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US Corporate & Business Immigration Law Presented to German American Business Association Whittier Law School Costa Mesa, California February 17, 2010.

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Presentation on theme: "US Corporate & Business Immigration Law Presented to German American Business Association Whittier Law School Costa Mesa, California February 17, 2010."— Presentation transcript:

1 US Corporate & Business Immigration Law Presented to German American Business Association Whittier Law School Costa Mesa, California February 17, 2010

2 1 David Hirson, Partner Fragomen, Del Rey, Bernsen & Loewy, LLP Von Karman Ave., 2 nd Floor Irvine, CA Office: Direct: Fax: Rico Fontana, Senior Manager IHR – Global Immigration Lead Fluor Enterprises, Inc

3 2 Topics for Discussion to Include: U.S. Immigration Law, 2009 updates How the economy has and may impact the immigration law and U.S. businesses working with immigrants of all levels The impact on business CIR – Comprehensive Immigration Reform in 2010? Germany Specific Issues - Visa Waiver Program - ESTA - E-1 / 2 Treaty Visas

4 3 About Fragomen Single Focus - Largest firm in the world exclusively dedicated to providing global immigration services - Resources and technology designed specifically for immigration services Scalable - 36 offices in 14 countries, 250 attorneys, 800+ professionals - Strategic network of 100+ in-country co-counsel Partnering - Custom representation tailored to our clients needs - Flexible service model

5 4 United States Fragomen Office France United Kingdom Belgium Germany China Hong Kong Singapore Australia New Zealand India Core Strategic Partner Mexico Costa Rica Venezuela Peru Brazil Argentina Chile Spain South Africa Israel Switzerland Italy Russia South Korea Japan Taiwan Thailand Malaysia Canada Planned Office UAE Global Coverage

6 5 Recognition Corporate Immigration Law Firm of the Year – 2005, 2006, 2007, 2008, 2009 Best Lawyers - Ranked #1 in the United States in Immigration Law Chambers US and Chambers Global Highest possible ranking in immigration category UK Lawyer top ranked Immigration Firm Professional Recognition

7 6 Involved Government Agencies Department of Homeland Security: 1. United States Citizenship and Immigration Services - USCIS (formerly the Immigration & Naturalization Service – INS or BCIS) 2. Immigration & Customs Enforcement – ICE 3. Customs & Border Protection – CBP 4. CIS Ombudsman Department of Labor Department of State (DOS): - U.S. Embassies - U.S. Consulates

8 7 Basic Concepts Immigrants vs. non-immigrants Dual intent Petitions, visas, & status Quotas & chargeability Preservation of family unity Priority workers Preference classification

9 8 Nonimmigrants Coming to the U.S. temporarily Retain residence abroad Dual intent - only for Hs and Ls Alphabet Soup - A-V

10 9 Immigrants Green card holders = permanent residents = immigrants Coming to U.S. permanently Numerically limited - Visa bulletin - Priority date Can become U.S. citizens after years

11 10 Family-Based Permanent Residence Immediate relatives (spouses, minor children & parents of U.S. citizens) Other close family members of citizens or permanent residents, including: - Unmarried sons & daughters of citizens (over age 21) - Married sons & daughters of citizens - Spouses, children & unmarried sons/daughters of permanent resident aliens - Brothers & sisters of citizens

12 11 Employment-Based Permanent Residence: 2 or 3-Step Process Labor certification PERM (where required) - Filed by employer on behalf of foreign national - Processed by U.S. Department of Labor Immigrant preference petition - Filed by employer - Self petitioning possible in limited cases - Processed by USCIS Adjustment of status or consular processing - Filed by the foreign national & family members

13 12 3 Steps to a Green Card 1.Labor certification - PERM –filed by employer on behalf of foreign national employee –processed by U.S. Department of Labor (DOL) –DOL regulated test of the local US job market –involves lay-off assessment (of relevant position/location within the 6 months before filing with the DOL) 2.Immigrant preference petition (I-140) –filed by employer on behalf of foreign national employee –based on approved labor certification (Step 1 above) 3.Adjustment of status (I-485) –filed by the foreign national & family members –based on approved labor certification and I-140 petition (Steps 1 & 2 above) NOTE: Lay-off analysis only relevant in Step 1

