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Immigration — Colorado

Immigration law in the United States has risen to the forefront of political and policy debate once again. Calls for comprehensive immigration reform are being heard across the nation. As a result of so many calls for increased immigration enforcement, government scrutiny of employment-based applications for temporary work visas and permanent residence has tightened and will likely continue to tighten. However, as businesses continue to compete globally and require increasingly highly skilled workers, employers may be looking to hire employees from outside of the United States. Both employers and foreign national employees are faced with unprecedented challenges in securing appropriate visas, complying with U.S. immigration laws, and maintaining lawful immigration status. Businesses must constantly examine their immigration policies and procedures to ensure compliance with changing immigration laws to minimize liability.

What to include in an immigration policy

When immigration sponsorship arises relatively infrequently, an unplanned process can be used, because it allows the company flexibility to respond to particular business needs. However, for businesses that frequently sponsor foreign employees to work in the United States, a more formal immigration sponsorship policy could serve the organization better as it deals with the complex rules related to sponsoring foreign workers by encouraging compliance with immigration laws and ensuring that immigration sponsorship is made on an impartial basis.

A corporate immigration policy should provide a clear and concise statement that compliance with immigration law is essential. In formalizing a corporate immigration policy, it should be clear who will make decisions about which employees receive sponsorship ­– for instance, the human resources department or business unit. It should address all of the following:

  • how information is gathered from new hires
  • how it will be communicated to the employer
  • how case strategy will be decided
  • how paperwork will circulate between the employer and outside counsel.

The policy should also address the selection of, and communication protocol with, outside counsel, managing and tracking expiration dates, which costs the company will or will not cover and managing and tracking required documentation.

Once the policy is formalized, it must consistently be communicated and applied to employees, including the qualifications for sponsorship. The successful policy will help the company strategically hire and retain well-qualified foreign employees while maintaining a corporate culture of compliance with the law.

Agencies responsible for the administration of immigration law

The U.S. Department of Homeland Security (DHS) was formed from 22 federal agencies, including the Immigration and Naturalization Service (INS). The three primary immigration agencies within DHS include:

  1. U.S. Citizenship and Immigration Service (USCIS) - responsible for providing immigration-related services and benefits, including adjudication of employment based non-immigrant petitions filed by the employer.
  1. Immigration and Customs Enforcement (ICE) - the principal investigative and enforcement arm of DHS, responsible for enforcing federal immigration and customs laws, as well as the removal of unauthorized aliens present in the United States.
  1. U.S. Customs and Border Protection (CBP) - charged with protecting U.S. borders, and conducts the inspection and admission of foreign nationals into the United States and the enforcement of customs regulations at the various ports of entry (for instance, airports, land borders, etc.).

Other executive departments also involved with the immigration process include the U.S. Department of State (DOS), which handles visa issuance abroad and security checks at overseas embassies and consulates, and the U.S. Department of Labor (DOL), which is responsible for regulation of alien labor and protection of U.S. workers. In some cases, the DOL is assisted by state government agencies such as state departments of labor or state workforce agencies (SWAs).

Depending on the type of visa or benefit sought, businesses and foreign national employees may need to interact with more than one of these agencies. For instance, an employer must obtain approval from USCIS by filing a petition with an appropriate USCIS service center. Once the petition is approved by USCIS, the foreign national must apply for a visa at a U.S. embassy or consulate overseas, thereby dealing with the DOS. Upon issuance of the visa, the foreign national must seek admission, which will be cleared by a CBP officer at a port of entry.

Non-immigrant temporary visas

Immigration sponsorship of a foreign national employee by an employer often involves both non-immigrant visa sponsorship (the temporary worker visa) and/or immigrant visa sponsorship (known as the “green card” or lawful permanent residence). A non-immigrant visa permits a foreign national to enter the United States for a specific period of time for a specific purpose. Employment-based, non-immigrant visas are employer specific and, in most instances, job and work location specific. Some of the most common non-immigrant categories for businesses are B-1, H-1B, H-2B, H-3, L-1, O-1 and TN. There are several other non-immigrant visa categories that may be pertinent; thus, consultation with immigration counsel is suggested to determine the most appropriate visa category and strategize on the visa petitioning process. Each of these non-immigrant categories has specific requirements for obtaining approval, generally from the USCIS Service Center, by filing a petition.

Note: USCIS accepts electronically reproduced original signatures in lieu of “wet” signatures on all benefit forms and documents.

Obtaining petition approval

Once an employer decides to sponsor a foreign national for a non-immigrant visa, the employer must file a petition with the USCIS. The employer files the petition on behalf of the prospective employee. The process will vary depending on whether the foreign national is already in the United States or outside the United States. If the foreign national is already in the United States and in a valid non-immigrant visa status, the employer can petition USCIS to extend status, to change employers or jobs, or to change to another status. If a foreign national is outside of the United States, the employer must generally first file and obtain approval of a petition by USCIS. Exceptions include the TN for Canadian citizens, which may be obtained directly at the port of entry, as well as B, E, and blanket L visa processing, which can originate at a U.S. embassy or consulate overseas. Once the employer’s petition is approved, the foreign national may apply for a visa and seek admission to the United States.

