Enriched or Entangled? - Opportunities and Risks In Hiring Foreign Workers (Part I)
In the aftermath of September 11, as U.S. businesses get back to business, American companies must still confront two generally recognized facts of economic life: (1) to remain competitive in today's global marketplace, U.S. employers must hire and retain the most talented, well-educated employees; and (2) to find the best candidates for the most challenging positions, employers often must consider persons born outside the United States.
As U.S. employers discover the mother-lode of available talent in the international marketplace, however, many businesses tend to stumble. They are increasingly experiencing a painful learning process as they rush headlong into recruiting and hiring foreign workers without first carefully studying and complying with U.S. immigration laws and regulations. Rather than quickly reaping the benefits of employing bright and motivated foreign workers, these businesses may encounter needless red tape and expense, bureaucratic delays, legal mumbo-jumbo, negative press, and the risk of substantial fines and discrimination suits.
How can businesses avoid these problems and enjoy the benefits of employing talented foreign citizens? This article will offer a list of suggestions.1
1. Spend the time to learn about work visas or get competent professional help.
As an example, the L-1 visa for "Intracompany Transferees" is one of the most employer-friendly work visas available to U.S. businesses that have foreign offices, subsidiaries, affiliates, or a foreign parent. To qualify for L-1 intracompany transferee status, an alien must generally have worked for the affiliated entity abroad for at least one year in the previous three in an executive, managerial, or "specialized-knowledge" capacity. Congress and the Bush Administration recently approved legislation that reduced the amount of work experience abroad required for Intracompany Transferee classification to six months if the company has an approved blanket L-1 petition. See HR 2278, signed by President Bush on January 16, 2001. A blanket L-1 petition allows multinational corporations with an office in the U.S. to obtain one approval from the Immigration and Naturalization Service ("INS") under which multiple managers,executives and specialized-knowledge "professionals" (those with a bachelor's or higher degree related to their specialized knowledge) can enter the U.S. under streamlined procedures). The definition of manager for intracompany transferee purposes includes not merely managers of personnel but also individuals managing a department, function, or component within an organization, even if such "function managers" do not directly supervise other employees. The definition of specialized-knowledge is also rather broad, and includes any foreign employees who have "special knowledge of the company product and its application in international markets" or "an advanced level of knowledge of processes and procedures of the company."
With the enactment of HR 2278, Congress and the Administration bestowed another benefit on individuals who enter the United States in L-1 Intracompany Transferee status. The new law grants spouses of L-1 employees the right to apply for work authorization while they are in the United States. A similar bill, HR 2277, also signed by the President on January 16, 2002, confers eligibility to apply for employment authorization on the spouses of E-1 (Treaty Trader) and E-2 (Treaty Investor) visaholders - two categories available not only to individuals of selected treaty countries who engage in trade or investment but also to key employees (executives, managers and certain essential workers) with the proper treaty nationality. Although INS has not yet issued regulations to implement these changes, spouses of E-1, E-2 and L-1 workers will soon be eligible to receive this coveted benefit - one that is generally not available to spouses of temporary workers in most other nonimmigrant categories, such as the H-4 spouse of an H-1B (Worker in a Specialty Occupation) unless the spouse has been accorded a separate nonimmigrant classification that would permit them to work.
Although the H-1B visa classification does not provide a basis for spouses to work, the category remains a popular employment-based nonimmigrant option for the principal H-1B alien (albeit not quite as popular as in the height of the pre-2001 economic boom years). The list of qualifying H-1B employees can range broadly from engineers, scientists, computer professionals, fashion models and graphic designers to bankers, lawyers, accountants and teachers, among others. Butchers, bakers and candlestick makers are probably not eligible, however, because INS regulations require that the position involve the theoretical and practical application of highly specialized knowledge; in addition, at least a bachelor's degree in the specific specialty (or progressively responsible specialized experience that is equivalent to at least a baccalaureate) must be required for entry into the occupation in the United States. The H-1B visa is also quite useful for prolonging by up to six years (or more in certain instances) the period of work permission for talented foreign nationals, including students who graduate from U.S. universities and are encountered in an employer's on-campus recruiting efforts.
While many occupations may qualify for H-1B classification, this visa category places substantial burdens on employers. H-1B employers are required to pay at least the prevailing wage in the community, maintain the working conditions of U.S. workers, offer foreign workers an equal opportunity for benefits, post notices disclosing the rate of pay and the intention to introduce foreign workers to the job site, maintain documents for public inspection, and face investigation by the U.S. Department of Labor and penalties for noncompliance with Labor Department regulations (including [possible] civil monetary fines, back pay and debarment from sponsoring foreign workers for a year or more). These burdens and penalties can be avoided, however, if your company carefully develops a plan for compliance.
