Articles Posted in Employers

business-man-modified-484010-m.jpgCompetition in the global market place, the recovering economy in the United States and the continued rise of emerging markets are giving rise to mergers, acquisitions and business restructuring at an increased pace. These types of transitions can often affect employment based applications for permanent resident status. Employers are urged to include experienced immigration counsel in their due diligence team before and during the process of negotiating the terms of a deal that will change the structure of a business. Below are three common ways in which a merger or acquisition can affect the green card application for an employee.

Fundamentally, it must be determined whether there will be a change in ownership of an employer, or whether the target employer will cease to be an employer. There are many stages and types of asset purchase deals that must be examined from an immigration standpoint to determine whether the new business entity formed from the transaction will be a successor-in-interest of the old business.
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at-work-1168056-m.jpgCompleting Form I-9 (Employment Eligibility Verification Form) for foreign nationals is a delicate process. Human resource professionals, managers, and business owners must be aware of the rules and regulations surrounding the Form I-9 process to avoid civil and criminal penalties. These penalties can range from a few hundred dollars to millions of dollars depending on the nature and number of the violations. The costs in litigating these matters also raise expenses incurred by the company.

Generally, an employer must reverify employment authorization documents no later than the date the document expires. Reverification is done on Section 3 of Form I-9. Some documents should never be reverified, for example, an expired U.S. passport or a Permanent Resident Card (Form I-551). However, this does not mean that permanent resident employees are never subject to reverification. Permanent resident employees may choose which documents to submit to the employer for I-9 purposes. It is not necessary for a permanent resident to present their Permanent Resident Card to their employer. For example, a permanent resident may present their foreign passport with a temporary I-551 stamp.
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1042388_business_people.jpgOne of the requirements to be eligible for the L-1B nonimmigrant intracompany transferee visa category is that the beneficiary must have specialized knowledge. The legal definition of specialized knowledge was illustrated recently by the Administrative Appeals Office (AAO) of the US Citizenship and Immigration Services (USCIS) in a recent court case dated March 15, 2013. In that case, the petitioner had filed an L-1B visa petition with the Director of the USCIS California Service Center, which denied the petition. The AAO heard the petitioner’s appeal and reversed the Director’s denial.

The AAO held that the Director based its denial upon an incorrect interpretation of the law regarding specialized knowledge. The Director concluded that the beneficiary did not have specialized knowledge because the beneficiary was not responsible for actually developing the product or technology for which the specialized knowledge is required.
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950851_time.jpgThe Law Firm of Shihab & Associates predicts that the H-1B visa cap will be reached close to if not on April 1st, 2013. It is our professional opinion that businesses seeking to hire workers in a specialty occupation for the 2014 fiscal year should strive to file cap-subject petitions on April 1st, 2013 wherever possible. While it is difficult to postulate that the 2014 cap will be reached on the first day of filing, we are advising our clients against taking any chance of losing out on valuable human resources needed for the coming year and to be prepared to file cap subject H-1B visas on the first business day of April.

A Pattern of Dramatic Growth in H-1B Hiring
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126593_newspaper.jpgDuring the Application for Permanent Employment Certification (otherwise known as PERM), is imperative to carefully draft the language used in the advertisements and job postings. This was underscored by the Board of Alien Labor Certification Appeals (BALCA) in its recent decision on February 6 that affirmed the denial of PERM certification due to the way the advertisement was drafted, in the matter of Oracle America, Inc.

Originally, the Certifying Officer (CO) denied the employer’s PERM application because of the language used in the Notice of Filing (NOF), otherwise known as the internal job posting, BALCA affirmed the CO’s denial holding that the job posting contained a job requirement that was not indicated in the ETA Form 9089.
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1037536_money_in_hand.jpgThe US Department of Labor Office of Administrative Law Judges (OALJ) issued a recent court decision dated January 18, 2013 that illustrates legal issues regarding H1B wages and when employers must pay non-productive employees. This case, Administrator, Wage and Hour Division, United States Department of Labor (USDOL) v. North Shore School for The Arts (NSSA), involves an H-1B worker piano teacher, Ms. Natsuko Imai who filed a USDOL complaint against former employer NSSA and demanded payment of back wages for her nonproductive time. The USDOL originally determined that NSSA owed back wages for nonproductive time, and NSSA filed the appeal to OALJ in this case.

When must the employer pay wages for non-productive time?
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52600_pellegrino_bottle_and_glass.jpgA restaurant manager does qualify for the L-1 non-immigrant visa category, according to recent court decision by the Administrative Appeals Office (AAO), provided that certain criteria are met.

In order to qualify for the L-1 visa classification, the petitioner must establish that the beneficiary employee will work for the petitioner in an occupational position that is one of the following: (1) managerial, (2) executive, or (3) with specialized knowledge. The petitioner must also establish that beneficiary employee has worked in one of the three capacities for one continuous year within the previous three years prior to the filing date of the application. Also, the L-1 petition must establish that the beneficiary employee will oversee other supervisors, will oversee professional employees, or will primarily manage an essential function of business.
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952313_gavel.jpgWith regard to Form I-9 violations, any aggravated punitive fines imposed upon employers by the United States Department of Homeland Security, Immigration and Customs Enforcement (otherwise known as ICE) must be based upon several factors set forth by law. This was recently underscored in a recent court case heard by the Executive Office for Immigration Review (EOIR), Office of the Chief Administrative Hearing Officer (OCAHO), in the case of United States v. March construction on November 13, 2012. Here, OCAHO significantly reduced the overall fine from $86,933 to $17,120 because it said ICE failed to establish specific factors.

The March Construction case emphasized the rule that the burden of proof rests on the government to establish the penalty and liability, and it must therefore prove aggravating factors by a preponderance of the evidence. In order to assess a penalty, there are several factors to be considered, which are:

  • The size of the business
  • The good faith of the employer
  • The seriousness of the violation
  • Whether the employee was an unauthorized immigrant
  • Whether the employer has previous violations
  • The company’s ability to pay the fine

Each of these aggravating factors must be based on specific facts supported by evidence in order to justify enhancement of a fine.
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1223513_us_flag_1.jpgThe EB2 employment-based second preference immigration visa requires a labor certification and job offer. There is an exception to these requirements if it can be established that granting a visa is in the national interest of the United States. This is the national interest waiver. The criteria are a three-part test established by case law:

  1. The foreign national’s work must be in an area of substantial and intrinsic merit;
  2. It must be established that the foreign national’s benefit will be national in scope;
  3. The foreign national must benefit the US to a substantially greater degree than those with equivalent minimum qualifications;

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865417_rejected.jpgThe USCIS has recently disclosed last month, pursuant to a Freedom of Information Act (FOIA) request, a list of specific fraud indicators it uses to verify the integrity of H1B petitions in order to identify the likelihood of fraud. Once a petition has been flagged by the indicators, this will trigger further scrutiny, and the USCIS will refer the petition to the Center Fraud Detection Operations (CFDO). These indicators include:

  • The Company declares that it has less than 25 employees
  • The Company has less than $10 million in gross annual income