Upon admission, the foreign national will be issued an I-94 Record of Arrival and Departure document. This document governs the foreign national’s authorized period of stay while in the United States. If the foreign national remains in the United States beyond the expiration date shown on Form I-94, without filing an extension or change of status petition, the foreign national’s status becomes unlawful and unlawful presence may begin to accrue. Depending on the length, unlawful presence in the United States can carry serious immigration consequences including triggering a three- or 10-year bar to readmission. It is therefore imperative the employers and their foreign national employees carefully track the period of admission in the United States and any expiration dates indicated on I-94s. If there are questions regarding the validity of a foreign national employee’s status or if an I-94 has expired, an immigration attorney should be consulted immediately to determine any available options.

B-1 visa (business visitor)

The most commonly used of all visa types is the B visitor visa (10.3 million B-type visas and 1.1 million B1/B2 combination crossing cards were issued in FY2016). The B-1 visa is available to individuals temporarily entering the U.S. for business. The B-2 visa is generally for pleasure or tourism purposes. An individual entering the United States on a B-1 visa may attend business meetings, seminars and training, negotiate contracts, solicit orders for goods manufactured outside the United States, consult and hold meetings with professional colleagues, train professional colleagues, and seek investment or employment opportunities within the United States. Often an individual overseas will seek to enter the United States on behalf of their foreign employer. That individual must continue to be employed by the foreign business, receive payment from a U.S. source (except reimbursement for certain incidental expenses), and must not engage in local employment.

The application for the B-1 visa is made directly at the U.S. embassy or consulate in the home country of the individual seeking to enter the United States. The individual should be prepared to document clearly the purpose of the visit by providing a letter of invitation from a business in the United States, or other sufficient documentation showing the permissible purpose of the visit. The B-1 visa process does not require a petition approval from the USCIS. The individual must be prepared to prove intent to return to his/her home country and an ability to support himself/herself while in the United States. Because Canadians are visa exempt, they do not need to apply for a B-1 visa; instead, Canadians may present the letter of invitation or other appropriate documentation to a CBP officer at the port of entry to gain admission as a business visitor.

Once issued, B-1 visas are multiple entry visas that may be valid for up to 10 years. This means that once the foreign national has the B-1 visa, he/she may repeatedly use the visa during the validity period to apply for admission into the United States for permissible business visit purposes. The admission period is generally six months, although the CBP has the discretion to reduce admission periods. Once in the United States, for good cause, it is possible to request an extension of stay for up to an additional six months.

Increasingly, the DOS and CBP are applying scrutiny to those applying for and using the B-1 visa, suspecting attempted circumvention of limits on other visa categories. Therefore, when applying for the B-1 visa or B-1 admission to enter the United States, the foreign national must be ready to explain the purpose of the trip and the necessary duration required to complete the visit. Documentation of ties to his/her home country, such as proof of a job abroad, proof of income or assets abroad, and a clear intent to return home, as well as a letter of invitation setting out a specific itinerary and a return-trip ticket should be available.

Visa waiver program

The visa waiver program (VWP) allows individuals from certain designated countries to enter the United States for tourism or business for up to 90 days without first obtaining a visa. Currently 37 countries participate in the VWP with the United States. The restrictions that apply to the B-1 category equally apply to VWP entrants. Moreover, VWP entrants are not permitted to extend their period of stay while in the United States or to change non-immigrant status. VWP entrants must depart the United States within 90 days of arrival. To enter the United States using VWP, the foreign national must:

  • complete his or her online application in the Electronic System for Travel Authorization (ESTA) before travelling.

ESTA is an automated system that assists in determining a foreign national’s eligibility to travel to the United States using VWP. As with the B-1 visa, VWP entrants must be prepared to explain the permissible purpose of their visit and provide proof of strong ties to their home country.

H-1B visa (specialty occupation)

The H-1B program applies to employers seeking to hire nonimmigrant aliens as workers in specialty occupations or as fashion models of distinguished merit and ability. The H-1B visa classification permits a foreign national to work in the United States for a temporary period in a “specialty occupation.” A person may hold H1B status for a maximum of six years, and it may be issued in increments of up to three years by the USCIS. An employee may receive extensions of H1B status beyond six years in certain circumstances if the individual is in the process of applying for employment-based permanent residence. A specialty occupation is one that requires:

  • theoretical and practical application of a body of highly specialized knowledge
  • 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.

There are numerous occupations that potentially qualify as specialty occupations. The employer must prove – through objective evidence – that the job offered falls within the statutory and regulatory definitions set forth. Typical occupations qualifying for H1B visa status include professions, which are defined by INA §101(a)(32) to include architects, engineers, lawyers, physicians, surgeons and teachers in elementary or secondary schools, colleges, academies or seminaries. H-1B visas are employer and job specific.