14 13 Employment-Based Categories EB-1:Priority workers EB-2:Advance-degree professionals & aliens of exceptional ability* EB-3: Professional, skilled & unskilled workers* Schedule A workers EB-4: Special immigrants EB-5: Employment creation (* labor certification required)

15 14 EB-1: Priority Workers Persons of extraordinary ability (similar to the O-1 nonimmigrant category) Outstanding professors & researchers Multinational executives/managers Labor certification not required

16 15 EB-2: Advanced-Degree Professionals & Persons of Exceptional Ability Job requires advanced degree (Masters & above) or Bachelors degree + 5 years progressive professional experience Labor certification required Persons of exceptional ability in science, art or business (labor certification forms filed w/ I-140 petition) Waiver of labor certification when employment is in the National Interest

17 16 EB-3: Professionals, Skilled Workers, Other Workers Most commonly used, historically highest demand Professionals: position requires bachelors degree or foreign equivalent degree Skilled workers: position requires minimum 2 years experience and/or training Other workers: limited to 10,000 Labor certification required in all cases

18 17 Impact of Termination on Nonimmigrant Visa Status Options available to terminated employees - Depart U.S. - Change of status to another visa classification - Secure position with another U.S. based employer Timing - No grace period in the Regulations - Unlawful presence issues - Withdrawal of petition Particular considerations for H-1B employees - LCA issues - Return transportation Dependents

19 18 Immigration Update I-9 Compliance ICE and DOL audits are on the increase Several criminal prosecutions of employers Administrative fines can be substantial Check on your system of accurately completing and maintaining the I-9 forms in your company Do self audits or have independent audits by counsel routinely AND before any inspection by ICE or DOL Consider outsourcing to an I-9 service organization USCIS through the OMB extended approval of Form I-9 to Aug. 31, 2012 Employers may use the Form I-9 with the revision date of either Aug. 7, 2009 or Feb. 2, 2009

20 19 Immigration Update (cont.) E-Verify On September 8, 2009, DHS began implementing a rule that requires certain federal contractors to enroll in and use the E-Verify system to verify the employment eligibility of new employees, as well as current employees who are assigned to work on a federal contract.

21 20 Immigration Update (cont.) H-1B Audits USCIS Fraud Unit Site Visits Continue Over the past year, employers have continued to experience unannounced site visits by USCIS Office of Fraud Detection and National Security FDNS conducts site inspections to verify the information that employers provide in their immigration petitions. Site visits have focused mostly on H-1B petitions, though inquiries on other types of cases are possible. Some employers have reported receiving multiple site visits, each pertaining to a separate petition and foreign worker.

22 21 The Impact of the Economy on U.S. Immigration I. In A Weakening Economy Fewer jobs – Higher unemployment. November % Lower salaries Higher enforcement Restrictive immigration laws No distinction made between legal and illegal immigration Xenophobia

23 22 The Impact of the Economy on U.S. Immigration II. In A Growing Economy More jobs – Lower unemployment. - 10% in December % in January 2010 More jobs for highly qualified individuals Higher wages and salaries More favorable pro-immigrant legislation Xenophobia continues

24 23 Salary Reductions & Leaves of Absence for H-1B Employees Salary Reduction - Labor Condition Application (LCA) obligations The higher of the prevailing vs. actual wage = required wage Employer must re-file LCA if required wage not met - Filing of H-1B amendment may be required Leave of Absence, Furlough, etc. - Does the leave for absence or furlough result in a reduction in salary? - Cannot bench under LCA rules - Need to update the LCA - If so the H-1B petition must be amended

25 24 Changes in Job Duties and Employing Legal Entity Changes in Job Duties or Job Location - Job Duties If new duties are a material change, the government may need to be notified and petition amended - Job Location – typically only relevant for H-1B employees May require LCA posting and/or I-129 amendment Other Visa Categories - Evaluate whether notice of termination should be provided to government or other program sponsor

