Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments;...
Transcript of Immigration Law Options and Concerns for the Pork Industry · Duration of H-1B: 3 year increments;...
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Immigration Law Options and
Concerns for the Pork Industry
Presented By:
Bernhard MuellerRaleigh, NC
EMPLOYERS & LAWYERS, WORKING TOGETHER
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Attracting Foreign Workers
� When you decide to recruit a foreign worker either in the U.S. or from abroad, US immigration laws kick in.
� Whether to pursue work visa sponsorship depends on many factors, such as:
� Difficulty with recruiting US workers
� Cost of visa sponsorship
� Time it takes to obtain work visas
� Type of visa the individual presently holds
� Cost of legal compliance with regulatory mandates
� Long-term goal of the company vis-à-vis the worker
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Costs & Benefits For Employer
Recruiting foreign workers is in most cases more
expensive than hiring local US workers.
Costs include:� Initial expenses to obtain the visa for the foreigner
� Continued costs of regulatory compliance
� Uncertainty about the outcome of the visa application (what if the application is denied?)
� Uncertainty about when the foreigner can actually start working for the US company
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Costs & Benefits For Employer
Hiring foreign workers can bring benefits.
Benefits include:� Increased diversity in workforce
� Better employee loyalty (though not guaranteed)
� Access to wider recruitment / talent pool
� Once the immigration process is set up, subsequent cases will be less costly
� Building relationships with foreign academic institutions for continued supply of talent
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Need for Immigration Law Providers
� Immigration law is highly technical with many hidden traps.
� Companies should not try to “learn” immigration law as they apply for a foreign national.
� Simple and innocent mistakes can delay the process or result in denials of applications.
� Non-compliance can result in significant fines and bars from obtaining immigration benefits in the future.
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Working with Immigration Law Providers
There are several immigration law providers to
choose from, depending on the company’s needs:
� Immigration lawyers
� International Exchange Program providers
� Immigration consulting firms
� Federal agencies responsible for immigration laws:
� US Citizenship and Immigration Services (USCIS)
� US Department of State (DOS)
� US Department of Labor (DOL)
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Working with Immigration Law Providers
� Government agencies only provide generalized guidance, which is not tailored to a specific need.
� International Exchange Program providers deal primarily with the J-1 exchange visa system for trainees / interns.
� Immigration lawyers are best suited to assist the company with employment-based immigration matters.
� Immigration consulting firms may not be able to provide employment-based immigration services.
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How To Get Started
� The type of employment-based immigration benefit for a foreigner depends on the proposed job, the individual’s qualifications and current immigration status.
� The company should have a clear understanding of the process and costs involved, before making commitments to the foreign national.
� If possible, build in sufficient buffer time to avoid surprises down the road.
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EMPLOYERS & LAWYERS, WORKING TOGETHER
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Immigration Vocabulary
� Nonimmigrant Aliens
• Temporary / finite period of stay for a defined purpose
• Alphabet Soup classifications of visas from A to TN
� Permanent Resident Aliens (Immigrants / Green Card holders)• Indefinite stay / duration (lifetime, generally)
• Unrestricted and permanent work authorization
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The Nonimmigrant Visa Alphabet Soup
� J-1 Trainees / Interns
� H-3 Trainees
� F-1 Students
� H-1B Professionals / Specialty Occupations
� L-1 Intra-Company Transferees
� TN NAFTA Professionals
� O-1 Extraordinary Ability Aliens
� H-2B Seasonal/Peak-load Workers/Laborers
� H-2A Seasonal Agricultural Workers/Laborers
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J-1 Trainees/Interns
J-1 trainees/interns can work in the US for up to 18 months
� Application is filed with a J-1 sponsoring agency / organization
� No USCIS application; visa issued at US Consulate
� 2-year foreign residence requirement may apply after end of program
� FICA exempt
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H-3 Trainees
H-3 trainees may work in the US for up to 24 months
� Requires a detailed discussion of the training plan & training segments
� Must show that training is unavailable in trainee’s home county
� Must show that training will assist trainee in preparing for a future assignment overseas
� Can file Blanket H-3 petition for groups of trainees
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F-1 Students
Most foreign students in the US have an F-1 student visa.
They can work if the school has approved the foreign student
for either:
(1) Curricular training;
(2) Hardship employment; or
(3) Optional Practical Training (1-year post-graduation visa).