H1B visas are numerically limited, with a total of 85,000 visas available each fiscal year (20,000 of these visas are restricted to individuals who have received master’s degrees or higher from U.S colleges or universities). This limitation is referred to as the H1B cap. When the demand for high-skilled workers exceeds the annual cap for H-1B visas, USCIS then uses a random selection process to choose from the pool of applications received. This is often called the H-1B “lottery.” USCIS first conducts the lottery for the 20,000 individuals who hold a U.S. master’s degree or higher; those individuals who are not selected are put back into the pool for the 65,000. This means that individuals that enter the lottery with a U.S. master’s degree or higher have two chances to be selected at the H-1B annual lottery.

The H-1B1 (Chile and Singapore) program allows employers to temporarily employ foreign workers from Chile and Singapore in the United States on a nonimmigrant basis in specialty occupations. Current laws limit the annual number of qualifying foreign workers who may be issued an H-1B1 visa to 6,800 with 1,400 from Chile and 5,400 from Singapore.

Before the employer can file a petition with USCIS, the employer must attest on a labor condition application (LCA), certified by the U.S. Department of Labor (DOL), that employment of the H-1B worker will not adversely affect the working conditions and wages of similarly employed U.S. workers. Before filing the LCA with DOL, the employer must provide notice to U.S. workers that an LCA is being filed through electronic or physical postings for 10 days at the intended worksite(s). This gives U.S. workers notice that the employer intends to hire an H-1B worker and serves as an additional measure to protect current U.S. employees. This requirement, which is commonly referred to as the “notice or posting” requirement, informs U.S. workers of the terms of the employment of H-1B workers as specified on the LCA. It also informs U.S. workers of their right to examine certain documents and their ability to file complaints if they believe that violations have occurred. Affected workers are those at the same place of employment and in the same occupational classification in which the H-1B workers will be or are employed. Affected workers need not be employed by the H-1B petitioner to qualify as such: The H-1B petitioner’s notification responsibilities extend to all affected employees, regardless of whether they are employed by the H-1B petitioner or by a third-party company.

Employers must submit an LCA to the DOL electronically through the FLAG system attesting to compliance with the requirements of H-1B or H-1B1. FLAG is a cloud-based portal designed to replace the Office of the Foreign Labor Certification’s (OFLC) previous iCERT System and serves as the new application filing and case management solution for all foreign labor certification programs, including LCA, CW-1, H-2A, H-2B, PERM applications and their Prevailing Wage. Employers are able to prepare H-1B and H-1B1 using the Form ETA-9035E, Labor Condition Application for Nonimmigrant Workers in the FLAG system.

LCAs must not be submitted more than six months before the beginning date of the period of employment. The two exceptions to electronic filing are employers with physical disabilities or those who lack Internet access and cannot electronically file the Form ETA-9035E. An employer must petition the administrator of OFLC for prior special permission to file an LCA by mail on the Form ETA-9035. After the employer’s H-1B petition is approved by USCIS, the individual worker can obtain an H-1B visa stamp by appointment at the U.S. consulate or embassy in his or her native country. If the individual is already in the United States, a change of status to H-1B is possible; and if the individual is already in H-1B status, he or she can begin working for a new H-1B employer as soon as the new employer’s petition is filed without having to wait for an approval.

H-1B visa requirements:

  • For a specialty occupation H-1B petition, the employee must have a bachelor’s degree or the equivalent experience.
  • The employer for an H-1B petition must obtain a labor condition application (LCA) from the U.S. Department of Labor before filing the H1B petition with the USCIS.
  • An employee who has previously received an H1-B visa, or been granted H1-B status is generally exempt from the numerical limitations.
  • An employee who is presently employed in H1-B status may utilize the portability provisions of the American Competitiveness in the Twenty-First Century Act (AC21) to transition their H1B to a different employer.
  • The spouse and minor child/ren of an H1-B employee are authorized to live in the United States in H-4 status, and to study, but are not permitted to work.

The LCA verification process requires the employer to certify that the:

  • H-1B individual will be paid the higher of the prevailing or actual wage for that occupation in the area of intended employment.
  • Employer will offer the individual the same terms and conditions of employment that it offers to U.S. workers.
  • Employment of the noncitizen will not adversely affect the wages and working conditions of workers similarly employed in the area of intended employment.
  • Employer will not employ the individual in a strike or lockout, or work stoppage related to a labor dispute in the occupation at the time the application is signed.
  • Employer will notify other similarly situated employees (or their agent) of its intent to employ an H-1B individual in the relevant position.

The employer must also document its compliance with the LCA verifications by retaining relevant documents and by making available a Public Access File ((PAF), and also called a “public examination file” is a file that needs to be maintained by any U. S. employer hiring people in H-1B, H-1B1 or E-3 temporary nonimmigrant worker statuses. It is intended to include more background information related to the attestations made on the Labor Condition Application used for the Form I-129 and/or visa application that was used to acquire the nonimmigrant worker status. The file may be requested by any member of the public through telephone or email inquiries. Any member of the public requesting access to the documents must be allowed to capture the information through such means as transcription, scanning or taking photographs.

