Current Immigration Issues Facing the HR Professional

1. Presented by: Roy J. Barquet, Esq. Tuesday, November 8, 2005 Current Immigration Issues Facing the HR Professional

2. BUSINESS VISAS: PROCEDURALnot substantive changes

3. Immigration Law ≠ Forms Statutory and regulatory complexities have ALWAYS existed, now are adhered to

4. DEPARTMENT OF STATE Worldwide Business Visa Center opened July 15, 2005 www.state.gov

5. Non-Immigrant H:Specialty occupation L: Intra-company transferee E: Treaty trader (E-1)or treaty investor (E-2) O: Extraordinary ability Immigrant Intra-company manager/ executive transferees Extraordinary ability Premium investors Labor certification beneficiaries VISA CATEGORIES:

6. H Visa • Hvisa sponsor MUST pay all filing fees and attorney fees • Ready solution at hand • Foreign entity may pay H-1B visa beneficiary’s salary • You get what you pay for • This fiscal year’s visas are already taken, except for foreign nationals with U.S. Master’s degrees

7. Pending Bill • Recapture approximately 300,000 unused H-1B numbers dating back to FY 1991. • Effectively raising the cap from 65,000 to 95,000 for at least 10 years. Impose a new fee on the recaptured H-1B visas so that the fees on the original 65,000 H1-B allotment remain unchanged but the additional 30,000 annually carry an additional $500 fee. How will they differentiate?

8. L Visa Features of Pending Bill House Imposes a new $1500 fee on L-1 visas Senate Imposes a new $750 fee on L-1 visas

9. Did you know? You can obtain an L visa for a foreign transferee who never worked in your foreign “office.”

10. Retrogression Over-subscription for existing immigrant, employment-related visas

11. Immigrant Visa Features of Pending Bill • Imposes a new $500 fee on immigrant visa petitions for EB-1, EB-2, and EB-3 categories. • Recaptures unused employment-based visas from prior years for immediate allocation of up to 90,000/year. • Exempts spouses and minor children from accounting against the annual cap on employment-based immigrant visas. • Allows individuals to apply for adjustment of status before an immigrant visa is deemed currently available.

12. Non-Immigrant H:Specialty occupation L: Intra-company transferee E: Treaty trader or treaty investor O: Extraordinary ability Immigrant Intra-company manager/ executive transferees Extraordinary ability Premium investors Labor certification beneficiaries VISA CATEGORIES: L-1A L-1B

13. IMPACT OF 9/11 AND THE HOMELAND SECURITY ACT • Criminal and “prior-entry” background checks at service centers, ports of entry and consulates • Increase in requests for additional evidence • Renewed interest in visa beneficiaries from politically or economically challenged countries • Delay in processing IRS employer identification numbers • NSEERS (National Security Entry-Exit Registration System) • Restrictive culture

14. DEPARTMENT OF LABOR(DOL)PERM (PROGRAM ELECTRONIC REVIEW MANAGEMENT SYSTEM) • Non-immigrant → Immigrant (permanent residence) • Effective March 31, 2005 • Election must be made for old cases • (did you reply timely?) • Recruitment campaign: 2 months - external job posting: need not include salary - internal job posting: must include at least salary range

15. PERM (continued) • Initial filing (DOL Form ETA – 9089) submitted electronically • DOL response in 45 to 60 days: “aspirational” • Audit Letters →save resumes → save interview notes → save job postings • DOL’s decision delay after reply???

16. HELPFUL HINTS: • Don’t forget: It’s a prospective job • Go easy on restrictive requirements • H visas require long-term planning at time of initial filing • Remedy for “boilerplate” H visa job description: tighten job title • Don’t forget: approved labor certifications belong to the employer

17. Presented by:Roy J. Barquet, Esq.