|
COVER ARTICLE Going global? When qualified foreign nationals seek employment in the United States, what do employers need to know about the many types of visas? Find out here. U.S. employers often seek to fill professional positions, but encounter difficulty finding qualified candidates. Many receive résumés from qualified foreign nationals who seek employment but must be sponsored by the employer in order to work in the U.S. The employer, however, may be unfamiliar with the immigration process and unclear of the options available when hiring foreign nationals. There are several visa categories available to employers who wish to hire a foreign national. The most common type of visa used by employers is the H-1B “specialty occupation” visa. The H-1B “Specialty Occupation” Visa U.S. employers can recruit and hire foreign workers with appropriate professional credentials to perform services in a “specialty occupation,[1]” such as pharmacists, engineers, software engineers/programmers, and financial analysts, to name a few. The H-1B “specialty occupation” is an occupation requiring at least a bachelor’s degree or its equivalent for entry level work.[2] The H-1B program provides an expanded pool of professional workers from which to recruit, including professionals working outside the U.S., working inside the U.S., as well as those graduating from U.S. or foreign universities.[3] What are the restrictions on obtaining an H-1B visa? But all is not lost. The following are exempt from the quota: (1) new petitions by current H-1B holders to transfer employers or for concurrent employment; (2) petitions to extend current H-1B status; (3) H-1B physicians who have received a Conrad 30 waiver of the J-1 two year residency requirement; (4) H-1B petitions for positions at higher education institutions (and their related or affiliated nonprofit entities); and (5) H-1B positions with nonprofit research organizations or governmental research organizations.[5] Under the transfer exemption mentioned above, H-1B workers may “transfer” to a new employer as soon as a new petition has been filed, whereas workers seeking H-1B status for a first employer must wait until the petition has been approved to begin work. (To transfer, an H-1B worker must be in lawful status at the time of filing the petition and must not have engaged in any unauthorized employment since the last lawful admission. Therefore, it is important that transferring employees not begin work for the new employer until the petition is filed.[6]) H-1B visas are valid for an initial period of three years. One three-year extension is available for a total stay of six years. Changing employers does not restart the six-year clock. Additional extensions are available, however, if the employee is pursuing permanent resident (“green card”) status and has either (1) filed a green card application or (2) filed, more than one year previously, a labor certification application or a green card petition.[7] Once an employee reaches the six-year maximum, he or she is required to depart the United States unless an exception is available. These employees who “max out” become eligible for H-1B status again after a one-year absence.[8] The spouse and minor dependents of H-1B workers may enter the U.S. on H-4 visas but cannot work.[9] Are there alternatives to the H-1B visa? Yes. These are explored below. The TN offers many advantages over other categories, particularly for Canadians. Canadians can process their initial petition at a U.S. border post or USCIS pre-flight inspection station at designated airports in Canada. In contrast, Mexicans must obtain a TN visa at a consulate abroad.[11] TN workers are admitted for one-year, renewable in one-year increments with no maximum number of renewals.[12] Although there is no limitation on the number of renewals available to TN workers, each renewal faces increased scrutiny. Ultimately, a renewal may be denied if USCIS determines that an applicant intends to reside in the U.S. indefinitely. The TN category is of particular interest to health care facilities recruiting Canadian or Mexican registered nurses or other health care workers. Though many RNs do not qualify for H-1B status, they do qualify for the TN work permit. The TN professional must possess the appropriate license, if required by law, to perform the duties of the profession in the state where he or she will be employed. Individuals who will be self-employed (or employed by a corporation that they own) in the United States cannot obtain TN status.[13] The TN category also provides an advantage over the H-1B category in that it avoids prevailing wage and labor condition application procedures. The L “lntra-Company” Visa To qualify for an L visa, an employee must have worked abroad for a foreign employer for at least one continuous year during the past three years as a full-time executive, manager or specialized knowledge worker.[15] (Presence in the U.S. neither interrupts nor satisfies the one-year employment requirement. Example: A manager who has worked in Sweden for 10 months is then sent to the U.S. on a two-month business trip for his Swedish employer. Two months after leaving the U.S., he will become eligible to apply for an L-1 visa.) The foreign employer must be the parent, subsidiary, or affiliate of the U.S. company to which the employee will be transferred. Executives and managers receive L-1A visas, whereas specialized knowledge workers receive L-1B visas. The initial entry period for L visas is three years (except for someone coming to open a new office, whose initial entry is for one year). Thereafter, extensions are granted in two-year increments, with L-1A employees eligible for a total stay of seven years. The maximum stay for L-1B workers is five years.