H-1B status is initially granted for no more than three years. Extensions are available, but the employee is subject to a maximum cumulative period of six years of H-1B status. H-1B extensions beyond the six-year limit are possible if the individual is the beneficiary of an employment-based permanent residence process that has been pending for more than one year or is the beneficiary of an approved immigrant petition and is unable to adjust status to permanent residence because of per-country limits.

The employer will be liable for the reasonable costs of the foreign national's return transportation if the employer terminates the foreign national before the end of the foreign national's period of authorized stay. The employer is not responsible for the costs of foreign national's return transportation if foreign national voluntarily resigns the position.

Currently, to qualify for an H-1B visa, a company must be willing to pay a qualifying worker a minimum salary of $60,000 annually.

In October 2020, DHS issued the Strengthening of the H-1B Nonimmigrant Visa Classification Program Interim Final Rule revising the definition of "Specialty Occupation" and the DOL issued the Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States Interim Final Rule, amending the regulations governing permanent labor certifications and LCAs to incorporate changes to the computation of prevailing wage levels. On December 1, 2020, the U.S. District Court for the Northern District of California vacated this rule. On January 8, 2021, USCIS published a final rule entitled Modification of Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions that dramatically altered the way in which H-1B registrations were selected for the annual H-1B statutory cap, as established by Congress. The rule replaced the previous random selection process with a new wage-based selection process that prioritized the selection of H-1B registrations based on employers who pay the highest wages. This final rule was withdrawn on December 22, 2021, because the rule was vacated by a federal district court.

H-2B visa (temporary or seasonal)

The H-2B visa classification applies to foreign nationals seeking to enter the United States to perform non-agricultural work for employers with peak load, seasonal, intermittent, or one-time needs. H-2B workers typically fill temporary labor needs in:

  • healthcare
  • construction
  • landscaping
  • lumber
  • food service/processing
  • resort/hospitality services.

The time frame of the employer’s need generally must be for less than one year, although in extraordinary circumstances, the labor might last longer. There is an annual limitation of 66,000 H-2B visas per fiscal year, as set by Congress. In an effort to make the category available for longer periods during each season of the year, this cap is divided in two with 33,000 for employment starting October 1 of the fiscal year and 33,000 for employment starting April 1 of the fiscal year. Because the process for obtaining an H-2B visa can be very lengthy and the cap can be reached quickly, it is important that employers plan in advance to prepare the petition when the visa will be available for the time period needed.

Before an employer files an H-2B petition with the USCIS, it must obtain a temporary labor certification from the DOL. To obtain temporary labor certification, the employer must establish that:

  • it will pay workers at least the prevailing wage for the position in the region where the work will be performed
  • there are no qualified U.S. workers available to fill the position.

On the H-2B petition to the USCIS, the employer may include more than one beneficiary if the beneficiaries will be performing the same service for the same period of time and in the same location. Where the job does not require a specific level of education or experience, employers may seek approval for multiple unnamed individuals. H-2B visas are available for an initial period of one year. An H-2B beneficiary may remain in the United States for up to three years, and then must spend at least six months abroad before returning to the United States.

H-3 visa (trainee)

The H-3 visa allows a foreign national to come to the United States to participate in a training program. There is no numerical limitation on the H-3 visa category. To qualify for an H-3, the petitioner must demonstrate that all of the following are true:

  • the proposed training is not available in the beneficiary’s home country
  • the beneficiary will not be placed in a position that is in the normal operation of the business and in which U.S. workers are regularly employed
  • the beneficiary will not be productively employed, except as incidental to training
  • the training will benefit the beneficiary in pursuing a career outside of the United States.

H-3 visas may be granted for up to two years. However, the USCIS has closely scrutinized H-3 petitions to ensure the visa is not being used to secure the services of the beneficiary. If an employer is considering applying for an H-3 visa to provide training, immigration counsel should be consulted to ensure that the training program is carefully documented and is in compliance with the strict requirements of the H-3 visa program.

L-1 L-1B – Intracompany transfers of managers/ executives or specialized knowledge personnel

The L-1A and L-1B visas are designed to facilitate the temporary transfer of managerial, executive and specialized knowledge personnel from foreign entities to related U.S. entities. L-1A status is for managers and executives and L-1B status is for persons with specialized knowledge of company methods, products, procedures, operations and the like. The L-1 beneficiary need not perform the same type of work in the U.S. as he or she performed abroad, so an alien for example who had specialized knowledge abroad could enter the U.S. as a manager or executive. To qualify for L-1 status, the employee must have worked for the company abroad in a managerial, executive or specialized knowledge position for at least one full year of full-time employment during the three years prior to the transfer to a managerial, executive or specialized knowledge position with the related U.S. entity. First-line supervisors are not eligible for L-1A status as managers unless the persons they supervise are professionals.

The U.S. employer must file a petition for L-1 status with the regional USCIS Service Center with jurisdiction over the location where the individual will work. Canadian transferees may submit the petition at the U.S.-Canada border for immediate adjudication. Once the employer’s petition is approved, the individual may obtain an L-1 visa stamp from the U.S. embassy or consulate abroad or if already in the United States, may commence the L-1 employment. There is no prevailing wage or LCA requirement for L-1s; consular offices should only determine whether the L-1 applicant meets FLSA wage requirements or would be a public charge.

