The immigration programs of U.S. employers are often managed by human resources or global mobility departments; however, it is crucial that in-house counsel also play a role in ensuring that their immigration programs are smoothly run and legally sound.Complex regulations, government investigations and more restrictive agency interpretations all contribute to a current climate that requires vigilance and involvement by counsel. This article discusses three challenges that are among the greatest right now in terms of recruiting and hiring needed talent from abroad and otherwise complying with the immigration laws of the United States.
Numerical Limits
In order for U.S. employers to benefit from the H-1B visa program or successfully sponsor employees for U.S. residency, they must consider the annual H-1B and residency quotas that apply in most cases. This means being aware of all employees that possess temporary work authorization and planning for temporary and permanent work permit sponsorships on at least an annual basis.
H-1B Work Permits
The H-1B visa category permits U.S. employers to hire foreign professionals for up to six years in positions that require at least bachelor's-level academic and professional training in specific fields of study. The H-1B category carries strict wage protections for U.S. workers and, most notably, is limited each year by quota. While generally a great option that allows U.S. employers to attract top foreign talent,the 65,000 numerical limit (with another 20,000 reserved for U.S. advanced degree graduates) requires employers to plan far in advance so that a visa number is obtained before the quota is exhausted. Presently, for example, H-1B visas have been unavailable since January 2011, and the new annual allotment of visas will not become available until October 2011. Since the H-1B filing season opens each year on April 1 (permitting employers to apply for H-1B visa numbers that will become available on October 1), corporate counsel should work closely with HR and outside immigration counsel to conduct an annual assessment in January regarding H-1B needs that might arise in the coming year and then plan accordingly so that H-1B visa petitions can be filed as early as possible. These assessments should begin with a review of your existing workforce in order to identify employees with expiring work authorization, e.g., foreign students pursuing training at your company who might require an extension of their U.S. work authorization using the H-1B category. In addition, during those months of the year when H-1B numbers are not available, recruiters should be aware of those instances when the H-1B quota will not apply to a new hire. This includes many job candidates who have held H-1B work authorization in the past, as well as certain candidates from countries with which the United States has entered into free trade agreements, including Canada, Mexico, Singapore, Chile and Australia.
U.S. Residency Quota
The issue of numerical limits also arises when U.S. employers wish to sponsor employees - often holding H-1B visas - for U.S. permanent residency. Employment-based residency is limited by annual quota in two respects: there is an overall quota of approximately 140,000 (which includes employees and their dependents); and also a per country quota, which typically permits no more than 7 percent of the overall quota to be used for natives of any one country. For the past several years this quota system has resulted in visa backlogs - known as retrogression - of at least five (and potentially many more) years for natives of India and China, as well as for natives of other countries who fill U.S. jobs that do not require an advanced degree. As with the H-1B quota, planning ahead for these sponsorships is key, as the immigration statute permits a waiver of the normal six-year limit for H-1B visa holders in certain instances where the U.S. residency sponsorship process commences early enough. Planning ahead and starting the sponsorship process without too much delay often also results in higher levels of employee morale and retention, not to mention the opportunity to pursue alternate strategies if the first attempt at residency sponsorship, which typically requires evidence that qualified U.S. workers are unavailable in the occupation and location, is not successful.
Stepped-Up Government Investigations And Audits
More than ever before, the federal government is stepping up its enforcement efforts. USCIS now has squads of fraud and security auditors - known as Fraud Detection and National Security (FDNS) officers - visiting companies, primarily to verify that information contained in immigration petitions is accurate.Enforcement visits from Immigration and Customs Enforcement (ICE) are also increasing in record numbers, with steep and often widely publicized penalties and fines against employers for failure to comply with federal Form I-9 regulations.
FDNS Visits
As the Department of Homeland Security (DHS) says, "Be ready." In terms of the FDNS audits that DHS is currently undertaking, ensure that immigration counsel is carefully managing the flow of information that finds its way into your company's government filings, which are typically signed off on, under penalty of perjury, by your HR or global mobility departments.In addition, make sure that controls are in place to monitor changes in the job duties, wages and location of foreign workers, especially H-1B workers. Immigration regulations typically require employers to notify the government by filing an amended visa petition when there are material changes to the employment described in the initial filing, and FDNS officers routinely report suspected discrepancies to DHS, which has the authority to revoke previously approved petitions.
As FDNS visits almost always occur without notice, companies that sponsor foreign professionals for U.S. work permits should have readiness processes in place, whereby reception staff and HR teams are alerted that these visits are occurring and are neither overly alarmed nor overly complacent.FDNS officers just about always want to speak with the foreign national employees and very often their managers, as well as the HR manager who signed the work permit application. Thus, it is important that these individuals, as well as outside immigration counsel, where feasible, are informed right away when these visits take place so that the FDNS officers can receive the information they need and quickly and favorably conclude their interviews with minimal impact to your business operations.
