Immigration Basics: Overview of Procedures and Obligations for Employers Part 1: Nonimmigrant Visas Fragomen, Del Rey, Bernsen & Loewy, LLP © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP Aaron Blumberg ablumberg@fragomen.com Associate Enrique Gonzalez egonzalez@fragomen.com Managing Partner Fragomen, Del Rey, Bernsen & Loewy, LLP Alhambra Plaza, Suite 600, Coral Gables, FL (305) 774-5800 Immigration Overview © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP Three Groups of People in the US 1) Citizens 2) Immigrants 3) Nonimmigrants Nonimmigrants • Coming to the U.S temporarily • Retain residence abroad • Dual intent - only for H’s and L’s • “Alphabet Soup” - A-V • Important Visas to Know: H-1B, TN, E3, F-1, J-1, O-1 • Immigrants vs nonimmigrants Immigrants • “Green card holders” = “permanent residents” = “immigrants” • Coming to U.S permanently • Numerically limited – Visa bulletin – Priority date • Can become U.S citizens after - years Understanding the Documents © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP Visa Stamp I-94 (D/S) I-94 (Expiration Date) 10 Qualifying Criteria • The employer must hire the foreign worker as a full-time employee • There must be a bona fide job opening available to U.S workers • Job requirements must adhere to what is customarily required for the occupation in the U.S and may not be tailored to the foreign worker's qualifications In addition, the employer shall document that the job opportunity has been and is being described without unduly restrictive job requirements, unless adequately documented as arising from business necessity • The employer must pay at least the prevailing wage for the occupation in the area of intended employment • Recruitment must take place 30-180 days before PERM application filed 84 Requirements • • • • Prevailing Wage Determination Placement of job order with SWA Placement of two Sunday newspaper ads additional ads (Employer’s website; Job fairs; Job search websites; Private employment agencies; On-campus recruitment; Trade or professional organizations; Employee referral program (if incentives are offered); Campus placement office postings; Local and ethnic newspapers, where appropriate; Radio and television ads) • Recruitment Report • Notice of Job Availibility (NOJA) 85 Elements of the Advertisement • Must contain the employer’s name • Must direct applicants to report to or apply to the employer • Must describe the job opportunity • Must indicate the geographic location of the job opportunity • The wage is not required, but if wage is included in the ad, must equal or exceed prevailing wage (and cannot be less favorable than the wage offered the foreign national) 86 Contacting Applicants • Good Faith Effort • Employer must timely contact ALL applicants as soon as possible (within reasonable timeframe, e.g 7-14 days of receipt) • Employer must document applicant contacts or attempts to contact: – dates – name and title of person making/ attempting contact – method of contact - certified letter recommended 87 Interviewing Applicants • Employer’s normal company process – screening (e.g., telephone) interview conducted by employer is acceptable • Employer must analyze qualifications in the context of stated minimum requirements • Employer must provide objective & quantifiable reasons for rejections • Authorization to work in the U.S • Potentially qualified applicants 88 Recruitment Record/Report • Recruitment results not submitted with labor certification application • Employers must maintain documentation of recruitment efforts and results – Records must be retained for five years from filing of labor certification application – Certifying Officer may request records during an audit • Employer must prepare detailed recruitment report that fully and accurately describes recruitment efforts – Must detail number of workers applied and sorted by reason of rejection (doesn’t need to contain names or resumes) 89 Audits & PostPERM Issues © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP Audit File • Contents – Recruitment efforts – Recruitment report – Prevailing wage determination – Notices/Postings/Advertisements – Business necessity arguments • Records must be retained for years 91 Audits • How will cases be selected for an audit? – Randomly – Based upon audit criteria • • • • • • • • Job duties not normal for occupation/exceed SVP Qualifying experience gained with employer in comparable position Layoffs Foreign language requirements Alternative requirements Combination of occupations Foreign national influence over position Employer paid for education and/or training • Audit process – CO sends audit letter w/request for documentation – Employer has 30 days to submit response – CO may certify, deny, request additional documentation or order supervised recruitment 92 Impact of Termination or Changes in Conditions of Employment on Permanent Residence Process • Immigrant Visa (I-140) Petitions – Maintenance of priority date • Adjustment of Status (I-485) Applications – Adjustment of Status Portability  If I-140 approved or approvable and I-485 pending more than 180 days  Must be filling same or similar occupation  Change in job location or difference in wage offered not basis for denial (substantial wage difference could impact “same or similar job capacity” analysis)  Notification to USCIS of change of employer 93 What Happens After PERM Approval? © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP I-140 Petition • Step of the green card process – Step of the green card process for EB-1 and NIW 95 • After PERM approval, everyone is eligible to file I-140 • Must be filed within 180 days of PERM approval • Must document ability to pay • Must document requirements listed on PERM application (education, experience, etc) May 2011 Employment Bulletin 96 Adjustment of Status (I-485) • Third and final step of Green Card process • Can file concurrently with I-140 if priority date is current • Filing of I-485 gives applicant status to remain in the US • 90 days after filing, applicant receives work permit (EAD) and travel document (advance parole) if they filed I-765 and I-131 • Biometrics occur 1-3 months after filing • Green card issued approximately months after filing 97 Thank You! If you have additional questions, please send me an email: ablumberg@fragomen.com © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP ...Aaron Blumberg ablumberg @fragomen. com Associate Enrique Gonzalez egonzalez @fragomen. com Managing Partner Fragomen, Del Rey, Bernsen & Loewy, LLP Alhambra Plaza,... 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP Visa Stamp I-94 (D/S) I-94 (Expiration Date) 10 I-797 Approval Notice & I-94 Card 11 I-20 (F) 12 DS-2019 (J) 13 Form I-9 14 H-1B Work Visa © 2008 Fragomen, ... Loewy, LLP Alhambra Plaza, Suite 600, Coral Gables, FL (305) 774-5800 Immigration Overview © 2008 Fragomen, Del Rey, Bernsen & Loewy, LLP Three Groups of People in the US 1) Citizens 2) Immigrants