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The Trusted Source for Hospitality Immigration Law Solutions
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August 2008, Vol. 1, Issue 2
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NEWS & PRESENTATIONS |
» Please join us in congratulating Jerry Grzeca on his election to a three-year term as a Director for the American Immigration Lawyers Association's (AILA) national Board of Governors. Jerry looks forward to serving AILA as a Director for the next three years.
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September 18, 2008 - Wisconsin Bar Association Webcast, Worksite Enforcement and Its Consequences. Open to non-Wisbar members. Click here to register. 
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DID YOU KNOW... |
When a foreign national employee resigns or is terminated, certain steps must be taken to protect the company:
Depending on the current immigration status of the employee and the petitions that are pending before the U.S. Citizenship and Immigration Service (CIS), an employer has various options and obligations when an employee leaves the company. It is always advisable for a company to notify CIS when an employment relationship has ended, but in some situations its obligations are much more significant. In addition, the termination of the employment relationship may have serious implications on pending immigration petitions on behalf of the foreign national. Therefore, whenever a foreign national gives notice or a company is making the decision to terminate its relationship with a foreign national, you should contact our office so that we can help make the transition as smooth as possible. Certain situations require particular attention and are described below:
Employees in H-1B Classification:
A former employer has an affirmative obligation to notify CIS when an H-1B employee leaves the company. Otherwise, the employer may be liable to continue payroll obligations beyond the date of termination. In addition, employers must offer to pay the return transportation for H-1B workers whose employment is terminated prior to the expiration of the authorized period of stay. Even when the cause of termination is beyond the employer's control (e.g., the FN's assigned project ends early) the employer is liable for return transportation costs. Only if the employee terminates the employment relationship is the employer released from this obligation.
In addition, the Public Access File (PAF) created to comply with Department of Labor Regulations must be retained for one year beyond the last date of employment of any H-1B nonimmigrant included on the Labor Condition Application (LCA). Furthermore, any payroll records for the H-1B employee and other employees in the same occupational classification that were utilized for PAF documentation should be retained for three years from the date of their creation.
Pending Permanent Residence Applications:
A foreign national may "port" his or her permanent residence petition to a new employer if certain conditions are met. If those conditions are not met, a permanent residence application may be considered abandoned. Therefore, if a company no longer intends to employ the foreign national or is considering terminating an employee with a pending Immigrant Petition for Alien Worker (I-140) or Application to Adjust Status (I-485), the company should contact our office. At that time, we can discuss the potential impact on those applications and strategies to protect the company's and the foreign national's interests.
Employees in L-1 or TN Classification:
An employer has fewer obligations in the case of termination of an employment relationship with a foreign national in L-1 or TN classification; however, certain steps may still need to be taken. Although not necessary, the company may wish to send a letter to a CIS notifying it that the employment relationship has ended. In the case of a TN employee, it may also be advisable to contact officials at the port of entry. It is also generally prudent to inform the former employee that he or she should leave the country within 10 days. Unlike with H-1B workers, the company has no obligation to pay the return travel costs of L-1 or TN workers. Finally, although there is generally no Public Access File to maintain in the case of nonimmigrant workers, an employer is obligated to retain the Employment Eligibility Verification form (I-9) for one year after the termination of the employment relationship.
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FOLLOW THE LETTER OF THE LAW OR FACE LARGE FINES & JAIL TIME
ICE Raids A Workplace Reality
US Immigration and Customs Enforcement, better known as ICE, has dramatically increased enforcement for those who have violated immigration laws. Many of these raids have occurred in industries such as recreation, restaurant, and hospitality that often face labor shortages during peak times of the year. Read »
TN Classifications for Canadian and Mexican Professionals
The TN classification is not as common as an L-1 or H-1B, however, it is a valuable classification in the hospitality industry. Read »
HELP! MY EMPLOYER IS TRANSFERRING ME ABROAD!