[16] (These maximums do not apply if continuous U.S. residence is not maintained and the employment is instead seasonal, intermittent, or totals six months or less per year. Part-time L employees who reside abroad and commute to the U.S. are likewise exempt.)[17] For large employers, a blanket company approval for L visas is often an option and saves a great deal of time, as ordinary USCIS processing and approval procedures are skipped altogether. The E “Treaty” Visa But unlike the H, L and other employment-based visas, E visas are available only to the nationals of countries having treaties with the United States.[18] The E visa is therefore often utilized by U.S. companies that are owned by the nationals of a treaty country (“treaty nationals”) in order to bring aliens of that same nationality to positions for the U.S. company. (For example, only French national employees can obtain E visas to work for a U.S. company that is French-owned.) E visas are available to the executives, supervisors, and “essential skills” employees of businesses having either (1) significant investment in the U.S. or (2) substantial international trade principally between the United States and the treaty country.[19] E visa duration varies from one country to another, though most countries receive visas for a five-year period. Unlike H and L visas, E visas in theory can be renewed an unlimited number of times. Consulates are reluctant, however, to issue repeat visas to essential skills employees. E visa holders are admitted to the U.S. for two years per visit, regardless of the length of remaining validity of their visa.[20] After entering the U.S., they can file an application in the U.S. to extend their stay. However, an E visa holder who travels outside the U.S. at least once every two years will not need to do so. Spouses and minor children qualify for the E visa through the principal applicant and can be of any nationality.[21] Under new law, E visa spouses can obtain work authorization.[22] No stated limit exists regarding the number of times a treaty national may renew E visa status. This is a significant advantage over the other nonimmigrant working visa categories. J-1 Exchange Visitors Trainees must be seeking to enhance their skills in one of the following fields:
Depending upon the purpose of the visit, the maximum period of stay in J-1 status ranges from 12 to 36 months, with 18 months being the maximum for trainees.[25] Given the exhaustion of the H-1B visa quota and the resulting rush of employers to qualify job candidates as “trainees,” the J visa issuing agencies have become exceedingly strict in processing J-1 visa applications, rendering the J visa alternative a truly second-tier option for employers. The Aussie Connection: The E-3 “Specialty Occupation” Visa A limit of 10,500 E-3 visas may be issued each fiscal year, with the spouse and children of an E-3 principal not counting against the numerical cap.[28] Unlike the H-1B, an E-3 visa is valid two years.[29] Furthermore, there is no set maximum number of times that an E-3 visa can be renewed. And, unlike the spouses of H-1B workers, the spouses of E-3 visa holders are entitled to obtain work authorization.[30] E-3 visa applicants need not show a residence in their home country to which they plan to return.[31] What expenses will an employer hiring a
foreign national incur? Are these recoverable if the employee terminates? H-1B visa costs have skyrocketed in recent years. For example, in 1996, the government filing fee was $70. Now, USCIS filing fees for an H-1B petition are $3,190, if you choose to include the $1,000 premium processing option. Legal fees are incurred in addition to these filing fees. In response, some employers ask that the H-1B employee reimburse the company if the employee leaves the company before a certain period of time has passed. Is this legal? That depends. All deductions from an H-1B worker’s pay fall into three categories: prohibited, authorized, or unauthorized.[32] Prohibited deductions may not be taken from the employee’s pay, regardless of the effect they would have on the required wage rate.[33] Conversely, authorized deductions can be taken, even if they lower the employee’s rate of pay below the required wage rate.[34] Unauthorized deductions, oddly, can also be taken from an employee’s wage, but only to the extent that, after those deductions, the wage is at least the required amount listed on the Labor Condition Application, a prerequisite to the filing of an H-1B petition.[35] In other words, unauthorized deductions cannot push the employee’s wage below the required wage. Prohibited Deductions Authorized Deductions
