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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Enriched or Entangled? - Opportunities and Risks In Hiring Foreign Workers (Part II)
by Angelo A. Paparelli and J. Ira Burkemper

Biography

3. Take an active role in selecting a competent immigration lawyer to assist the company and the alien in applying for the work visa or green card.
All too often companies leave the selection of the immigration lawyer (or worse yet, an unlicensed immigration consultant or "notario") to the foreign worker, and expect the worker to pay all fees and costs. This approach is penny wise and pound foolish. When an employer agrees to allow a prospective or current foreign worker to find an attorney (or unlicensed service provider) and apply for work authorization, the employer may well be asking for trouble. Although the rules of professional responsibility in most states would ordinarily impose on the attorney in this situation an ethical duty to both the foreign worker and the employer, human nature is such that some attorneys may be tempted to concentrate on advocating the interests of the foreign worker, the party paying the bills, and consider the best interests of the employer to be a lower priority. This concern is compounded, given that foreign employees' visa petitions are all too often reviewed and signed by subordinate management personnel who may overlook or be unaware of immigration-compliance obligations.

Thus, the employer should participate actively in the selection of immigration counsel. In this effort, the employer should seek referrals to only qualified immigration lawyers who spend all or a substantial part of their professional time in business-related immigration representation. Three sources of referrals are the respective Boards of Legal Specialization of the State Bar of California, and of Texas, which maintain special designation programs for Certified Specialists in Immigration and Nationality Law, and the American Immigration Lawyers Association (a bar association of more than 7,500 attorneys and law professors who practice and teach immigration law), which sponsors an immigration lawyer referral service. These organizations can be accessed at the following links: http://www.calsb.org/ls/countytx.htm; http://www.tbls.org/Directory/; and http://www.aila.org/

4. Think twice before requiring foreign employees to pay the legal fees for obtaining work visas.
Some employers expect the foreign worker or job candidate to assume responsibility for paying all legal fees and costs for processing the paperwork involved with obtaining the necessary work authorization or Green Card from the Immigration and Naturalization Service ("INS") and with other federal agencies that administer U.S. immigration laws and regulations. However, the employer should exercise extreme caution in agreeing to such an arrangement; even employers who do not pay immigration-related legal fees are exposed to liability if immigration laws are not followed. The dangers are perhaps best illustrated by recent changes to laws and regulations governing the H-1B (specialty occupation) and other comparable work-visa categories.

U.S. immigration laws require employers of H-1B workers to document that they are paying these alien employees at least as much as similarly qualified U.S. citizens performing similar job duties in the area of employment (the "prevailing wage"). The Department of Labor ("DOL") has interpreted these laws to require an employer to treat lawyer's fees, paid for the lawyer's assistance in obtaining approval of the H-1B visa petition, as a business expense that may not be shifted to the foreign worker. Therefore, if an employer chooses to allow the alien to pay the attorney's fees, the DOL will subtract the amount of the attorney's fees from the alien's salary when calculating whether the employer is meeting its obligation to the alien to pay the "required" wage (the higher of the prevailing wage or the actual wage paid to similarly qualified employees at the employer's place of employment). For example, if the alien is earning $51,000 in a job in which the prevailing wage is $50,000, the employer will be violating H-1B prevailing wage rules if the alien paid his or her own attorney's fees and these fees amounted to more than $1,000.

Moreover, by virtue of the American Competitiveness and Workforce Improvement Act of 1998, employers are prohibited from shifting to H-1B workers the $1,000 supplemental filing fee for the worker's petition, and the commentary to the DOL's H-1B regulations makes clear that the employer is likewise barred from requiring the employer to pay the $110 base filing fee. Further, at a recent bar conference, a DOL official (speaking as an individual and not as a spokesperson for the agency), offered the view that the DOL would likely challenge any employer that requires or allows the H-1B alien to pay the new $1,000 INS Premium Processing Service fee. Violations of these laws can be costly; the DOL is authorized to impose substantial fines, back pay awards and other penalties. Hence, to protect their interests, employers would be well advised to swallow hard, pay the lawyer's fees and avoid entanglement with the DOL, and better control the legal representation in H-1B and other immigration matters.

Conclusion. In today's fiercely competitive global market for products and services, notwithstanding the current economic climate, the lack of an available supply of highly skilled workers in critically needed positions all but requires that successful U.S. businesses seriously consider opportunities for hiring foreign labor. We recommend that employers make a commitment to learn more about U.S. immigration laws and procedures, and thus minimize the risks associated with negligent or willful violations. Moreover, as managers and executives learn the requirements for compliance with immigration laws, they will be better equipped to develop and implement internal policies to ensure compliance with immigration laws. By considering the suggestions in this article, and relying on the advice of competent immigration counsel, U.S. employers will avoid becoming snared in the tangled web of U.S. immigration laws while ensuring that they are employing the best workers of the world.

For Part I of the article, click here.

Copyright © 2001 Paprelli & Partners. All rights reserved. Reprinted with permission.



About The Authors

Angelo A. Paparelli (aap@entertheusa.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 (jib@entertheusa.com) 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.

Copyright © 2002 American Immigration LLC, ILW.COM


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