions
[3] Maintenance of L Status
§ 5.05 Extensions of Individual L Petitions
[1] Procedure
[2] Evidence
§ 5.06 Extensions of Blanket L Petitions
[1] Validity Periods
[2] Status Holders' Stays in the United States
§ 5.07 Duration of L Status
§ 5.08 Notification of Material Changes
[1] Corporate Reorganizations
[2] Terms and Conditions of Employment
[3] Transfers to Other Qualifying Organizations
§ 5.09 Spouses and Dependent Children
§ 5.10 Effect of Strikes or Lockouts on L Status
CHAPTER 6
Investment and Trade: E Visas
§ 6.01 Overview
[1] Requirements
[2] Interaction between the Department of State and the U.S. Citizenship and Immigration Services
[3] Duration: A Long-Term Visa Option
§ 6.02 The Treaty Requirement
[1] Types of Qualifying Treaties
[2] Treaty Limitations
[3] Special NAFTA Requirements
§ 6.03 Nationality Requirements
[1] General
[2] Nationality of Individuals
[3] Nationality of Business Organizations
[4] Nationality Requirements for Employees of Treaty Aliens or Treaty Organizations
§ 6.04 Qualifying Functions
[1] The Treaty Trader or Investor
[2] Employees of the Treaty Alien or the Treaty Enterprise
[3] Defining the Position: Employment Discrimination Rules Affecting E Enterprises
§ 6.05 Treaty Trader Issues
[1] Overview
[2] The Definition of "Trade"
[3] The Requirement of "Substantial Trade"
[4] The Requirement of Trade Primarily with the Treaty Country
§ 6.06 Treaty Investor Issues
[1] Overview
[2] The Definition of "Invested" or "Process of Investing"
[3] Investment in a Bona Fide Enterprise
[4] Investment of a "Substantial" Amount of Capital
[5] Marginality
[6] The Ability to Develop and Direct the Enterprise
§ 6.07 Employees of Treaty Traders and Investors
[1] General
[2] Work in a Corporate Group
[3] Substantive Changes in Employment
[4] Nonsubstantive Changes in Employment
[5] Employment of E Treaty Dependents
§ 6.08 Procedures to Obtain E Status
[1] Consular Processing versus the USCIS
[2] Consular Processing Procedures
[3] USCIS Processing Procedures
§ 6.09 Duration and Extension of E Status
[1] Duration of E Visas
[2] Duration of Authorized Stay
[3] The Inadvertent Overstay
[4] Renewal of E Visas Issued at a United States Consulate
[5] Extension of Authorized Stay through the USCIS
§ 6.10 E Status versus Other Nonimmigrant Status
[1] Advantages
[2] Disadvantages
§ 6.11 Immigrant Visas for E Visa Holders
CHAPTER 7
NAFTA
§ 7.01 Introduction
§ 7.02 Business Visitors (B-1)
[1] Permissible Activities
[2] Procedures
§ 7.03 Professionals (TN)
[1] Comparisons to H-1B
[2] Qualifying for TN Classification
[3] Requirements for Citizens of Canada and Mexico
[4] Special Provisions for Citizens of Canada
[5] Special Provisions for Citizens of Mexico
[6] Effect of Labor Disputes
§ 7.04 Traders and Investors (E)
§ 7.05 Intra-Company Transferees (L-1)
§ 7.06 The INSPASS and PORTPASS Programs
[1] Pilot Automated Inspection System (INSPASS)
[2] Port Passenger Accelerated Service System (PORTPASS)
§ 7.07 Temporary Entry: Other Provisions
[1] Protecting Domestic Labor Forces
[2] Temporary Entry Working Group
[3] Spouses of Business Persons: Right to Work
§ 7.08 Canadian Border Admissions
[1] Increased Border Enforcement
[2] Summary Exclusion and Removal Proceedings
[3] Unlawful Presence: Bars to Future Admissibility
§ 7.09 Expedited Removal Proceedings
[1] Persons Subject to Expedited Removal
[2] Procedures
[3] Judicial Review
[4] Consequences of Expedited Removal
§ 7.10 New Grounds for Inadmissibility
[1] Health Care Workers
[2] F-1 Students Who Violate Status
[3] Unlawful Presence
[4] Aliens Engaged in Significant Trafficking in Persons
[5] Aliens Engaged in Money Laundering
§ 7.11 Entry-Exit Controls and the Lookout
§ 7.12 Strategies for Easing Border Admis-sions
[1] Know Your Client
[2] Know the Intricacies of Immigration Requirements
[3] Know the Free-Trade Officers
[4] Know Your Plan of Action
CHAPTER 8
Employee Sanctions
§ 8.01 History and Overview of Employer Sanc-tions
[1] Introduction
[2] Developments from 1986 to 1996
[3] The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
[4] SEVIS
§ 8.02 Definitions
[1] Person or Other Entity
[2] Hire
[3] Employment
[4] Employer
[5] Employment in the United States
[6] Recruiters and Referrers for Fees
§ 8.03 The Prohibition against Knowing Employment of Unauthorized Aliens
[1] Introduction
[2] Unauthorized Alien
[3] Actual and Constructive Knowledge
[4] Social Security Numbers
[5] The Defense of Good Faith Verification
[6] Criminal Offenses
§ 8.04 I-9 Compliance
[1] Who Completes I-9 Forms
[2] Personnel Requiring Completion of I-9 Forms
[3] Personnel Not Requiring Completion of I 9 Forms
[4] Timing of Completion of the I-9 Form
[5] Completing the I-9 Form
[6] National Electronic Verification Programs
[7] Employer Defenses
[8] Records Retention
[9] Document Fraud
[10] Proposed Reforms
§ 8.05 Document Abuse
[1] Introduction
[2] Avoiding Acceptance of Additional Documents Offered by Employees
[3] Avoiding Unjustified Requests for More or Different Documents
[4] The Requirement of Intentional Discrimination
§ 8.06 Penalties
[1] Knowing Employment, or Contracting for Labor of, Unauthorized Aliens
