Immigration & theHospitality Industry: What’s Expected for 2013?

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described educational requirements or a limited

group o proessions, such as accountant, computersystems analyst and hotel manager. Managementconsultants are also possible, but don’t call someonea consultant just because there isn’t a NAFTAproession or the service you need.

For more inormation, see http://1.usa.gov/8o0t6m.

L and EB-1 Status: Executives and

Managers can be transerred rom

related businesses

 The government makes it relatively easy to transera person rom one related business entity outsidethe U.S. to another in the U.S. That person must haveworked in an executive, managerial, or specialized

knowledge capacity or that entity outside the U.S.or at least one year within the past three, and becoming to the U.S. to work in one o those capacities. The two businesses must be related, either in termso corporate relationship or ownership by the sameperson or group o people.

 This process can be used or temporary positions,

approved or up to seven (7) years, or “permanent”employment, which many people call a “green card.”It requires a mail-in ling or most people, taking romtwo weeks (i an expediting ee o $1,225 is paid) toseveral months or review, except or Canadians, whocan present them at a border or port o entry or anon-the-spot decision. Initial ling ees total $825 and,or everyone but Canadians, a visa must be appliedor and issued at a U.S. consulate outside the country.

For more inormation, see http://1.usa.gov/cI9arF,http://1.usa.gov/aCcNY, and http://1.usa.gov/901kqE.

E-3 and H-1B: Occupations that require

a degree or equivalent can be lled,

with some limitations

“Specialty Occupations” present another great optionor U.S. employment o transerred employees ornew hires. The general rule or these jobs is that the job requires a particular kind o college degree orthe equivalent o that degree based on educationand/or experience, and the person has that degree

or equivalent. Classically, this applies to jobs such as

accountants, engineers, and computer proessionals,among others. It can be dicult to get approval or jobs that some people (and the government) don’tnormally associate with a particular degree, such asSales Managers, Market Research Analysts, or PublicRelations Specialists. But it can be worth exploring.

 The current challenge with the H-1B classication

is you can only hire people who already have thatclassication; a person who has not already beenapproved or employment with that classicationcan’t get it until October 2013. Anyone hoping to beconsidered or one o the H 1B’s to be allocated atthat time should plan to submit the ling on April 1,2013, the rst day on which lings will be accepted.Only 65,000 new H-1B’s are available or each scalyear, and they can all be allocated within as little as

a ew days or weeks. Fortunately, Australian citizenshave a virtual equivalent to the H-1B in the orm o the E-3 status, which is open or applications year-round.

Both o these classications require multiplegovernment lings and approvals, with government-charged ling ees starting as low as $825 or an

E-3, and $1,575 or an H-1B. Visa ees add to thosecharges. Approval o an E-3 is or two years, butrenewable indenitely, whereas the H-1B can onlybe approved or as many as six years, in three yearincrements.

For more inormation, see http://1.usa.gov/boasGiand http://1.usa.gov/8VIT7E.

You can expect that the H-1B classication will be thesubject o great debate in Congress. Many employersclaim that businesses are sufering because o thelack o available, highly educated U.S. workers andthe restriction on the number o new H-1B approvals.Don’t be surprised to see higher government-chargedees in exchange or an increase in the numbers.

E-2: Foreign-owned businesses in the

U.S. might have another option

It might be possible to open an additionalemployment-based immigration option i thebusiness operating in the U.S. happens to have

 

signicant (50% or more) oreign ownership orinvestment. The U.S. has treaties with many countriesthat make it possible to hire citizens o the oreigncountry, whether they are still in that country or

already in the U.S., to provide executive, managerial,or “essential” services.

 The E-2 process may involve a ling at a U.S.consulate overseas and/or a mail-in petition in theU.S. Government-charged ling ees at consulatesstart at $270, with the possibility o additional eesassociated with the particular country. Mail-in lings

in the U.S. have a $325 ling ee. Mail-in lings cantake one month or more or review, and visas can takethat long or longer, depending on the availability o appointments.