26 25 Impact on Foreign Nationals Immigration Status When is the Employee Out of Status? Options available to terminated employees - Depart U.S. - Change of status to another visa classification - Secure position with another U.S. based employer Timing - No grace period in the regulations - Unlawful presence issues - Withdrawal of petition

27 26 How does Layoff affect PERM? If Employer has layoffs: - In the same geographic area; and - In same or similar position; and - Of potentially qualified U.S. worker(s) Then: Employer must wait 6 months after layoff to File new PERM for these locations and positions

28 27 When is I-140 Portable? – I-485 pending 180 days – Same or similar occupation – New position is in same or similar occupational classification – Change in position within same employer or to different employer – Priority date an I-140 approval remains with foreign national employee

29 28 I-485 Portability Miscellaneous Portability points - Geographic area not relevant - Wage should not be sole factor in determining same or similar - Multinational managers or executives can take advantage of portability - Foreign national must have new offer of employment at the time the I-485 is being adjudicated under portability and must have notified USCIS - If I-140 withdrawn prior to I-485 pending 180-days, no longer eligible for I-140 portability - If I-140 withdrawn, denied or revoked after I-485 pending for 180-days, foreign national remains eligible for I-140 portability

30 29 Comprehensive Immigration Reform in 2010? 2007 House approved CIR, failed in Senate Presidential promised CIR, delayed by Health Care The recovering economy will be a positive factor Concerns about Amnesty and Path to Citizenship - Fines - Tax Returns - No Criminal or Immigration Record Possible Points System replacing Preference System Will legal & illegal immigration concepts be unscrambled Politically very sensitive. Xenophobia remains. For 2010 CIS may be enacted. There are so many perceived and actual obstacles delaying the process. The CIR for Americas Security and Prosperity (CIR ASAP) Act of 2009 was introduced on December 15, Details will be found in the separate hand out

31 30 B-1 Business Visitors Persons coming to the U.S. in B-1 visa status must comply with all of the following requirements: - Enter the U.S. for a limited period of time - Intend to depart at the end of the temporary period of stay - Maintain a foreign residence with no intent to abandon the same - Possess financial means adequate to stay in the U.S. without working in the U.S. - Engage solely in legitimate business visitor activities

32 31 B-1 Business Visitors On foreign payroll Activity in U.S. benefits foreign employer - Business meetings, training, & joint development projects Visa Waiver Program - 36 participating countries - 90-day maximum stay - Must obtain electronic pre-approval before departure for U.S. - Ineligible for change of status

33 32 Export Control Transfer of sensitive technologies and the resulting implications for the hiring, visa processing, immigration status and deployment of foreign nationals Develop programs for : - Risk assessment - Preparation and monitoring of license applications - Development of compliance management systems

34 33 F-1 Students Academic studies: elementary through postdoctoral - admitted for duration of status (D/S) Full-time matriculated student at approved school Optional Practical Training: pre- or post-graduation - total = 12 months; part-time during school year, full-time during vacations and after graduation; OPT extension available for some science, technology, engineering, math (STEM) graduates - need employment authorization document (EAD); - School endorsed I-20,issued via Student and Exchange Visitor Information System (SEVIS), a web-based system for generation of Forms DS-2019 and tracking - not tied to particular employer Curricular practical training if part of educational program - Need letter from school - School endorsed I-20 (issued via SEVIS System)

35 34 J-1 Trainees Exchange visitor program Categories include trainees, interns, research scholars, specialists, students Emphasis on reciprocity, cross-cultural activities, and orientation Some Js must return to home country for 2 years after completion of program or seek waiver of this requirement - skills list - government funding - graduate medical education SEVIS applies

36 35 L-1 Intracompany Transferees Intracompany Relationship: - Parent, subsidiary, affiliate, branch or joint venture Prior Employment Abroad: - 1 year within 3 years preceding transfer to U.S. Qualifying Capacity: - Executive, Managerial (L-1A) - Specialized Knowledge (L-1B) Duration: - L-1A = 7 years - L-1B = 5 years

