By Brandon Meyer
Immigration Associate

Bad economic news seems to be everywhere. Stories of banking crises, bailouts, rising unemployment, plummeting securities and housing prices, rising inflation, rising gas and food prices, recession, depression, and the end of prosperity have all become ubiquitous over the past couple of months. The bottom and the subsequent rebound are nowhere to be seen. Now take a deep breath, exhale, and relax. At the time this column was written, I was on a flight from San Diego to Austin packed with business travelers. Oil and other commodity prices have fallen back in recent months after reaching record highs. There are signs that credit markets are beginning to function again. Insofar as pundits cannot oversell the good times (remember Dow 36,000?), pundits cannot resist the temptation to oversell doom and gloom (remember predictions last summer that oil would reach $500 a barrel?). An October 26, 2008 article in the New York Times entitled “Forecasters Race to Call the Bottom to the Market”, explains this phenomenon in greater detail.

The outcome to recent manifestations of economic instability will hopefully be much more mundane. We will all muddle through somehow, although this may seem hard to reconcile for people under the age of 30 who have never really lived through a period of economic instability. Economic growth may be slow to non-existent for the foreseeable future, but full-scale economic collapse is unlikely.

What impact does this economic uncertainty have on immigration for employers and employees alike? Many employers may contemplate downsizing in order to cut costs or reduce employee work hours (“benching”) or pay. While these strategies may be necessary from a business perspective, employers need to keep in mind the potential impact on their foreign national employees. Employers with E-3 Australian and H-1B employees must ensure that any downward revision of wages received by these employees do not fall below the figure listed on the Labor Condition Application (“LCA”) that was obtained on their behalf. Failure to comply with wage obligations of an LCA could be considered noncompliance by the U.S. Department of Labor and could lead to negative consequences for the company. Employers are also required to offer H-1B employees who have been involuntarily terminated the cost of return transportation to their last place of foreign residence. This requirement does not extend to E-3 or TN workers or to dependents of H-1B employees. It is important to consult your labor or immigration attorney prior to terminating, benching, reducing working hours, or reducing wages for foreign national employees.

Furthermore, health care providers must ensure that offers of permanent employment to immigrant nurses also remain at a level equal to the prevailing wage of the Immigrant Visa petition (“IV”) that was filed on their behalf.

The upside for employers is that if unemployment continues to rise, the opportunities for recruiting highly skilled, highly qualified workers increases. Recruiting top-notch workers now places employers in a good position to capitalize on better times in the future.

Some industries, such as banking and finance, will face tough times for the foreseeable future. Some companies, such as Lehman Brothers, have already, or will disappear in the future. Others, such as Wachovia, will be purchased and subsumed into their new owner’s business. Other industries, such as health care, are more insulated from economic slowdowns, and in fact may be poised for greater growth as Baby Boomers enter their golden years.

Foreign national employees generally feel a greater sense of insecurity during periods of economic uncertainty, as they may believe that their immigrant status makes them more vulnerable to selection for any company downsizing. How companies manage this (mis)perception is critical for maintaining employee morale and retention.

In addition to the LCA and return transportation protections for H-1B employees, there are a number of other protections for foreign national employees. Chief among them are provisions allowing H-1B employees to change employers upon the filing of a new H-1B petition, provided the employee is maintaining H-1B status. Upon termination, H-1B employees generally have ten days to depart the United States. H-1B change of employers provisions are helpful in allowing an H-1B employee to change employers in the wake of corporate downsizing, provided that the H-1B employee is still on the books of the initial company at the time of filing of the H-1B petition by the new employer. The H-1B employee can commence employment with the new company upon proper filing of the new H-1B petition. Please consult your immigration attorney prior to terminating an H-1B employee or hiring a new H-1B employee pursuant to the H-1B change of employer provisions.