[2] I-9 Violations
[3] Indemnity Bonds
[4] Document Fraud
[5] Document Abuse
[6] National Verification Pilot Program
[7] Preemption of Other Penalties
§ 8.07 Enforcement
[1] I-9 and Knowing Employment Violations
[2] Document Abuse Violations
§ 8.08 Issues Arising from Reorganizations
[1] Introduction
[2] I-9 Verification
[3] Work Authorizations
[4] Grandfathered Employees
[5] Due Diligence
CHAPTER 9
Tax Issues
§ 9.01 Taxation of United States Citizens
[1] Overview
[2] Living and Working Abroad
[3] Expatriation
§ 9.02 Taxation of Foreign Nationals
[1] In General
[2] Other Taxes
§ 9.03 Determination of Resident Foreign National Status
[1] In General
[2] Tax Treaties
§ 9.04 Permanent Residence Test
[1] In General
[2] Revocation of Status
[3] Abandonment of Status
§ 9.05 Substantial Presence Test
[1] In General
[2] Examples
[3] Thirty-one Day Rule
[4] Counting Days
[5] "United States" Defined
§ 9.06 Exceptions to Substantial Presence Test
[1] In General
[2] Presence for Fewer Than 183 Days per Year
[3] Foreign Government-Related Individu-als
[4] Teachers and Trainees (J and Q Status)
[5] Students
[6] Professional Athletes
[7] Medical Condition of Foreign Nationals
[8] Commuters from Canada and Mexico
[9] Foreign Nationals in Transit
[10] Foreign Vessel Crew Members
§ 9.07 Resident Foreign National Election
§ 9.08 Resident Foreign National Starting and Termination Dates
[1] In General
[2] Residency Starting Date
[3] Residency Termination Date
[4] No Lapse Rule
§ 9.09 Taxation of Nonresident Foreign Nationals
[1] In General
[2] Source of Income Rule
§ 9.10 Net Basis Taxation
[1] In General
[2] United States Trade or Business
[3] Effectively Connected Income
[4] Allowance of Deductions
§ 9.11 Investments in Real Property in the United States
[1] In General
[2] Tax on Disposition
[3] United States Real Property Interest
[4] Withholding
§ 9.12 Gross Basis Taxation
[1] Withholding Tax
[2] Gains
[3] Income from Real Property
[4] Interest
[5] Reduced Rates under a Treaty
§ 9.13 Income Tax Treaties
[1] In General
[2] Model Treaty Provisions
§ 9.14 Withholding from Compensation
[1] In General
[2] Wages: Form W-4
[3] Pensions
[4] Independent Contractors
§ 9.15 Withholding from Other Income
[1] In General
[2] Partnership Income
[3] Scholarships and Fellowships
§ 9.16 Withholding Exempted or Reduced by a Tax Treaty
[1] In General
[2] Employees
[3] Independent Contractors
[4] Students, Teachers, and Researchers
§ 9.17 Social Security and Federal Unemployment Taxes
[1] In General
[2] Application to Nonimmigrants
[3] International Social Security Agree-ments
[4] Underpayment and Overpayment of FICA and FUTA Taxes
CHAPTER 10
The Interaction Between Immigrant and Nonimmigrant Statuses
§ 10.01 History of Immigrant Preference Categories
§ 10.02 Applying for Employment-Based Permanent Resident Status
§ 10.03 First Preference Category
[1] Extraordinary Foreign Nationals
[2] Outstanding Researchers and Professors
[3] Multinational Managers or Executives
§ 10.04 Second Preference Category
[1] Exceptional Ability
[2] Schedule A Non-Labor Certification Occupations
[3] Advanced-Degreed Professionals
§ 10.05 Third Preference Category
§ 10.06 Labor Certification
§ 10.07 Immigrant Petition
§ 10.08 Adjustment of Status or Consular Processing of Immigrant Visas
§ 10.09 U.S. Business Structure Effect on Nonimmigrant and Immigrant Categories, Choices, and Interaction
[1] Maximum Stay and EB 1 Petition Process
[2] Consistency Between Filings
ABOUT THE AUTHORS
Rodney A. Malpert is a partner at Fragomen, Del Rey, Bernsen & Loewy, LLP in Phoneix, AZ and for many years taught Immigration Law at Southern Methodist University Law School. Mr. Malpert has been on the Board of Directors of the American Council on International Personnel. He has also been an active lobbyist for business immigration reform and is frequently sought by media for commentary, being interviewed for television news and publications such as CNN Money Magazine, Business Week, ILW Immigration Daily, IT News, Computer World, Workforce Management, Information Week and various newspapers. Mr. Malpert is a frequent speaker at conferences throughout the world. He has also made presentations at a number of consulates on behalf of clients in China, Vietnam, and India. He is a 1986 graduate of Cornell University Law School and has an M.A. in Government from Cornell.
Amanda Petersen supervises all inbound and outbound immigration for Fermilab, a national science laboratory in Batavia, Illinois, managed by the Fermi Research Alliance for the Department of Energy's Office. She is a frequent writer and speaker on a variety of immigration topics, and is a member of the American Immigration Lawyers Association. She was born in Edinburgh, Scotland, and grew up in Edmonton, Alberta, Canada. She has a Bachelor of Arts degree from the University of Alberta, Canada and a Law Degree from the University of British Columbia, Canada. Previously, she was Counsel with the law firm of Mandel, Lipton & Stevenson Ltd. in Chicago.
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