L-1 status is initially granted for three years, and extensions are available for two-year periods. L-1A managers/executives are entitled to up to seven years of L-1 employment in the United States and L-1B specialized knowledge personnel are eligible for a maximum of five years of authorized stay. There are also L-1 visa holders who visit the United States intermittently for brief periods to direct company operations or carry out some essential short-term duty. Such persons, who work only part-time or commute from abroad, may effectively extend their L-1 status indefinitely, provided that their U.S. employment continues to be consistent with the requirements for L managers, executives or specialized-knowledge workers. Generically, those who qualify are known as 'intermittent L-1s. Employment in the United States must be intermittent, not the employment abroad. Significant amounts of time outside the United States working for the same employer arguably amounts to intermittent employment in the United States, regardless of whether that time amounts to 183 or more days per year. However, extended employment in the United States or a declaration of U.S. residency for tax purposes – even if within the longer-term context of permanent assignment abroad – may trigger a rebuttable presumption of abandonment of intermittent status.

Dependents of L-1 transferees obtain L-2 status. Unlike most temporary visa categories that do not allow dependents to work, L-2 spouses may obtain employment authorization.

Blanket L-1 status

Some multinational companies may qualify for “blanket” L-1 status. Typically, this is available for entities that transfer more than 10 people per year, have annual sales in excess of $25 million or have more than 1,000 U.S. employees. Nonprofit organizations cannot file blanket petitions. Blanket L-1 status allows the U.S. entity to bypass the USCIS petition process in individual cases. Instead, the U.S. entity sends a special form to the transferee, who then applies for L-1 status directly at the U.S. consulate or embassy.

The employer must first obtain approval of the blanket petition from one of USCIS’s service centers. The blanket petition is approved initially for a period of three years but may be extended indefinitely after that. Generally, employers should refile and update their blanket petitions after the parent company completes and acquisitions of other companies, so the new blanket petition accurately reflects the parent company’s subsidiaries and affiliates. Blanket L petitions may not be used for L-1B specialized knowledge petitioners where the applicant is not a professional.

O visa (person of extraordinary ability)

The O-1A visa is available to individuals who can demonstrate “extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim.” The O-1B visa applies to individuals who have a demonstrated record of extraordinary achievement in the motion picture or television industry. The O-1 beneficiary must be seeking to enter the United States to continue work in his/her area of extraordinary achievement, but the position being filled in the United States need not be a position necessarily requiring extraordinary talent.

O-1 petitions require significant evidence of national or international acclaim in the field, which is documented as fulfilling designated criteria as set forth in the immigration regulations. The petition for an O-1 visa also must be supported by a written advisory opinion or “consultation” from an appropriate organization with authority over employment in the field throughout the United States or a peer group or management organization consisting of practitioners of the individual’s occupation. Where no labor organization or peer group exists, the opinion or consultation may be in the form of affidavits from industry experts. As previously mentioned, similar to the L-1 and H-1B, employers must certify their compliance with the export control laws upon filing an O-1 petition.

There is no annual numerical limitation on the number of O-1 petitions that can be approved by USCIS. O-1 visas are granted for up to three years initially, and may be extended in one-year increments, with no maximum limitation on extension. O-2 visas are available to qualified support personnel accompanying the O-1 individual. The O-1 visa category is reserved for individuals who are considered to be at the top of their field.

TN visa (Canadian and Mexican NAFTA professional)

TN (treaty national) visas are available to Canadian and Mexican citizens who seek entry to be employed in certain professional occupations designated in the North American Free Trade Agreement (NAFTA). Prospective employers must demonstrate that the beneficiary is a NAFTA eligible professional by submitting evidence that the beneficiary possesses the minimum qualifications of one of the occupations specified in Appendix 1603.D.1 of the NAFTA treaty. The most common minimum requirement is a baccalaureate degree or licensure, if required for the profession.

Because Canadian citizens are visa exempt, they may apply for TN status at the time of admission at a U.S. port of entry (land border or airport pre-flight inspection). The Canadian must show proof of Canadian citizenship, his/her professional qualifications, and proof of the job offer from the U.S. employer (typically in the form of an employer letter) for a position designated on the TN list of occupations. Mexican citizens require visas, and must apply for the TN visa at a U.S. embassy or consulate outside the United States. The TN visa is valid for up to three years and may be renewed in three-year increments as long as the individual continues to qualify, with no maximum limitation on the period of stay. However, TN classification (unlike L-1 or H-1B) does not allow for dual intent, thus foreign nationals generally may not apply for permanent residence while on a TN visa.

Spouse and children visas

Spouses and children (immediate family) may apply for dependent visa status and accompany the principal foreign national during his/her stay in the United States. H-4 is the dependent visa classification to the H-1B, H-2B, and H-3. O-3 is the dependent visa classification to the O-1 and O-2. TD is the dependent visa classification to the TN. L-2 is the dependent visa classification to the L-1.

