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Immigration Compliance and Strategies for Employers

02.02.2011

Since the election of President Barack Obama, national policy debates have largely been focused on significant agenda items such as the economy and health care reform. Seemingly lost in the federal debate over the last couple of years is a meaningful discussion regarding comprehensive immigration reform, another significant agenda item touted by President Obama prior to his election. Though many continue to anxiously await federal legislation, there has been other meaningful activity in this arena. For example, Arizona enacted a controversial law that directs state and local law enforcement officers to take an active role in enforcing federal immigration law. The town of Fremont, Nebraska, enacted an ordinance that would prohibit businesses and landlords from hiring or renting to illegal immigrants. Moreover, despite the appearance of lack of attention at the federal level of government, the Obama Administration has embarked on a significant (and well-funded) initiative to uncover violations of existing federal immigration law perpetrated by employers. 

In light of this recent activity, many in the business world and the media focus only on the "controversial" aspects of federal immigration law and policy or on various compliance-related aspects. Although individual work authorization, identity, and related issues necessarily touch every business with employees, it has been our experience that many businesses are simply unaware of existing immigration programs that could potentially benefit U.S. businesses. In today’s global economic environment, businesses must have an understanding of their options for connecting international workers with other workers, and to partner with competent legal counsel to pursue available options when necessary. The purpose of this article is to provide a high-level summary of some common work-related immigration programs and to address ways in which employers can take advantage of the same for the benefit of their businesses.

Making a "Broken" System Work for Your Business 

You have an employee working for your London-based subsidiary that needs to work out of your Omaha office. How do you make this happen? You hire a highly qualified graduate from a local university who is a foreign national and will require sponsorship. What are your options? Federal immigration law provides several programs that enable employers to legally engage foreign workers in the U.S. Below is a summary of some of the common nonimmigrant worker programs, as classified by their commonly referred to "letter" notations.

H-1B Nonimmigrant Visas – Permits the employment of foreign nationals in "specialty occupations" for an initial period of up to three years. Generally, an occupation must require at least a Bachelor’s degree (or its equivalent) as the minimum educational requirement for entry into the occupation in order to be classified as an "H-1B caliber" occupation. The H-1B program allows employers to retain talented individuals who may currently work outside the U.S., or individuals who seek employment in the U.S. following completion of academic studies. H-1B status also provides a path to employment-sponsored permanent resident status (also known as an employment-sponsored "green card"). Although the number of H-1B visas issued each year is limited, and there are restrictions regarding an individual’s total period of stay in H-1B status, H-1B visas are potentially the most versatile and businesses of all types may be able to utilize this visa program.

 L-1 Nonimmigrant Visas – Allows for the intra-company transfer of certain individuals who have been employed abroad with a foreign affiliate for at least one year in the three years prior to the petition, and who are coming to work for an affiliated company in the U.S. in an executive, managerial, or specialized knowledge capacity. The L-1 program provides an avenue for businesses operating on a global scale to facilitate movement of key personnel. Similar to the H-1B program, the L-1 program also provides a path to employment-sponsored permanent resident status.

TN Nonimmigrant Visas – Created by the North American Free Trade Agreement ("NAFTA"), the TN visa category provides an additional option for U.S. employers seeking to retain talented individuals from Canada or Mexico. Similar to H-1B visas, TN visas are generally reserved for positions requiring some sort of college education or licensure in order to perform the duties of the position. However, in contrast to H-1B visas, there is no "cap" on the amount of TN visas that can be issued in any given year, and there is no maximum limit on a particular individual’s stay in the U.S. in TN status. As such, it has been our experience that companies with operations in the U.S. and Canada or Mexico find this program useful for facilitating movement of employees from their foreign-based locations to those in the U.S.

H-2A & H-2B Nonimmigrant Visas – Temporary employment of foreign nationals for the performance of agricultural labor or services or nonagricultural services or labor is permitted under the H-2A and H-2B programs, respectively. The H-2 programs are extremely useful for business that have significant seasonal or other temporary increases in workload but cannot justify employment of a full-time workforce on a year-round basis. In essence, these programs make it possible for an employer to supplement its regular/permanent workforce with temporary assistance. Agricultural businesses, construction businesses, and other businesses whose workflow is variable may be able to take advantage of these visa programs. The H-2 programs, where applicable, can provide an excellent alternative to the establishment of questionable independent contractor relationships for a business seeking to avoid the expense and other issues involved in long-term employment relationships.

Employer-Sponsored Immigrant Visas – As alluded to above, several "nonimmigrant" programs may provide avenues to pursue permanent "immigrant" visas under the sponsorship of an employer. There are two primary avenues for foreign nationals to obtain lawful permanent resident status: family-based petitions and employment-based petitions. Retention of foreign employees working in various nonimmigrant classifications on a permanent basis often becomes a goal of employers. Depending on the underlying nonimmigrant status of a particular worker, there may be several options to consider with respect to an employment-based immigrant visa petition.

Other Visa Programs – In addition to the programs summarized above, there are several other visa programs tailored for particular industries and categories of workers. In many situations, employers are able to find an option applicable to their business.

Conclusion

As a result of the global nature of today’s economy and the increasingly vocal demands for reform of federal U.S. immigration law, business-related immigration matters will continue to be of great concern to employers in the U.S. From flat-fee arrangements to proactive policy implementation and training, at Koley Jessen we have developed creative ways to partner with employers to obtain desired immigration-related benefits and solutions to workforce problems, and we look forward to developing additional solutions for the challenges that lie ahead.

By Ryan J. Sevcik

Attorneys

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