You can determine whether such a treaty exists ora specic country by checking the Department o State’s Visa Reciprocity page at http://www.travel.state.gov/visa/reciprocity/index.htm.

F-1 and J-1: Foreign students and

exchange visitors can help in a pinch

Remember those days when you were perorming aninternship while in school, working during summervacation, or in that rst job ater graduation? Optionsmay exist or you to employ oreign students in almostany kind o job, but you must be very careul to ollowthe rules. Employment o F-1 students during the

school year is limited, but many students approvedor “curricular practical training” or “optional practicaltraining” can be available or up to a ull year o ull-time service. J-1 “exchange visitors” have come undermore challenging protocols, but i one is authorizedto work or you, such as at a seasonal resort, it canbe an excellent option or students interested insummer work/travel.

For more inormation, see http://1.usa.gov/3ud5QV.and http://1.usa.gov/2xD0jS.

Everybody’s still talking about EB-5 and

Regional Centers

Many in the hospitality industry have identied asource o signicant unds through the EB-5 program,which includes Regional Centers as one variant.

Investors can get a “green card” or themselves andqualiying amily members i their investment o at least either $500,000 or $1 million results in theemployment o at least 10 U.S. workers. The investor

must be engaged in the management o the U.S.business, either through the exercise o day-to-daymanagerial control or through policy ormulation.

For more inormation, see http://1.usa.gov/4h1syb.

Don’t orget – the Form I-9 is

or Everybody, not just “oreign”

employees

Everything I’ve noted above is employment, whichmeans that you must complete a Form I-9 or all o them, just like you do or every single employee inyour workorce. Government audits are becomingmore common, but less widely publicized, and nesor “paperwork” violations can be surprisingly large.

Some o you are registered in the E-Veriy program.I would not be surprised i E-Veriy, or some versiono it, becomes a requirement or all employers as apart o comprehensive immigration reorm. Butuntil then, it is optional or most employers exceptcertain ederal contractors and their subcontractors.State and local legislation, such as in Arizona, have

imposed E-Veriy registration, too, so be sure youunderstand the requirements established by theederal and state or local governments in whose jurisdiction you operate.You can learn much more at I-9 Central, at http://www.uscis.gov/I-9Central.

How about transers rom the U.S. to

provide services elsewhere or simply

providing management services to

entities outside the U.S.?

It certainly makes business sense to “export” your

knowledge base to improve the bottom line o aoreign entity, whether corporately related or simplyas a matter o selling your expertise. But a wordo caution is due, including or work to be done incountries like Canada and the U.K., where it’s easy toget into the country or months at a time without avisa. Don’t orget – these are diferent countries, with

 

diferent laws, including immigration, employmentand tax laws. The act that it’s easy to talk on thephone or work together over the internet does notmean that you might not be required to navigatetime-consuming procedures and get governmentapprovals in advance o entering the other country.

 This is one o the reasons that our rm is a membero the Globalaw network o law rms, with oces in

more than 160 countries. It’s also why I am the co-chairo that organization’s Cross Border Labor Initiative,which regularly meets and shares inormation aboutvarying immigration and employment standards sothat we can get our clients to the right lawyer in thetarget country or quick, efective advice.

Conclusion

Business moves quickly – government bureaucracydoes not. Don’t expect much change to actually takeplace this coming year. But be prepared to let yourCongressional representatives know what you needin terms o changes to our immigration laws. Other

than that, the best things that you can do are to planwell in advance and to understand the current rules,timelines and costs required to meet your needs or2013.

Gregg Rodgers is an owner

in the Seattle oce o Ga rveySchubert Barer, a ull-servicelaw rm o more than 100attorneys with oces in Alaska,Beijing, New York, Portland,Seattle and Washington, D.C.He concentrates his practiceon the areas o immigration

(business, healthcare

proessionals, and amilies) and employment law. Mr.Rodgers provides legal advice to individuals, businessowners, managers, and executives on each o theseareas. He conducts audits and advises clients onForm I-9 and E-Veriy compliance. He also conductstraining sessions or clients, trade associations, and

educational groups, on immigration and on laborand employment law issues.