Given these guidelines, what deductions are authorized in the H-1B visa context? Fees incurred for educational evaluations and for document translations arguably qualify as authorized deductions. The employee is benefiting from the evaluation and will be able to use it in the future in his/her private capacity if denied. The employee must, of course, be able to acquire a copy of the evaluation or translation so that the future benefit upon which the deduction is promised is real. Attorney’s fees associated with obtaining H-4 status for family members of the H-1B employee may also qualify as an authorized deduction since the employee primarily benefits from the fees. Likewise, attorney fees associated with visa issuance, assuming that international travel is not a requirement for the position, could be properly considered as authorized deductions. The attorney must break down the specifics of how much is being charged for each element of the H-1B process in order to allow the employer to categorize those expenses correctly. As for the $1,000 USCIS Premium Processing Fee, it is important to assess which party requests, and benefits most from, premium processing. If the employee has decided to utilize premium processing for his/her own personal benefit,[38] then the employer may be reimbursed by the employee in accordance with the DOL eligibility requirements for authorized deductions. If, however, the employer is the party desiring premium processing, then the deduction is unauthorized and, therefore, permissible only if it does not push the wage below the required wage. Unauthorized Deductions As for the $500 Fraud Fee implemented in March 2005, it is either unauthorized or prohibited. The enabling language for the Fraud Fee states that “the Secretary of Homeland Security shall impose a fraud prevention and detection fee on an employer filing a petition.”[39] Almost identical enabling language is used as to the Training Fee, which is a prohibited deduction.[40] This suggests that the prohibition as to the Training Fee also applies to the Fraud Fee. However, 20 C.F.R. 655 explicitly states that the employee cannot pay the Training Fee, whereas no such statement appears regarding the Fraud Fee. As such, a Fraud Fee deduction is not expressly prohibited. If an employer chooses to seek reimbursement of the Fraud Fee, then, at best, the deduction must meet the DOL requirements for unauthorized deductions.[41] Obviously, before any payments are made by the employee or any deductions taken from his/her pay to reimburse the employer, an employer must determine whether the deduction is prohibited and, if not, whether it is authorized or unauthorized. Appropriate steps should then be taken to ensure that the DOL requirements are met. Early departure by an H-1B employee is not uncommon, particularly when the economy is strong and competing job offers are plentiful. Understandably, employers who incur substantial expenses in obtaining H-1B approval for an employee often wish to recover these expenses if the employee leaves. However, even if the foregoing tests can be satisfied, federal regulations add another hurdle in the H-1B context. Specifically, employers cannot recover the funds spent to obtain an H-1B visa if such recovery constitutes a penalty under applicable state law.[42] What exposure does an employer have when hiring a foreign national? The “Return Transporation” Obligation The company’s return transportation obligation is only to the H-1B employee, not to his or her spouse, children, or physical possessions. Furthermore, the company has no obligation to ensure that the terminated H-1B employee actually leaves the United States. It is critical for the employer to document compliance with the return transportation obligation, as demonstrated by the recent Amtel decision discussed below. The “Bona Fide Termination” Obligation There is no USCIS sanction for failing to make timely notification of an H-1B worker’s termination. However, USDOL regulations that prevent the “benching” of H-1B workers give teeth to the USCIS notice provisions by stating that H-1B employees who are in nonproductive status or otherwise temporarily laid off “due to the decision of the employer” must continue to receive their normal wages unless and until a “bona fide termination” occurs.[45] The DOL, in turn, requires that, in order for a bona fide termination of an H-1B employee to occur, the USCIS notice and return transportation obligations must be satisfied. The Amtel decision discussed below demonstrates the one-two punch delivered by this regulatory combination. Employers should therefore maintain careful records of an H-1B employee’s termination in order to meet any USDOL challenges as to when an H-1B employee was indeed terminated. As a recent decision illustrates, an employer who does not properly terminate an H-1B employee may be held liable for back pay. In Amtel Group of Florida v. Yongmahapakorn, ARB No. 04-087, ALJ No. 2004-LCA-006, (ARB September 29, 2006), the USDOL Administrative Review Board ruled that the employer had not effected a bona fide termination of its H-1B employee because there was no evidence that Amtel had notified the USCIS of the termination, as required by law, and no evidence that Amtel had provided the employee with payment for her transportation home. As a result, Amtel was ordered to pay the wage until the expiration of the employee’s authorized period of stay for H-1B employment. (Ironically, since a bona fide termination had not occurred, the employer was not required by the review board to pay the transportation costs for the H-1B employee.) Conclusion • • • Notes
• • • Dan E. White leads the practice at The Business Visa Group. Since 1986, his law practice has focused exclusively on business immigration matters, consisting of business and professional visas, labor certifications, immigrant visas, consular representation and citizenship for foreign executives, managers and professionals. He graduated from Vanderbilt Law School in 1981, with an undergraduate degree from Vanderbilt in 1978. White is admitted to practice law in Tennessee, Georgia and California. Tennessee Bar Journal
|