As demonstrated in the previous paragraphs, there are many non-immigrant visa options (including some not mentioned here) that employers may potentially choose from to pursue on behalf of the foreign national employees whom they seek to hire and retain. Immigration counsel should be consulted to determine the best available option.

Obtain permanent residence status

Because non-immigrant status provides only for a temporary stay, employers seeking to retain foreign national employees long-term in the United States will sponsor employees for "permanent residence" (green card). Typically, the individual is already in the United States working for the employer in non-immigrant status (H-1B, L-1, etc.) and that status is maintained throughout the sometimes very lengthy permanent resident process. As noted previously, companies should consider formalizing policies around permanent residence sponsorship, including timing of initiation and who makes the decision to initiate the process. For most individuals, the three steps are:

  1. PERM (Form ETA 9089 to DOL)
  1. Immigrant Petition (Form I-140 to USCIS)
  1. Adjustment of Status (I-485 to USCIS) or Immigrant Visa Processing (at U.S. Embassy or consulate abroad).

Certain individuals may be able to avoid PERM, as discussed below.

PERM

For most individuals, the permanent residence sponsorship process involves three steps starting with the filing of a PERM application with the DOL. The PERM process is explained at:

PERM involves a test of the U.S. labor market to show that there are “not sufficient U.S. workers able, willing, qualified, and available to accept the job opportunity in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.”

When initiating a PERM, the employer must give careful consideration to articulate its actual minimum requirements for the job position for which certification is sought. Actual minimum requirements are:

  • the level of education
  • the level of experience
  • any special skills that cannot be learned on the job within a reasonable period of time.

Notably, PERM does not allow the use of experience gained with the sponsoring employer to qualify the foreign national for the position offered. However, a foreign national may gain experience in a position that is not substantially comparable (50% different job duties). Moreover, the employer must be prepared to demonstrate the job duties and requirements bear a reasonable relationship to the occupation in the context of the employer’s business and are essential to perform the job in a reasonable manner. Finally, the employee must qualify for the offered position, typically through employment verification letters from prior employers and diplomas/degrees and transcripts evidencing the appropriate level of academic preparation.

Prior to filing a PERM application, the employer must engage in a good faith recruitment effort. The DOL policy is the protection of U.S. workers and stringent rules ensure strict compliance with the exacting requirements of the PERM process. To ensure compliance, the DOL will audit a certain percentage of PERM cases. Thus, for any PERM case that is filed, an employer may receive an audit request and must provide any requested documentation to the DOL within 30 days of the audit notice. The employer must respond to the audit, or the PERM will be denied and supervised recruitment will apply to any subsequent applications filed with DOL on behalf of the foreign national employee. Therefore, before filing the PERM, the employer should do all of the following:

  • maintain a spreadsheet
  • retain proof of advertising
  • retain copies of in-house/intranet/State Workforce Administration (SWA) postings, as well as a recruitment summary describing:
    • the recruitment steps taken
    • the results achieved
    • the number of U.S. workers rejected categorized by the lawful job-related reasons for each rejection
    • copies of each resume/application received, sorted by rejection reason
    • advertising/recruitment documentation
    • posting documentation
    • prevailing wage documentation
    • ETA 9089 form signed by the employer
    • business necessity documentation.

As noted, the employer must pay the “prevailing wage” for the occupation. The prevailing wage rate is defined as the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. Prior to filing the PERM, the employer must request a prevailing wage determination from the National Prevailing Wage Center (NPWC). The wage must be paid at the time the foreign national’s permanent residence (green card) is actually issued.

DOL processes applications for Permanent Employment Certification under normal PERM filing with the exception of physical therapists, registered nurses, qualified individuals of exceptional ability, and sheepherder applications. The date the labor certification application is received by the DOL is known as the filing date and is used by USCIS and the Department of State as the priority date. After the labor certification application is certified by DOL, it is submitted to the appropriate USCIS service center with an Immigrant Petition. The certification has a validity period of 180 days and expires if not submitted to USCIS within this period.

Immigrant visa priority dates

The priority date is established by the filing date of the PERM application (or immigrant petition, if no PERM is required) and determines the order of availability of green cards. There is an overall limit on the number of employer-sponsored permanent residence approvals each year of 140,000. This is also limited on a per country basis and is distributed based on preference categories:

  • First Preference (EB-1)
  • Second Preference (EB-2)
  • Third Preference (EB-3).

There is currently a backlog in availability for all EB-3s; additionally, natives of India and China face substantial delays even for EB-1 and EB-2. The foreign national cannot file for Adjustment of Status (AOS) nor receive a green card approval on a pending AOS if the priority date is not “current.” As noted previously, special rules apply to allow H-1B status to be extended in three-year increments while waiting for a current priority date. In any event, the Immigrant Petition should be filed fairly quickly upon approval of PERM to ensure that the PERM does not expire.

