Employing Foreign Workers: What US Companies and Counsel Need to Know

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1 Employing Foreign Workers: What US Companies and Counsel Need to Know Joel Pfeffer, Esq. Presented to: Association of Corporate Counsel Small Law Department Committee November 10, 2016

2 Status Non-Immigrant Permanent Resident (Green Card) Citizen

3 Examples of Non-Immigrant Categories Business Visitor Treaty Trader/Treaty Investor Category Academic Student/Practical Training Specialty Occupation (Professional) Exchange Visitor/Graduate Student Intra-Company Transferee Extraordinary Ability in Sciences, Arts, Education, Business or Athletics Religious Worker Trade NAFTA Visa/Status B E F H-1b J L O R TN

4 Business Visitors Temporary business travel such as negotiating contracts, attending exhibitions and conferences, short-term training, and consultation with suppliers and customers. Not permitted to work in the U.S. Visitors from 38 Visa waiver countries may apply for entry at the Port of Entry. Visitors from other countries are interviewed at a U.S. Consulate or Embassy for a Visa.

5 H-1b Specialty Occupation Visa The alien must possess one of the following: U.S. bachelor or higher degree required by the specialty occupation; Combination of education, training and progressive experience equivalent to a bachelors degree; An equivalent foreign degree; An unrestricted state license if required to practice the profession.

6 H-1b Specialty Occupation Visa The position must: Be a professional position. Pay a salary that meets the prevailing wage. Be related to the employers business and the alien s education and experience.

7 Annual Limit (CAP) The H-1b CAP The H-1b program is subject to an annual limit of 65,000 aliens, plus 20,000 aliens with U.S. masters or higher degree. Petitions are approved for employment during the government s fiscal year, October 1 to September 30. On April 1 st petitions are accepted for October 1 st start date. Over 236,000 petitions received in April 2016.

8 Annual Limit (CAP) The H-1b CAP (continued) The CAP does not apply to employees who are in the U.S. and working for another employer. The CAP does not apply to educational institutions or related entities. Approvals are for three years, with extensions up to a maximum of six years.

9 L-1 Intra-Company Transferee The L-1 VISA Available to employee of a multinational company who has worked abroad for the U.S. company s parent, branch, subsidiary or affiliate for at least one year during the three years prior to application. Available for an executive, managerial or specialized knowledge employee.

10 L-1 Intra-Company Transferee The L-1 VISA (continued) L-1 status is valid for an initial three year period and may be extended up to a maximum of seven years for managers and executives and a maximum of five years for specialized knowledge employees. Permanent Resident status is available for managerial or executive employees (but not specialized knowledge) who served as managers or executives for one year within the three years prior to entry into the United States.

11 Special Rules for Citizens of Canada and Mexico Trade NAFTA (TN) TN Visa is available for citizens of Canada or Mexico who are employed in a published list of professional occupations. Mexicans must apply at U.S. Consulate for Visa. Canadian may apply at Port of Entry

12 Permanent Resident Permanent Resident Priority workers: First Preference Extraordinary ability in sciences, art, education, business or athletics. Outstanding professors or researchers. Intra-company transferee (managers or executives). Advanced degree professional or exceptional ability: Second Preference Professional or skilled worker: Third Preference Non-skilled worker: Third Preference

13 Permanent Resident Status Labor Certification Professional, skilled or non-skilled workers need certification form U.S. Department of Labor (DOL). DOL reviews the employer s recruitment effort to determine whether there is a qualified U.S. worker available to fill the position. Prevailing Wage Test of Labor Market Requirements for position not to exceed what DOL considers normal for the position, unless employer can establish business necessity.

14 Permanent Resident Status Labor Certification (continued) Once certified by DOL, employer petitions U.S. Citizenship and Immigration Services (CIS) to approve alien for Permanent Resident Status. Employer's ability to pay salary. Employee's education and/or experience meets requirements approved by DOL. Following approval by CIS, processing may be subject to quota delays. If alien is subject to quota delays, H-1b status can be extended beyond six year maximum.

15 Quota System Quota Delays Priority Dates (September 2014) First Preference All current Second Preference Worldwide Current China October 8, 2009 India May 1, 2009 Third Preference Skilled workers Worldwide April 1, 2011 China November 1, 2008 India November 8, 2003

16 Joel Pfeffer Meyer, Unkovic & Scott LLP Henry W. Oliver Building 535 Smithfield Street, Suite 1300 Pittsburgh, PA U.S.A