The L-1 and H-1B visas are merely two of the most frequently used categories. Other business or work visas are available for trainees, investors, entrepreneurs, researchers, scholars, writers, chefs, student workers, technicians, investment advisors, commodities brokers, consultants, and certain part-time workers, to name a few. A wide variety of further options exists under current immigration law, but these options may become more limited for many foreign nationals in the near future as INS and other government agencies charged with enforcing immigration laws implement recent anti-terrorist legislation and scrutinize applications for immigration benefits more meticulously. In addition, bills making their way through the legislative process could, if they are enacted into law, significantly impact legal immigration to the United States and change the way U.S. corporations do business. We recommend that your company consult with an experienced immigration attorney to plan how to make the best use of existing work visa categories before they are restricted or eliminated, thereby "grandfathering" in your foreign workers, and to devise a strategy to cope with the changes in immigration law that are looming on the horizon.
2. Create internal procedures to assure that your company complies with immigration laws.
A company's internal procedures for immigration sponsorship should, at a minimum, identify the executive or department responsible for approving the sponsorship decision and the signing of documents that are submitted to various government agencies, should prescribe in general or specific terms the standards the company uses to determine which of its current and prospective foreign employees to sponsor for work permits or permanent residence, and provide a process for vetting and approving the release of required financial, business or personnel data that will be disclosed to the government in the immigration applications.
Disclaimer: The foregoing is general information provided to the public on a subject of great interest to U.S. employers and H-1B workers. It is intended merely as a general review of a complex and confusing subject for which there are very few clear and reliable answers. The information is not intended as legal advice and may not be relied on as such. By providing to the public the general information below, no attorney-client relationship is created. The legal outcome in a given case will completely depend on all of the relevant facts in a given case and thus will vary from case to case. For legal advice and representation, the readers are cautioned to consult a qualified attorney who practices immigration law.
Copyright © 2001 Paprelli & Partners. All rights reserved. Reprinted with permission.
1This article is written as a brief discussion of some of the traps and opportunities that can arise in the world of employment-based immigration. It is intended primarily for the non-lawyer business community. The article is not intended as legal advice, nor should it be relied upon as such. For legal advice in a given factual situation, the reader is cautioned to retain the services of a competent attorney who practices U.S. immigration law.
2 The courts have observed that the immigration laws and procedures are complicated and difficult to comprehend:
"The statutory scheme defining and delimiting the rights of aliens is exceedingly complex. Courts and commentators have stated that the Immigration and Nationality Act (the "INA") resembles 'King Mino's labyrinth in ancient Crete,' Lok v. I.N.S., 548 F.2d 37, 38 (2d Cir. 1977), and is 'second only to the Internal Revenue Code in complexity' Castro-O'Ryan v. I.N.S., 821 F.2d 1415, 1419 (9th Cir. 1987) (quoting E. Hull, Without Justice for All 107 (1985)". Chan v. Reno, 95 Civ. 2586, (S. Dist. N.Y., LEXIS 3016, 1997).See also, Castro-O'Ryan v. United States Dep't of Immigration & Naturalization, No. 86-7502, 847 F.2d 1307 (9th Circuit, 1987).
About The Authors
Angelo A. Paparelli (email@example.com), Certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization, has been practicing business-sponsored immigration law for over 20 years. He is the managing partner of Paparelli & Partners LLP ( www.entertheusa.com), a firm in Irvine, California that practices exclusively immigration and nationality law. Mr. Paparelli is a nationally recognized speaker, published author and leading expert on cutting-edge business-related immigration issues, including the immigration consequences of mergers, acquisitions, reorganizations and other business changes, consular visa practice, audits of employers' compliance with immigration and labor regulations, and employment-based work visas. His experience also includes the U.S. immigration aspects of international tax and estate planning. From 1991 to 1996, Mr. Paparelli served as co-Chairman of the Immigration and Nationality Law Committee of the American Bar Association's Section on International Law and Practice. He also served from 1988 to 1994 as an elected governor on the Board of Directors of the American Immigration Lawyers Association. He is named in the 1990-2002 editions of Best Lawyers in America under Immigration Law.
J. Ira Burkemper (firstname.lastname@example.org) is a partner of Paparelli & Partners LLP (www.entertheusa.com), a firm in Irvine, California that practices exclusively immigration and nationality law. He received his J.D. from the University of Southern California in 1994 and has a business degree (Master of International Management) that he received from the American Graduate School of International Management (Thunderbird) in 1985.