37 36 Specialty Occupation -- Entry level requirement = minimum Bachelor Degree or equivalent 3 for 1 rule -- 3 yrs. experience = 1 yr. of college Labor Condition Application (LCA) certified prior to filing petition Six-year maximum stay (can extend beyond 6 years under certain circumstances - AC-21) 65,000 annual ceiling, of which 6,800 are set aside for citizens of Chile and Singapore 20,000 additional visas allocated to holders of advanced degrees from U.S. universities Reasonable costs of return transportation for dismissed employee H-1B Category: USCIS Provisions

38 37 Labor Condition Application Filed with U.S. Department of Labor Attests to four basic conditions - Wages - Working conditions - No strike or lockout - Notice Wage offered must be the higher of Prevailing Wage or Actual Wage paid to similarly situated employees H-1B dependent vs. nondependent employers Public access file

39 38 Es, Os & Ps E-1Treaty Trader E-2Treaty Investor O-1Persons of extraordinary ability PInternationally recognized athletes or entertainment groups

40 39 PERM Labor Certification Process Program Electronic Review Management One standardized system Electronic application process Strict advertising, recruitment and posting requirements Must obtain prevailing wage determination before filing

41 40 Key Aspects of PERM (contd) Processing times vary widely; cases selected for audit experience lengthier processing time Some changes to eligibility standards for foreign nationals Strict recordkeeping and documentation requirements Applications subject to DOL audits based on predetermined factors or at random

42 41 Adjustment of Status Can file concurrently with preference petition if priority date is current Immigrant visa must be available for preference category and foreign nationals country of birth/ chargeability Filed at USCIS Service Center - Nebraska or Texas

43 42 Consular Processing Similar requirements as for adjustment of status Some additional documentation necessary (police clearances, military service certificates) Application processed through U.S. Embassy/Consulate abroad Mandatory for certain foreign nationals

44 43 Changes of Address USCIS notification required within 10 days of change for principal and all family members. File electronically or in hard copy on Form AR-11. AR-11 will not update addresses on pending filings; must separately notify appropriate USCIS adjudicating office of change.

45 44 APPLICATION MATERIALS Passport must be valid for six months beyond date of intended stay in U.S. DS-160 –online nonimmigrant visa application will be mandatory from April 1, Prior Forms, DS- 156, DS-157 etc. are being replaced by Form DS Photo Fees - $131 + applicable reciprocity fees increased fees imminent (see next slide for proposed new fees) F/M/J SEVIS visa fee - $200 for F-1s, $180 for J-1s Same documents for family members Original Notice of Approval, Form I-797 (if applicable). A copy should be acceptable.

46 45 Proposed New Fees to Apply for a Visa in 2010 Under the proposed rule, applicants for all visas that are not petition-based, including B1/B2 tourist and business visitor visas and all student and exchange- visitor visas, would pay a fee of $140. Applicants for petition-based visas would pay an application fee of $150. These categories include: H, L, O, P, Q and R visas. H visa for temporary workers and trainees The application fee for K visas for fiancé(e)s of U.S. citizens would be $350. The fee for E visas for treaty-traders and treaty- investors would be $390.

47 46 ENHANCED ENFORCEMENT - DHS has authority to administer and enforce visa-related law - Obtaining a visa is a privilege, not a right - General delays and unpredictability - Embassy security and shutdowns - Heightened scrutiny of applicants - New petition approval verification requirements (PIMS) - Travel advisories for U.S. citizens - Review of Visa Waiver countries - 2.html

48 47 Visa Waiver Program Visa-free entry and stays of up to 90 days Available to nationals of 36 countries: - Andorra, Australia, Austria, Belgium, Brunei, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Liechtenstein, Latvia, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom Passport requirements: - E-passport – if passport issued on or after 10/26/06 - Digital photograph – if passport issued btw 10/26/05 and 10/25/06 - Machine-readable passport – if issued btw 10/26/04 and 10/25/05 ESTA – Electronic System for Travel Authorization: new online advance authorization system for VWP travelers. Became mandatory on 01/12/2009.