Priority date retrogression has severely impacted the ability to file AOS and/or complete the employment based green card process. If a priority immigrant visa number is available, an application for an AOS may be concurrently filed with the Immigrant Petition with USCIS. Significantly, the employee (and family) can receive employment authorization (EAD) and parole (travel document) while the AOS is pending. Since many of the non-immigrant visa dependent categories do not permit employment authorization, this may be of importance to the family members of the employee.

Options for avoiding PERM

Certain individuals may be able to avoid the necessity of having a PERM approved on their behalf, including those qualified for the EB-1 category, individuals of exceptional ability, national interest waivers, physical therapists, registered nurses, and sheepherders.

There are three subcategories under the Employment Based First Preference Category that do not require PERM labor certification:

  • EB-1/1 Extraordinary Ability: Similar to the requirements for the O-1 visa, this requires a showing of sustained national and international acclaim and satisfaction of at least three of the enumerated criteria set forth in the immigration regulations.
  • EB-1/2 Outstanding Researcher: Researcher or professor with at least three years of experience in teaching/research in the field who is recognized as outstanding in the field. Evidence consists of at least two of the enumerated criteria set forth in the immigration regulations. The employment must either be for:
    • a university or medical institution
    • a research position with a private institution within at least three full time researchers that has documented accomplishments.
  • EB-1/3 Multinational Executive/Manager: Similar to the requirements for the L-1A visa, this is for an individual who will be employed as a manager or executive, was employed at least one continuous year out of the last three years in a managerial or executive capacity, and if already in the United States on non-immigrant status, the one year out of past three years was preceding entry as non-immigrant and the prospective U.S. employer must be the same employer or subsidiary or affiliate of the firm or corporation or other legal entity that employed the beneficiary abroad and from which the U.S. employer has been doing business for at least one year.
  • EB-2 Schedule A Pre-Certification for Aliens of Exceptional Ability: The DOL has pre-certified aliens of exceptional ability who can satisfy the enumerated criteria set forth by the immigration regulations. Thus, the employer of such qualified foreign nationals does not file PERM with the DOL, but instead files the Immigrant Petition with USCIS.
  • EB-2 Schedule A Pre-Certification for Physical Therapists/Registered Nurses: The process for physical therapists and registered nurses does not involve filing a PERM with the DOL. This is because the DOL has “pre-certified” these occupations. Thus, the employer seeking to employ a qualified physical therapist or registered nurse directly files the Immigrant Petition with USCIS.
  • EB-2 National Interest Waiver: A foreign national may self-petition and seek a waiver of the PERM filing requirement if his/her prospective work is in the national interest, that is, if it is:
    • of substantial intrinsic merit
    • prospective national benefit
    • the prospective national benefit must substantially outweigh the inherent national interest in requiring a labor certification.

This is a long-standing and faster route to lawful permanent residence typically used by and limited to doctors, cutting-edge research scientists, and other renowned professionals.

The permanent residence sponsorship process is complicated and can be very lengthy, depending on government processing backlogs and priority number availability based on yearly demand. Careful planning and coordination with immigration counsel will help ensure that available options are considered and the process is strategized for the best chances of success while ensuring strict compliance with the myriad immigration laws and regulations.

Consequences for noncompliance with I-9 requirements

In the context of I-9 compliance, employers face both civil and criminal liability.

The Department of Homeland Security (DHS) announced on March 20, 2020, that it will relax the in-person verification requirements of the Form I-9, Employment Eligibility Verification for employers operating remotely due to COVID-19. Beginning March 20, 2020, employers will not be required to review an employee’s identity and/or employment authorization documents while in the employee’s physical presence. This relaxation of the in-person verification requirements is effective for a period of 60 days from that date of the notice, or for up to 3 business days following the termination of the COVID-19 national emergency by the Trump administration, whichever comes first.

On May 1, 2020, USCIS announced that it is also relaxing the requirement that state driver’s licenses and identification cards be unexpired when presented as a List B document for I-9 verification.

Civil liability

Although outside contracting agencies are typically responsible for ensuring their own employees are in compliance with I-9 verification rules, a great deal of confusion appears to exist in this area. Generally, if an employer knows it is paying for unlawful labor, directly or indirectly, that employer would be deemed to be in violation of law.

Civil penalties

Employers who fail to comply with the I-9 verification rules can face significant fines. As outlined previously, ICE is aggressively pursuing civil fines against employers.

For each paperwork violation (i.e., when a Form I-9 is not properly completed), an employer’s exposure ranges from $237 to $2,360 per violation. Such violations arise for employers “who fail to comply with employment verification requirements.”

For each offense of knowingly, actually or constructively, employing or continuing to employ unauthorized workers, an employer faces civil fines ranging from $590 to $23,607 for each such worker. These fine amounts increase substantially for employers who have previously been found to be in violation of employment eligibility verification requirements.

In addition, employers who are found to be out of compliance will be subjected to cease-and-desist orders and required to take other remedial actions.

Finally, according to Executive Order 12989, an employer who violates employment eligibility verification requirements may be barred from participating in federal contracts in one-year increments.