Maintaining Permanent Resident Status When Transferred Outside the U.S. or Canada
Receiving U.S. or Canadian permanent residence is a major achievement for many individuals. However, what happens if an individual receives permanent residence and then finds out that they are being transferred outside the country by their employer for a temporary time period or that they need to leave the country temporarily for personal reasons? Read »
Dealing with Mergers and Aquisitions
When company merger and acquisition decisions are made, the process does not always include consideration of the impact on its foreign national employees. Read »
H-2B Count Update
On July 30, CIS announced July 29 as the "final receipt date" for new H-2B worker petitions requesting employment start dates prior to April 1, 2009. Read »
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| ICE Raids Becoming Workplace Realities
US Immigration and Customs Enforcement, better known as ICE, has dramatically increased enforcement for those who have violated immigration laws. Many of these raids have occurred in the recreation, restaurant, and hospitality industries that often face labor shortages during peak times of the year.
So far this year, ICE has raided a hotel and resort in Virginia, a outdoor entertainment conglomerate in Phoenix, a restaurant chain in San Francisco, and a cleaning sub-contractor used by courthouses in Rhode Island, just to name a few. In some of these raids, including recent action in a Van Nuys, California computer cartridge manufacturing plant, documented legal workers and US Citizens have been mistakenly identified as illegal workers.
A Phoenix water park raid resulted in forty one counts charged against employees, including the alleged use of false identification, forgery and stolen identity charges. At this time, employer files have been seized, but no charges have been filed against the employers to date.
At the Virginia resort, ICE questioned more than one hundred employees, investigated its business practices, and examined the company employment documents. Its statement said fifty nine men and women, all from Latin American countries, were taken into custody for immigration violations and may eventually be processed for deportation. ICE did not state whether or not action would be taken against any of the managers or owners. The resort, located in the Washington DC metropolitan area, offers convention facilities, golf tournaments and tours of nearby wineries.
Though these raids are typically aimed at charging and detaining employees, occasionally they result in charges against the employer. In late July, it was announced that the former head of a Kentucky-based interior construction company had been sentenced to eight months in a federal prison for "knowingly" hiring illegal undocumented workers. The company used a sub-contractor because "in the realities of a tight labor market in the construction industry", the company stated, they "made poor decision about its labor subcontractor, for which it now must atone."
Our office has experience in assisting our clients in audits and creating effective corporate compliance programs and policies that can streamline the process of legally hiring foreign nationals and work to prevent these situations from occurring.
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TN Classification for Canadian and Mexican Professionals
Although, the L-1 and H-1B classifications are more well-known, TN is an immigration category provided by the North American Free Trade Agreement ("NAFTA") that proves to be a viable and valuable option for the hotel industry. This classification is a great alternative for individuals who have not previously worked for the company or miss the "H-1B cap."
As parties to NAFTA, the United States, Canada and Mexico have sought to simplify and expedite the process for temporary, business-related admissions of citizens of one country another. The TN Classification is reserved for professionals, and is divided into specific designations covering a variety of professions as described below.
Hotel Manager is the designation used most frequently by the hospitality industry. The minimum credentials for a Hotel Manager are a Bachelor's Degree in Hotel/Restaurant Management or post-secondary Diploma or Certificate and three years experience in the field.
Other designations, such as Management Consultant, Computer Systems Analyst, Accountant, Interior/Industrial/Graphic Designer or Architect may also be utilized provided the positions offered to the individuals, as well as the individuals' credentials meet the requirements for the appropriate designation.
The TN classification is usually issued in one-year increments and serves as an employer-specific work authorization, but can be extended indefinitely. U.S. Citizenship and Immigration Services (CIS) has recently proposed a new rule that would extend the validity of the TN classification up to three years. On the plus side, there is no annual limit to TN classifications and the documentation needed is less burdensome than the H-1B category.