I-9 Audits
With respect to ICE I-9 audits, which enforce the federal requirement that all employers verify the identity and employment authorization of new employees at the time of hire, the best practice is to provide I-9 training and perform internal audits on a regular basis.Outside counsel may be helpful with this in terms of providing training to HR and other personnel who perform onboarding functions. Training should focus on helping teams in completing the I-9 form in a compliant manner; identifying proper documents; creating efficient tickler systems for reverifying expiring work authorization; and purging the I-9 forms of terminated employees when the law permits. Training should also cover best practices for avoiding citizenship status discrimination and what is known as "document abuse." Document abuse, which the U.S. Department of Justice routinely enforces, prohibits employers from asking certain employees to provide extra or specific documents to show their employment authorization because the employer believes the employees look or sound "foreign."
In addition to good training, performing periodic but regular internal audits can reduce exposure to stiff penalties and bad press a great deal. These audits need not be overly burdensome or expensive. For instance, inspecting a small percentage of a company's I-9 forms, so long as they are chosen randomly, can provide a valuable window into your level of I-9 compliance and help you determine where additional training might be needed. Senior ICE officers have also stated publicly that the agency is more likely to exercise favorable discretion when setting monetary penalties in cases where employers have taken steps to review and correct noncompliant I-9 practices prior to a government investigation.
Some employers also choose to participate in the Department of Homeland Security's E-Verify program, which permits employers to request and receive electronic confirmation from the government that a new employee is eligible to work in the United States. While E-Verify participation has become mandatory for certain federal contractors and other employers that do business in states that require participation in the program, many employers have voluntarily chosen to use E-Verify in order to benefit from a rebuttable presumption that an employee for whom E-Verify responds "employment authorized" is work authorized.This presumption means that ICE generally cannot charge an employer for knowingly hiring an unauthorized worker unless the government can prove that the employer knew the employee had a different identity or lacked work authorization.
Transferring Personnel From Foreign Affiliates
Perhaps the biggest challenge facing counsel - one that some immigration practitioners would argue has reached crisis proportions - is the ability of companies to bring in their existing professional talent from abroad, particularly, but not exclusively, in the IT consulting industry.In 1970 Congress created the "L-1" visa category so that global companies could more easily transfer their foreign executives, managers and other key personnel to the United States in an expedited manner. While adjudications for senior managers and executives have remained relatively consistent, both DHS and the State Department, which is responsible for processing visa applications at U.S. embassies and consulates abroad, appear to have greatly narrowed their interpretation of what constitutes a "key" employee of a foreign affiliate. This restrictive approach to L-1 visa adjudications - for those known as "specialized knowledge" workers - has resulted in extensive document requests from the government before approving cases and, in some instances, outright denial of cases.
For IT consulting companies and other employers with business models that necessitate the placement of employees at third-party work sites, agency scrutiny has become aggressively negative. Much of this scrutiny is the result of a stretched agency interpretation of the Visa Reform Act of 2004, an anti-"job-shopping" law that prohibits employers from placing L-1 specialized knowledge workers at third-party sites where they are not supervised and controlled by or working in the area of expertise of their petitioning employer. Unfortunately, many agency adjudicators are treating IT services companies as if they are job shops when in fact they are sophisticated global companies that are using their decades-built technologies and service practices to provide comprehensive and customized global IT services and solutions to other vitally important and economy-sustaining U.S. companies.
As a result of this scrutiny, successful government filings must be highly organized, comprehensively prepared, and properly documented. When L-1 visa applicants appear at U.S. consulates for their visa interviews, they must be prepared to clearly and succinctly explain to the reviewing officer what distinguishes them and their skill sets from others in the occupation and how their transfer to the United States will offer "key" benefit to their employer's U.S. operations. Even in the most clearly approvable cases, visa applicants, often speaking in their second language and appearing before a U.S. government officer for the first time, may feel intimidated and lack confidence, so thoughtful preparation for these applicants is very important. Good immigration counsel will also work closely with HR to examine the merits of each transfer within the context of your global business and then prepare petitions that highlight and help agency decision makers quickly identify the approvability of each matter.
Access to top foreign talent is more important than ever as U.S. companies seek to compete in the global economy. While overall unemployment is high, our clients repeatedly confirm that filling jobs at the professional level remains challenging, especially when seeking candidates with academic backgrounds in science, technology, engineering or math. Having a well-organized and compliance-focused immigration program will result in great advantage to any company that wishes to enhance its competitiveness in the global marketplace.
Published October 4, 2011.