F-1 Students are FICA exempt
Students will often ask for H-1B visa sponsorship as well. Quota
issues may come up.
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H-1B Visa Requirements
Option for hiring college graduates
� Job must be a Specialty Occupation = Professional
� Position must require a Bachelor’s Degree in specific specialty (e.g., food safety, agricultural science, etc.)
� Individual must have the required Bachelor degree (or equivalent through education and experience)
� Employer must pay at least the prevailing wage
� Employer must comply with detailed regulations issued by the DOL (record keeping, wages, working conditions, etc.)
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H-1B Visa Concerns
� Annual cap — 65,000 visas only per fiscal year
� Special 20,000 H-1B quota for U.S. Master’s degree graduates (exempt from general 65,000 quota); H-1Bs for Singapore and Chile; E-3 for Australia
� Duration of H-1B: 3 year increments; total 6 years,
� Can file H-1B extensions beyond 6-year limitation if green card process started in advance (discussed later)
� “Portable” H-1Bs: Can work for new employer upon USCIS filing
� Employer is subject to random audits by the USCIS under the Anti-Fraud provisions of the H-1B regulations.
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L-1 Intra-company Transferees
� Applies to foreign employees with prior work experience abroad with a related company (parent, subsidiary, affiliate, branch).
� Employee must fill either an executive/managerial position or a job requiring specialized knowledge about the company’s technology, products or services.
� May be employed by the US company for 5 to 7 years.
� Employer is subject to random audits by the USCIS under the Anti-Fraud provisions of the H-1B regulations.
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TN Visa — NAFTA Professionals
� Trade NAFTA (TN) classification - Available only to Canadian and Mexican citizens.
� U.S. position must be included on specific list of NAFTA occupations: e.g., agricultural scientists, range manager, animal breeder, veterinarian, geneticist, biologist, etc.
� Allowed to remain in the US for one year at a time (is renewable).
� Foreign national must have credentials required for the profession.
� Canadians apply directly at port-of-entry (border or airport).
� Mexicans apply at U.S. Consulate in Mexico.
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O-1 Visas – Extraordinary Ability
� Reserved for foreign nationals who have risen to the top of the field, e.g., researchers, scientists, etc.
� Requires proof of extraordinary achievement (patents or awards, publications, peer letters).
� Visa status initially valid for 3 years (subsequent extension in1-year increments possible).
� Application filed with USCIS.
� Can be an alternative to the H-1B quota for some individuals.
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H-2B Visa for Laborers
� Used for foreign skilled & unskilled laborers� Only good for a temporary stay (one year or less)� Must show unavailability of U.S. workers (Labor Certification
Application filed with DOL)
� Valid for increments of 11 months or less
� Annual visa cap of 66,000: has already been reached for the rest of FY 2008 [Rep. Virginia Foxx (R-NC) and Thelma Drake (D-VA) introduced bill to create exemption for returning workers]
� Must fit one of four categories (can be hard to prove):(1) One-time Occurrence (2) Seasonal Need (3) Peak-load Need; or (4) Intermittent Need
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H-2A Visa for Seasonal Ag Workers
� Used for bringing foreign workers into US to perform agricultural labor or services of a temporary or seasonal nature.
� No annual cap on H-2A visas, but only 75,000 workers came last year under that visa.
� The DOL and DHS have proposed changes to the regulations to streamline process, provide additional worker protections and increase penalty levels.
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H-2A Visa for Seasonal Ag Workers
� Only good for a temporary stay (less than 12 months)
� Must show unavailability of U.S. workers (Labor Certification Application filed with DOL)
� Very specific Adverse Effect Wage Rate requirements imposed by DOL (not necessarily reflective of market wages!) may be subject to change under new regulations
� Must provide transportation and housing (or pay for same)
� Employer must comply with detailed DOL regulations about recruitment of US workers, work guarantees to employees, insurance, etc.
� Employers are subject to DOL compliance audits.
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Time & Money Considerations
� Most work visa applications must first be approved by the USCIS
� Visa costs range from $320 to over $2,000� Lawyer fees� Regular Processing Time: Several Months� Expedited Processing (15 days or less) – extra $1,000 fee
� Once approved by USCIS, foreign worker must get visa in passport at the U.S. Consulate abroad.