With proper documentation, Canadian Citizens may apply for the TN classification at a port-of-entry inspection through immediate review and adjudication. However, Mexican Citizens are still required to visit a U.S. Embassy or Consulate for adjudication of their TN Application and issuance of the TN visa.
Please contact our office to discuss this classification as an option to transfer your employees throughout North America.
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| Maintaining Permanent Residence Status
Receiving U.S. or Canadian permanent residence is a major achievement for many individuals. As exciting as it is, what happens if an individual receives either permanent residence and finds out that they are being transferred outside the country by their employer for a temporary time period or that they need to leave the country temporarily for personal reasons? Both the United States and Canada recognize that individuals may need to temporarily transfer outside their country and have developed methods to assist these individuals in maintaining their permanent resident status while abroad.
In order to maintain U.S. permanent residence, certain rules govern any periods of absence from the United States. A valid Permanent Resident Card ("green card") is sufficient documentation to re-enter the U.S. after any temporary trips abroad, provided the absence from the U.S. is less than one year. For absences from U.S. residence that are greater than one year, certain steps must be taken prior to leaving in order to ensure that status is preserved and to secure re-entry. These include applying to the U.S. Citizenship and Immigration Services (CIS) for a Reentry Permit (while in the United States), as well as taking steps to demonstrate that there is no intention to abandon U.S. residence.
A Reentry Permit will serve as a valid reentry document for up to two years. It presumptively establishes that the holder has not voluntarily abandoned U.S. permanent resident status.
In addition to the formal Reentry Permit, the CIS will look to certain subjective factors when determining whether an individual intends to maintain U.S. permanent resident status, such as reason for residence abroad and continued ties to the U.S., which can be firmly established as intent to maintain U.S. permanent residence.
For Canada, maintaining permanent residence is similar to the U.S. For example, instead of applying for a Reentry Permit, Canadian permanent residents can apply for a Returning Residence Permit. In addition, Canada has minimum residency obligations for their permanent residents. If an individual has been a permanent resident for less than five years, they must show that they have been physically present in Canada for at least 730 days at the five-year mark. If an individual has been a permanent resident for more than five years, they must show that, within the last five years, they have been physically present for at least 730 days.
When spending time outside of Canada, individuals may be able to count these days towards their minimum residency obligations if the time spent falls under certain circumstances which include: accompanying a Canadian citizen outside of Canada; employment outside of Canada; accompanying a permanent resident outside of U.S.; and, absence while in possession of a valid Returning Residence Permit. Please note, there are certain requirements under each of these categories that must also be met.
For more information regarding maintaining U.S. or Canadian permanent residence, please contact our office.
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Dealing With Mergers and Aquisitions
Merger and acquisition (M & A) decisions and transactions are customarily made after a thorough process of due diligence by a prospective buyer. However, that process does not always include consideration of the impact of immigration issues on the value of the target and potential liability attributable to the predecessor entity.
Identification of the target's professional foreign national employees whose continued employment is important to the new entity and assessment of the target's immigration-related compliance are vital pieces of information to consider prior to merger or acquisition decisions are made. Failing to adequately assess the immigration related matters may result in unforeseen civil and criminal liability.
As part of the due diligence process, a buyer should identify foreign nationals employed in order to consider whether immigration regulations will allow them to be retained after the merger or acquisition. The effect of the transaction on individual foreign nationals will depend on which nonimmigrant classification they currently hold and other factors.
For example, when corporate structure changes as the result of an acquisition, merger, "spin-off," or other such action, the new employer of the target's H-1B specialty occupation employees is not required to file new Labor Condition Applications (LCA's) with the Department of Labor or new H-1B petitions with U.S. Citizenship and Immigration Services (CIS), regardless of whether there is a change in the Federal Employer Identification Number.
However, this is subject to two provisions. First, the new employer must maintain in its records a list of the H-1B nonimmigrant employees it has acquired. Second, the employer must maintain a sworn statement in its Public Access File by an authorized employee of the new employer expressly acknowledging the employer's assumption of the obligations and liabilities arising from the predecessor's attestations in the LCA for each H-1B employee.