49 48 ENTRY INTO THE U.S. US VISIT - Entry check in system Photographing and fingerprinting upon entry - Applies to all NIV holders and Visa Waiver Program travelers - Effective 1/19/2009, applies to all U.S. LPRs, most Canadian citizens (except Canadian visitors for business/tourism, transiting travelers, unless inadmissibility waiver required) - Exit procedures currently suspended NSEERS (special registration) - For certain nonimmigrants - Requires fingerprinting, photographing & secondary inspection; follow-up registration at DHS discretion - Departure through designated ports only - Change of address/employment/school on Form AR-11SR -

50 49 Form I-94 Form I-94 Arrival/Departure Record Card (I-94 card) - Date of issuance - Status classification - Date of expiration of legal status - Admission number

51 50 EXCEPTIONS FOR CANADIANS Passport now required for air entries from within or outside of Western Hemisphere. Evidence of citizenship and identity required for land/sea entries from within WH. No visa required (except for A, E & G visas) Inspected and issued I-94 (except visitors) at airport or border Eligible for TN status May process L-1 at border

52 51 MAXIMUM STAY H-1B - 6 years w/ possible addl. Extensions L-1A - 7 years L-1B - 5 years O - no maximum F (EAD) -12 months; 12 month post- completion OPT extension available for certain science, technology, engineering & math graduates J - 18 months for trainees; 12 months forinterns TN - no maximum but 3 year increments E - no maximum

53 52 FOR MORE INFORMATION United States Citizenship and Immigration Services (USCIS) - Department of Homeland Security - U.S. Embassy and Consulate Information (DOS) - Department of Labor (DOL) - Social Security Administration (SSA) -

54 IRCA Legislation Had Shortcomings Creation of I-9 was quid pro quo for amnesty Millions legalized if here from But borders never got sealed Shortage of unskilled workers developed False documents were easily available

55 54 ICE Machine Gearing Up I CE now being told to target employers Quid pro quo for new amnesty Some industries will be short-term casualties ICE targeting wholesale violators 650 employers notified in July ,000 in December 2009

56 55 Good Faith Defense Do the documents appear genuine? Constructive notice? Obvious fake docs, SSA mis-match letters, other conduct ICE Knows I-9 Rules are Complex ICE Looking for Good Faith Compliance

57 56 Penalties Fines based on conduct $110 to $16,000 per occurrence Criminal penalties for pattern and practice Up to 5 years in prison Debarment as federal contractor

58 57 I-9 Self Audit Proactive approach best I-9 self audit of entire company Hire counsel to assist Terminate unauthorized workers Correct I-9s that were done wrong

59 58 E-Verify I-9 Verification On line system to verify I-9 documents Partnership between DHS and SSA US CIS administers the program ICE looks favorably on use of E-Verify Queries DHS and SSA Databases

60 59 E-Verify Statistics 96% verified to work within minutes 4% receive tentative non confirmations (TNC) requiring follow up TNC – 3% to SSA, 1% to CIS Final Non Confirmation: 3.5% System much more accurate now

61 60 E-Verify Fed Contractors: Effective September 8, 2009 Congress may moot litigation $100K per year in biz with fed govt Subcontracts -- $3k per year Also required for STEM extensions Many states now require E-Verify

62 61 Common Work Authorization Documents Drivers License and SSN Restricted SSN never valid for work U.S. Passport or Green Card U.S. Birth Cert & Photo ID Work Permit Foreign Passport and Certain I-94s

63 62 E-Verify Registration Register on-line with US CIS No fee Memorandum of Understanding (MOU) Designate corporate administrator 3 rd party agent can submit data

64 63 E-Verify New Hires Only at this Time Must Obtain SSN from New Hire Dont need SS Card For I-9 List B doc, Need Photo ID Not Considered Discrimination Complying with MOU

65 64 E-Verify Photo Screening Tool Photo verification capability Help detect identity theft Checks photos, CIS & DOS databases Drivers Licenses Photos not in Database

66 65 Problems with E-Verify Doesnt detect stolen Identity docs TNC 8 Day Drill Can Be Difficult States Not Sharing Data with DHS Litigation Congress indecisive re future of the program

67 66 Future of E-Verify Administration Supports E-Verify Data continually improving Privacy concerns outweighed by protection of US Workers Technology will lead debate towards greater use Possibly a national ID card with fingerprints and photo