� Personal visa interview required� May take several weeks before appointment slot available at the Consulate
� Applicant must pay visa application fee(s)� Security Background Checks
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Immigrant Visas (“Green Cards”)
� Family Based Categories
� Employment Based Categories
� Overall annual limit in addition to “per country”limits
� Processing times – from 12 months to several years
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Employer-Sponsored Green Cards
Step 1: Labor Certification� Labor market test / recruitment of US workers
� Total time required typically from 4 months and up
Step 2: Immigrant Petition to USCIS� Processing time typically between 4 to 12 months
Step 3: Application for Permanent Residence -Adjustment of Status� Processing time typically between 6 to 30 months
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Time & Money Considerations
Employer-sponsored green cards can be
expensive and time consuming:� High advertisement costs (at least $1,000 dollars)
� Lawyer fees
� Fees to the government
� Lengthy process
� Some green card categories have a long waiting period (due to annual quotas and per-country quotas)
� Mandatory background checks can lead to several years processing delays
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Immigration Law Compliance
� Continued ICE Enforcement Focus on Food Processing Industry
� Continued Exposure to Raids Due to Workforce Composition
� Increased ICE Focus on Criminal Prosecution and Asset Forfeitures
� Increases in Identity Theft
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Recent ICE Enforcement Activity
April 2006 – New Interior Enforcement Strategy Announced
Goals:� Target employers who knowingly employ unauthorized workers by
bringing criminal charges against them.� Eliminate SSN abuse.
Result: � An increase in worksite raids, arrests, and federal charges related to
illegal employment of unauthorized workers.
Common Theme: � Many of targeted employers had high number of employees with
mismatched SSNs.
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Recent ICE Enforcement Activity
Statistics: Arrests for criminal violations in FY 1999 = 24
Arrests for criminal violations in FY 2006 = 716
Arrests for criminal violations in FY 2007 = 863
During the first three quarters of FY 2007, ICE obtained criminal fines, restitutions, and civil judgments in excess of $30 million.
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Recent ICE Enforcement ActivityEMPLOYERS & LAWYERS, WORKING TOGETHER
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Recent Enforcement Cases
Koch Foods – August 2007
� Criminal search warrants in Ohio and Illinois
� Arrest of more than 160 employees for immigration violations
� Two-year ICE investigation
� Some evidence that Koch may have knowingly hired illegal aliens at its poultry processing and packaging facility in Ohio
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Recent Enforcement Cases
Quality Service Integrity Inc. (QSI) – April 2007
� Sanitation company for food-processing industry
� 49 illegal aliens administratively arrested
� 13 managers and employees arrested on criminal charges:� Aggravated identity theft and aiding and abetting aggravated identity theft in connection with alleged hiring of illegal aliens
� Harboring illegal aliens
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Recent Enforcement Cases
Fresh Del Monte Produce – June 2007
� Criminal search warrant executed
� Arrest of more than 160 illegals
� Six-month investigation into fraudulent documents obtained at American Staffing Resources
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Recent Enforcement Cases
George's Processing Inc. – May & June 2007
� 28 employees indicted on criminal immigration violations: aggravated identity theft, falsely claiming to be US citizens, reentry after deportation, Social Security fraud, illegal alien in possession of a firearm
� 136 persons arrested and charged with administrative violations
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Recent Enforcement Cases
Petit Jean Poultry, Inc. – July 2007
� 119 illegal aliens arrested for identity theft
� stemmed from an ICE investigation leading to the December 2004 arrest of a former Petit Jean employee for multiple counts of selling identity documents and SSN cards
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Tips for Avoiding I-9 Liability
� Implement a company-wide comprehensive written I-9 compliance policy
� Designate one person who will have ultimate authority over the I-9 compliance program
� Make the I-9 policy part of the overall personnel and hiring policy
� Provide clear guidance to hiring managers and other personnel on I-9 procedures
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Tips for Avoiding I-9 Liability
� Do not complete an I-9 before offering the position to the prospective hire
� Conduct self audit and make corrections
� Keep a tickler system
� Implement a payroll system that requires a completed I-9 before placing an employee on the payroll
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Tips for Avoiding I-9 Liability
� Keep I-9 files separate from personnel files
� Remove I-9s that exceed the retention rule
� Promptly respond to SSA No-Match letters
� Consult with immigration counsel
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Thank you for your time.
Bernhard Mueller
(919) 789-3177