An even more important protection for foreign national employees rests in the Adjustment of Status (“AOS”) portability provisions of the American Competitiveness in the 21st Century Act (“AC-21”). A foreign national with an AOS application pending for 180 days or more based on an approved or pending (with the proviso that the petition was ‘approvable when filed’) IV petition on Form I-140, that has not been withdrawn by the petitioning company or otherwise revoked by USCIS, may seek employment with a different employer in a ‘same or similar’ occupation that the I-140 petition was filed. The foreign national should notify USCIS of the change of employer, along with a description of how the new job opportunity is the ‘same or similar’ to the job opportunity described in the I-140 petition. In the absence of governing regulations, there is a lot of grey area and wide divergence of practice for how employers and employees handle AOS portability situations. However, USCIS expects to publish regulations governing AC-21 that purport to address these issues in the near future. Please consult your immigration attorney when encountering employees with possible AC-21 issues.

The next economic boom is always just around the corner. Strong companies will emerge from this period of economic uncertainty stronger and ready to seize upon new opportunities. Employees can also emerge stronger and wiser from the experience.

I will be attending the 21st Annual AILA California Chapters Conference from November 13th through 15th in San Francisco, California. I will report on any developments and other pertinent information that may emerge from this Conference in the December 2008 Immigration Solutions newsletter.

Stay tuned!

By Thomas J. Joy
Attorney at Law

Immigration Solutions has been recently inundated in regard to questions pertaining to cap exempt H-1B employment from its clients and readership. As a result of this, we’ve decided to address your questions with the writing of this article. We trust that you will find it useful and informative.

Are you an employer or staffing company searching for a way to solve the H-1B cap (quota) problem? At the present time, due to quota limitations and more demand than supply, you are restricted to filing in early April for H-1B visas for your critical H-1B professional employees who, if they win an H-1B visa in the lottery, can not start employment until the following October 1st, at the earliest. This unavailability and timing problem makes it very difficult to plan for the employment of H-1B workers.

If the petitioning employer is an institution of higher education or a related or affiliated nonprofit entity or a nonprofit or government research organization, then the H-1B cap does not apply. What is generally not widely known is that the United States Citizenship and Immigration Services (“USCIS”) has interpreted the cap exemption in such a manner that widens the scope of the cap exemption. Specifically, USCIS will allow, subject to certain restrictions, an employer who is not cap exempt to petition for its H-1B employees who will perform their duties at a cap exempt institution. Such employers are known as third party petitioners. The intent of Congress was to ensure that qualifying cap exempt institutions have a continuous supply of H-1B workers without quota limits.

Pursuant to the broader interpretation, the USCIS will allow third party petitioning employers to claim the cap exemption for their H-1B employees if the employees will perform job duties at a qualifying cap exempt institution that directly and predominately furthers the normal, primary or essential purpose, mission, objectives or function of the institution, namely, higher education or nonprofit or government research. If the petitioning employer is not itself a qualifying cap exempt institution, the burden is on the petitioning employer to establish a logical nexus between the work performed predominately by the employee and the normal, primary or essential work performed by the qualifying institution. Essentially, the third party employer’s employee would be cap exempt if he was performing duties that would or could otherwise be performed by employees of the qualifying cap exempt institution in furtherance of the qualifying institution’s primary mission.

It should be noted that it must still be proven that the job offered is a specialty occupation in order to qualify for an H-1B, i.e., the position requires a minimum of a 4 year baccalaureate degree or the equivalent. This will be an issue for registered nurses since the USCIS takes the stance that the position of registered nurse generally does not require a 4 year baccalaureate degree. Registered nurses in more complex positions may be able to qualify.

In summary, cap exempt status, whether it is by working for a cap exempt employer or for a third party employer at a cap exempt institution, provides the advantage of filing at any time without regard to the quota and affords much more flexibility for planning and staffing purposes.

