1. Top Business Immigration Issues October 30, 2015

2. Dawn M. Gibson (319) 896-4004 dgibson@simmonsperrine.com Today’s Presenter:

3.  Hiring Temporary Foreign Workers (some basics)  Worksite Enforcement and Compliance Updates Overview:

4. U.S. CITIZENS VS. IMMIGRANTS VS. NON-IMMIGRANTS Immigrants = U.S. Permanent Resident or “green card holder”  Intent to come to U.S. permanently  Limited numbers allowed  Potential to become U.S. Citizen Non-Immigrant Alphabet Soup (A-V)

5. F-1 VISA (STUDENT) No off-campus work first year during the first academic year Some on-campus employment allowed After first academic year.  Curricular Practical Training (CPT)  Optional Practical Training (OPT) STEM OPT  Pre-completion or post-completion

6. F-1 VISA (STUDENT) Related to area of study Authorized prior to starting any work by DSO and USCIS  STEM extension-- E-Verify employer required  File STEM before OPT expires Cap-gap coverage

7. H-1B VISA  Most commonly requested of the H visas  Specialty occupation  Coming temporarily to the U.S.  Maintenance of foreign residence not required  Permanent position  Concurrent and part-time allowed

8. H-1B VISA H-1B cap:  65,000  Additional 20,000 available for those with master’s degree or higher  Once 20,000 reached, join normal pool Lottery  Petition accepted first five business days  Then luck of the draw

9. H-1B VISA Cap-exempt  Universities and related or affiliated nonprofits  Nonprofit research organizations; and  Government research organizations

10. H-1B VISA Who is an Employer?  Employ worker in U.S.;  Employer-employee relationship  IRS tax number required  Includes partnership or sole proprietor

11. H-1B VISA What is a Specialty Occupation?  Theoretical and practical application of a body of highly specialized knowledge; and  Attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States

12. H-1B VISA Employee—four ways to qualify  U.S. bachelors or higher degree required by the specialty occupation,  Equivalent foreign degree,  An unrestricted state license to fully practice a specialty occupation, or  Have the education or specialized training and/or progressively responsible experience equivalent to completion of a U.S. baccalaureate or higher degree and recognized expertise in the specialty occupation through progressively responsible positions

13. H-1B VISA What are the Employer’s Responsibilities?  Wages and working conditions  Notices  Public Access File  Return Transportation Home

14. H-1B VISA Extensions  Granted for initial 3 year period, 6 year max (some exceptions)  Leave country after 6 years  Recapture of time  Ongoing employer-employee relationship  Continuing wage obligations  Dependents extend status via I-539

15. H-1B VISA Portability  May work for new employer upon filing of new H-1B petition  Other requirements still in force

16. H-1B VISA No “benching” Termination of H-1B employee  No grace period (but usually grant new employer petition if filed in “reasonable” amount of time)  Must offer to pay transportation home (recommended to be in writing)  Withdraw H-1B petition or potential for wage claim Job offer to potential H-1B (Make contingent upon obtaining valid work authorization) Dual intent

17. L VISA INTRACOMPANY TRANSFEREE Continuously employed for one of the three years prior to commencement of proposed U.S. employment with a foreign employer that is related to the U.S. employer (a foreign affiliate or subsidiary)  Qualifying company relationship  Doing business in U.S. and abroad

18. L-1A INTRACOMPANY TRANSFEREE EXECUTIVE OR MANAGER  Enter US as executive or manager for branch of the same employer or one of its qualifying organizations  Executive = decisions of wide latitude without much oversight  Managerial-- supervise and control or management an essential function at a high level, without direct supervision  7 year max stay  If seeking to establish a new office, additional requirements and maximum initial stay of one year

19. L-1B INTRACOMPANY TRANSFEREE SPECIALIZED KNOWLEDGE Provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations. Specialized knowledge =  special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or  an advanced level of knowledge or expertise in the organization’s processes and procedures

20. L VISA INTRACOMPANY TRANSFEREE  Blanket petition available  Spouse MAY apply for work authorization  Dual intent

21. TN (NAFTA)  Must be nationals of either Canada or Mexico  Coming to U.S. to work in profession listed on NAFTA schedule  Generally require a Bachelors degree in field—employee must have required credentials  Three year stay, renewable indefinitely  NOT dual intent so may have to consider change of status if pursuing green card

22. WORKSITE ENFORCEMENT  Employer’s Affirmative Duties  Must not “knowingly” hire undocumented workers (illegal aliens) or continue to employ them once employer learns of unauthorized status; and  Verify employment eligibility, through I-9 form, of every employee, regardless of citizenship or immigration status

23. DHS WORKSITE ENFORCEMENT STRATEGY On April 3, 2009, the Department of Homeland Security (DHS) issued a press release…  “[U]pdated worksite enforcement guidance was distributed to Immigration and Customs Enforcement (ICE), which reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by breaking the country's laws and knowingly hiring illegal workers.

24. DHS WORKSITE ENFORCEMENT: Iowa Cases 2008 Postville—Agriprocessors 2011 Roofing company 2012 Construction company 2011 and 2015 Dairy farmers

27. COMPLIANCE RESOURCES AND UPDATES Form I-9 Central Form I-9 Webinar on Demand Common question:  Mistakes/missing forms  http://www.uscis.gov/i-9-central/form-i-9-webinar-demand-part- 12 http://www.uscis.gov/i-9-central/form-i-9-webinar-demand-part- 12  Handbook for Employers

28. COMPLIANCE RESOURCES AND UPDATES E-Verify  Voluntary for most employers  Mandatory for most federal contractors and in some states  New E-Verify Employee Rights Toolkit (10/15/15) at http://www.uscis.gov/e-verify/employees/employee-rights- toolkit http://www.uscis.gov/e-verify/employees/employee-rights- toolkit  E-Verify Record Disposal

29. TAKE AWAYS  Evaluate options for hiring of non-immigrants  Form I-9 Self Audits  Mandatory E-Verify in future?

30. Dawn M. Gibson (319) 896-4004 dgibson@simmonsperrine.com Questions?

31. Disclaimer: This presentation is designed and intended for general information purposes only and is not intended, nor should it be construed or relied on, as legal advice. Please consult your attorney if specific legal information is desired.