68 September 2008 Immigration to the USA through Investment in EB-5 Green Card Program

69 68 LEGAL REQUIREMENTS Investment of US$1,000,000 - US$500,000, if Rural Area - Metropolitan Statistical Areas – MSA cannot be rural High Unemployment Area (150% of National Average) - Creation of 10 Jobs US Workers

70 69 LEGAL REQUIREMENTS, Cont Include: - Principal investor - Investors Spouse - Investors Children unmarried and under 21-year old (At Time of Admission into the US after Consular processing or Final Interview where adjustment of status approved in the US) - Spouse and older children can work - Children Can Go to Public or Private Schools

71 70 LEGAL REQUIREMENTS, Cont After admission some family members may wish to return to home country Permit can be obtained to lawfully remain out of the USA for up to 2 years after commencement of Conditional Permanent Residence Formalities MUST be carefully followed and application and biometrics completed while IN the US. The Reentry Permits may be renewed

72 71 LEGAL REQUIREMENTS, Cont Steps – - Filing of form I-526 Petition at USCIS (4 to 6 months; average 5 months) - Approved I-526 Petition Processed at National Visa Center (NVC) (2 - 3 Months) - NVC Sends Petition to US Consulate for Final Interview (2 – 9 Months) - Timing will vary for US consuls around the world

73 72 LEGAL REQUIREMENTS, Cont Steps, Cont - If the Investor is in the US the case may be processed as an Adjustment of Status (AOS) in the US - Work authorization (EAD) and if qualified, travel documents (Advanced Parole) will be issued to the investor and her or his qualifying family in about 90 days after filing the AOS (Form I- 485) - The processing time of the AOS will take about 9 months or more from date of filing.

74 73 LEGAL REQUIREMENTS, Cont 2-Year Conditional Residence (CR) - Continued Investment and Employment Creation Submit Application for Removal of Condition 90 days before 2nd year anniversary and not later than the 2 nd anniversary of the CR - Divorce from spouse or marriage or aging out of children after CR will not stop removal if all else is OK - Estimated processing time 6 months or more

75 74 LEGAL REQUIREMENTS, Cont Eligible to Apply for US Citizenship after 5 years from date of Conditional Permanent Residence Conditional Permanent Resident and Permanent Resident Expectations: - Reside in the US (See reentry permits) - Pay taxes as a US Citizen - Pass the English and civics tests

76 75 LEGAL REQUIREMENTS, Cont Most Common Issues - Lawful Source of Funds Trace of Investment Money – Every dollar must be legally obtained and accountable May be loan or gift from family, friends or company. - Origination of loan or gift funds MUST be proved to be from a lawful source Bank loans – not secured by the investment do qualify

77 76 LEGAL REQUIREMENTS, Cont Most Common Issues - Ability to maintain business and active management - Ability to prove 10 full-time legal employees - Investment has to be at risk - No guarantees are given or are permitted by law

78 77 LEGAL REQUIREMENTS, Cont Regional Center - Authorized Investment Vehicle - Can Count Direct and Indirect Employment Creation - Must still prove every case that jobs will be created, directly or indirectly - Approval is not automatic - Investment is NOT US Government Approved - No need to be actively working in the business - Investor is a Limited Partner

79 78 ADDITIONAL REQUIREMENTS MUST get independent business and tax advice Must conduct own due diligence Fragomen, Del Rey, Bernsen & Loewy, LLP advises only on immigration law and practice issues and will file the cases By law investment is at risk with NO guarantees For an updated list of all registered Regional Centers please see the USCIS website at: 5e66f f6d1a/?vgnextoid=d765ee0f4c014210VgnVCM ca60aRCRD&vgnextchannel=facb83453d4a3210VgnVC M100000b92ca60aRCRD

80 79 LEGAL REQUIREMENTS Please note: All times for processing referred to in this presentation are estimates based on current processing time as published by the USCIS or as experienced No timing can be guaranteed nor can an approval of a case be guaranteed by anyone. The process is in the sole and complete authority of the US Government, Department of Homeland Security, USCIS and the Consul at the consular post or embassy which falls under the US State Department (DOS).

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