In the context of civil violations, despite some of the guidance outlined previously, the corporate entity is typically responsible for any fines imposed. Although there is some precedent for Legacy INS and ICE to pursue fines against owners of companies, those scenarios are rare. Normally, where the party in question is composed of distinct, physically separate subdivisions that do their own hiring for employment, that subdivision will be considered the appropriate target for civil sanctions. Nonetheless, if ICE finds widespread problems, it will often expand its investigation of an entire company.

Criminal liability

ICE has developed a comprehensive worksite enforcement strategy that is designed to target both workers and employers for criminal charges. The strategy includes the use of traditional tools of criminal investigation, such as “confidential sources and cooperating witnesses, introduction to undercover agents, consensual and nonconsensual intercepts, and Form I-9 audits.” In the absence of criminal prosecution, the strategy focuses on civil fines and debarment. Nonetheless, ICE maintains that inspecting I-9 forms can be a jumping off point for investigations into criminal liability.

Some employers appear to misunderstand the scope of their potential exposure for immigration-related violations. In many cases, a civil audit represents the beginning of an employer’s problems. ICE, of course, takes the view that double jeopardy does not attach to civil fine proceedings, making it possible for the agency to pursue both civil sanctions and criminal prosecutions against the same employer.

Harboring/encouraging or inducing (felony)

The most common legal theory under which employers are prosecuted in the immigration context arises under the harboring or encouraging or inducing statute. This activity includes either one of the following:

  1. knowingly or recklessly disregarding the fact that an alien has come to, entered, or remains in the United States in violation of law; conceals, harbors, or shields from detection; or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation

  2. encouraging or inducing an alien to come to, enter, or reside in the United States, knowingly or recklessly disregarding the fact that such coming to, entry, or residence is or will be in violation of law.

The statute also applies to those who engage in conspiracy to commit such acts or aid and abet others who participate in them (for instance, an independent contractor, a staffing agency, etc.).

It should be emphasized, of course, that the encouraging or inducing offense does not require an employer to know the employee is residing illegally in the United States. Rather, the employer’s reckless disregard of (or awareness of, but conscious and careless ignoring of facts and circumstances relating to) illegality will be sufficient to proceed under the foregoing jury instructions. The employer only needs to knowingly encourage or induce the alien (i.e., not a U.S. citizen) to reside in the United States, and it only needs to recklessly disregard the fact that such ongoing residence in this country would be against the law.

In light of the broadened definition ICE uses for “knowledge,” with actual knowledge being unnecessary, it would not take much creativity for ICE to pursue an individual who:

  • knew (or deliberately ignored the fact that) an individual was an alien (non-U.S. citizen)
  • encouraged him/her to stay in the United States by offering employment (directly or indirectly)
  • knowingly or recklessly disregarded the fact that the individual’s continuing presence in the United States would be in violation of law.
Penalties for harboring/encouraging or inducing (felony)

The penalties associated with the harboring and encouraging and inducing statute are extreme. Individuals who engage in such conduct for commercial advantage face up to 10 years per count in prison. Even if no such advantage can be shown, they would face up to five years per count.

In addition, any property or gross proceeds involved in the illegal activity may be subject to civil forfeiture. In the IFCO Pallet Company case, for instance, in an effort to avoid indictment of the corporate entity, the company agreed to pay approximately $20 million in civil forfeitures.

Pattern or practice (misdemeanor)

A separate misdemeanor offense exists for employers who engage in a “pattern or practice” of hiring or continuing to employ illegal aliens. Such conduct can lead to imprisonment of up to six months (for the entire pattern or practice), and fines of up to $4,722 for each unauthorized alien.

While ICE believes that pattern and practice cases are harder to prove than felony cases, misdemeanor charges do not create the type of deterrent for which ICE is hoping. Consequently, in almost all cases, ICE will (at least, initially) seek felony charges.

Miscellaneous crimes/remedies

The government has a number of additional legal theories that often arise in the context of employing illegal workers. The following theories are especially common:

  • It is a criminal offense, carrying a penalty of up to five years, for “any person who during a 12-month period knowingly hired for employment at least 10 unauthorized individuals with actual knowledge” that they are not authorized to work and “were brought to the United States in violation of [law].”
  • An employer can be convicted of money laundering for engaging in a financial transaction with proceeds of specified unlawful activity, including harboring, attempting to harbor, aiding and abetting harboring, and conspiracy to harbor. The maximum penalty for each violation is 10 years’ imprisonment and fines.
  • An employer that impedes, impairs, or obstructs lawful government functions of the Internal Revenue Service (IRS), Social Security Administration, etc., by providing false information (for instance, fake social security numbers) is engaging in conduct that is punishable by up to five years in prison.
  • A material misrepresentation on a Form I-9, Employment Eligibility Verification, will be punishable by up to five years.
  • Upon conviction of any federal felony, under the Criminal Asset Forfeiture statute, a jury may authorize seizure of all assets used in the commission of the crime and all proceeds of the crime.

In the end, the government has a broad variety of criminal statutes and theories at its disposal. This is only an overview of some of the more common approaches seen in recent years.