In the case of L-1 intracompany transfers, specific requirements are a pre-requisite to enable executives, managers and specialized knowledge employees to qualify for this classification. For example, there must be a qualifying relationship between the petitioning company and the employee's company abroad, either as a parent, branch, subsidiary or affiliate. If, as a result of corporate re-structuring, the qualifying relationship no longer exists, the employer must explore other visa options for the foreign national to keep him or her in valid status. However, even if the corporate restructuring does not eliminate the qualifying relationship for L-1 transfers, it may still be necessary to notify CIS of the change by amending employees' L-1 petitions.
In the case of foreign nationals seeking permanent resident status, buyers should also consider whether applications and petitions already in progress can be transferred to the new company. For example, the new CIS standard requires that the new company must assume all the assets and liabilities of the prior company in order to be considered its "successor-in-interest," which is a pre-requisite to approving an Immigrant Petition in this situation.
Immigration-related compliance issues include a target company's compliance with H-1B rules and the PERM rules associated with the labor certification process. An additional source of potential liability is the target company's I-9 obligations under the Immigration Reform and Control Act of 1986 (IRCA) -- it's compliance with the obligations to hire only individuals who are authorized to work in the U.S., to verify its employees' employment eligibility on I-9 forms, and to keep the I-9 forms for the required retention period are also areas for concern throughout corporate structure changes.
Relevant inquiries in the due diligence process should include whether a target company
has complied with I-9 rules, established written I-9 policies and procedures, trained its personnel in
I-9 verification, and conducted meaningful I-9 self-audits. In addition, a buyer should determine what response the target has made to Social Security Administration no-match letters, if any, as well as inquiring whether the target has ever been inspected, investigated, warned or fined by the Departments of Labor, Homeland Security (DHS) or Justice, or raided by ICE.
An employer that continues to employ some or all of a previous employer's workforce in cases involving a corporate reorganization, merger, or sale of stock or assets may not be required to obtain new I-9's from these employees. However, an acquiring party can minimize its I-9-related liabilities by requiring all the employees to complete a new I-9 form on the first day after the transaction and by negotiating for indemnification for I-9 liabilities of the target company.
Because immigration-related liabilities may expose the surviving entity in a merger or acquisition transaction to a loss of key employees, disruption of operations, and civil and criminal penalties, as well as unwelcome publicity, buyers would be well-served to perform due diligence in this area, with the advice of immigration counsel, and to address identified issues directly in the negotiation of representations and warranties with the target company. Waiting to address immigration issues until after the closing of a transaction will greatly limit the acquiring company's options.
Grzeca Law Group has assisted in countless mergers and acquisitions and is a great resource to consider including in onset of this type of decision making.
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H-2B Count Update
On July 30, CIS announced that July 29 was the "final receipt date" for new H-2B worker petitions requesting employment start dates prior to April 1, 2009.
An H-2B visa allows U.S. employers in industries with seasonal or intermittent needs to temporarily add workers due to a one time occurrence requiring a temporary increase in their number of workers. These industries include resort/hospitality, construction, health care, and food service/processing.
CIS regulations allow for the filing of H-2B visas in two halves, with an annual limit of 66,000 per fiscal year, up to 6 months in advance of the needed employment. Because the first half of the current cap has been reached, the next opportunity for employers to apply for H-2B's is for a start date of April 1, 2009 or later. Click here to read the CIS Press Release.
Please contact our office for more information on the H-2B classification. |
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Grzeca Law Group, SC is an AV-rated law firm dedicated to providing superior professional service to the international business community by advising corporate clients on all aspects of employment-related immigration law.
Immigration Update has been prepared by Grzeca Law Group, S.C. for informational purposes and does not constitute legal advice. This information is not intended to create, and receipt of it does not consitute, lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisors. | |
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