Immigration Solutions is pleased to announce its new package of Employer Compliance Solutions and Services

Why wait until —

• The government notifies your company that it is to produce all of its I-9 forms and related documents for audit …
• Or, the government notifies your company that it is to produce all of its H-1B public access files and related documents for audit …
• Or, your company receives a Social Security No-Match Letter,

Consider the following:

Hiring managers and human resource professionals know the value of degreed skilled worker foreign nationals, especially in the science, technology, engineering and healthcare occupations.  As the workforce becomes more global in scope, employers are increasingly learning that it is essential to understand and effectively adhere to immigration compliance laws and regulations.

The trend toward increased scrutiny of immigration employment practices will likely continue in the foreseeable future. So for now, it’s imperative that employers place their attention on several important areas that require knowledge, training and compliance:

I-9 Employment Eligibility Verification Form. The mechanism for employment verification compliance is the I-9 Employment Verification Form which every worker must complete on the day of hire or earlier.

The employee must complete the first section of the I-9 form and must provide the required supporting documents within three days of the date of hire. If the documents are not presented by that point, the employee must be removed from the payroll (though it is permissible to suspend the worker rather than terminating the worker all together).

SSN No-Match Letters. A Social Security “no-match letter” is a notice sent by the Social Security Administration (“SSA”) to employers and employees to inform them that the employee name or Social Security number listed on an employee’s W-2 does not match the SSA records.

The no-match letter is not a notice that the employer or employee has done anything wrong. SSA mismatches may have many root causes, including failure to inform the SSA that a name change has occurred, typographical errors, an error within the SSA database, and individuals who present false social security numbers or use another person’s social security number when completing hiring paperwork.

E-Verify. E-Verify is an Internet-based system operated by the DHS in partnership with the SSA that allows participating employers to electronically verify the employment eligibility of their newly hired employees. E-Verify virtually eliminates SSA mismatch letters, improves the accuracy of wage and tax reporting, protects jobs for authorized U.S. workers, and helps U.S. employers maintain a legal workforce. E-Verify is free and voluntary and is the best means available for determining employment eligibility of new hires and the validity of their Social Security Numbers.

H-1B / LCA Compliance. The American Competitiveness and Workforce Improvement Act (“ACWIA”) requires all employers that employ foreign workers in H-1B nonimmigrant visa status, to post an approved Labor Condition Application (“LCA”) for ten days in two “conspicuous” locations at the worksite where the H-1B worker will be employed. The employer must attest that the wage offered to the applicant is at least as high as that paid by the employer to current employees for the same type of job, and the number equals or exceeds the prevailing wage for the job in the same geographical area; that working conditions will not adversely affect those workers similarly employed; that there is no strike or lockout at the employer’s premises; and that the notice of the LCA has been given to current employees.

Additionally, employers which employ foreign workers in H-1B nonimmigrant visa status are also required to maintain a “public access file” containing certain information regarding the employee’s wages and the employer’s compliance with the LCA. Maintaining a public access file is an integral part of complying with H-1B laws.

Pre-Merger & Acquisition Due Diligence. While a closing may be a cause for celebration at a company, it can also be the cause of a nightmare for a company since it can instantly render all completed
I-9s for an acquired company invalid.  If the acquiring company does not assume all the assets and liabilities, then the I-9s will likely not transfer.

In a merger case where the acquiring entity is a successor-in-interest, new I-9s will not be needed. However, I-9s should be checked in the due diligence process to ensure the acquired I-9s are in good shape.

Employers should consider adding I-9s to a merger checklist and have all employees of the combined company complete I-9 forms on the day of closing or beforehand.

…

Immigration Solutions works proactively with its clients to provide comprehensive assistance in developing and maintaining best practices necessary to assure compliance with USCIS, SSA and DOL regulations.

Employer compliance is becoming more complex and enforcement (investigations and audits) is increasing. In order to effectively deal with these issues and avoid the very severe consequences for non-compliance, employers must take the time to develop a strategy and be prepared in advance with an Immigration Compliance Program.

Immigration Solutions will customize such a program for you and will provide onsite or telephonic training, consulting, and document auditing in all of the areas mentioned above, as well as provide ongoing compliance updates. For more information on our services, please contact us at info@immigrationsolution.net