Business Immigration Horizon: New H-1B Law Spells Relief- And Paperwork

At the eleventh hour, Congress passed the American Competitiveness and Workforce Improvement Act of 1998, better known as the H-1B bill. The law increases the annual cap on H-1B visas for temporary skilled personnel from the 65,000 cap used in previous years to 115,000 for Fiscal Year 1999, which began on October 1, 1998. There will also be 115,000 H-1B visas available in Fiscal Year 2000, and 107,500 in Fiscal Year 2001. The cap returns to 65,000 in Fiscal Year 2002 and will remain at 65,000 thereafter.

Accompanying the visa cap increase are higher government filing fees on H-1B petitions, stronger layoff provisions for "H-1B dependent" companies, and increased penalties for violations. An additional $500 filing fee must accompany the following types of H-1B petitions: (1) petitions for "new employment" (whether initial, consecutive, or concurrent employment), and (2) the first extension petition filed by an employer for a particular H-1B employee. The employer must pay this fee and cannot require or accept reimbursement from the employee.

Employers are likewise prohibited from recouping funds from an H-1B employee who departs the company prior to a contractually agreed date, if such payment would be considered a "penalty" under applicable state law. Institutions of higher education, nonprofit research institutions, and government research institutions are not required to pay the fee.

The new law also requires certain new attestations by "H-1B dependent" employers. An employer is "H-1B dependent" if it employs at least 51 full time employees, of whom at least 15% are H-1B visaholders. To accommodate small companies, employers with fewer than 25 full time employees are not considered H-1B dependent unless 8 or more of their employees are H-1B visaholders. Similarly, employers with 26-50 full time employees are not H-1B dependent, unless they employ more than 12 H-1B visaholders. H-1B dependent employers must, among other things, attest that no displacement of a U.S. worker employed by them has occurred within the preceding 90 days and that no such displacement will occur within the 90-day period following the filing of an H-1B petition. As well, they cannot place the H-1B visaholder with another employer unless they also attest that they have inquired and have no knowledge that the other employer has displaced or will displace a U.S. worker within the 90-day period before or after the H-1B visaholder is to be placed with the other employer. The H-1B dependent employer must also attest that it has taken good faith steps to recruit for the position in the United States using industry-wide standard practices and has offered the job to all U.S. applicants who are equally or better qualified than the H-1B worker.

The new attestation provisions do not go into effect until the Department of Labor and the Immigration and Naturalization Service issue final regulations to implement them. Even then, no new attestations are required if the employer is petitioning for an H-1B nonimmigrant who holds a master's degree (or its equivalent) or higher in a field related to the intended employment or who is paid at least $60,000 per year (including cash bonuses or other similar compensation).

As soon as an employer obtains an H-1B visa for any employee, new or transferred, an immediate assessment should be made as to what will be done when the H-1B expires in year six. (An H-1B visa cannot be extended past the sixth year of the worker's cumulative physical presence in the U.S. in H-1B status.) Permanent residency time frames are long, creating a tight squeeze on accomplishing permanent residency during the six-year H-1B window.

The H-1B category is available to foreign workers who hold a U.S. bachelor's degree or the equivalent and who are coming to work in an industry which generally requires such a degree in order to perform the job in question. Formerly known as "professional" visas, these are now called "specialty occupation" visas and include, among other occupations, systems analysts, portfolio analysts, engineers, medical doctors, attorneys, and accountants.

The annual quota only applies to new H-1B visas and not to H-1B "transfers." A transfer involves an H-1B worker who is moving from one employer to another. U.S. employers may, therefore, proceed with petitions for foreign workers who already hold an H-1B visa and are thus not subject to the quota and its delays. The worker may not, however, join the new company until the transfer is actually approved by the INS. Approval can take as long as 125 days to obtain from the INS. For new H-1B hires, however, timing is critical so that the paperwork is not stalled for months on end. The worker, of course, cannot be placed on the payroll as a U.S. employee until the H-1B petition is approved. Employers must, therefore, plan strategically for their staffing needs to meet their business timetables.

"I'm Being Assigned Where?!"

Strategizing Your Outbound Assignments

With increasing frequency, our clients are requesting assistance with business visas to foreign countries. Although the consulate of the appropriate country can provide general information regarding what is required to obtain the visa or work permit, quite often the process is a complicated maze that calls for assistance from qualified outside professionals.

The time and effort required to obtain a visa or work permit abroad varies widely from one country to another. For example, if all is found to be in order, approval of an "intracompany transfer" to Canada can be completed in as little as five business days and the required paperwork is fairly straightforward. However, for other countries, such a transfer involves extensive documentation requirements and exasperating processing times. Spain, for example, currently takes six months or longer to process a work permit. Italy requires substantial documentation and frequently changes requirements without notice.

In addition, residence permits must be secured for qualifying family members who plan to accompany an employee abroad during the assignment. Again, this process varies widely from one country to another. In some countries, family members "automatically" receive the same type of visa as the principal applicant, while in others, the family's permit process can be as lengthy and cumbersome as the employee's.

There are numerous factors to consider when planning an international visit or assignment. As with U.S. immigration procedures, early planning is critical to a successful visit or assignment abroad. This process requires a coordinated effort at the outset between the employer, the employee, and the appropriate foreign government. We assist corporations with outbound visas and work permits to all industrialized countries.

Choosing The Best Entry Category

Reduction in recruitment: A timesaving option for labor certification?

The processing of labor certifications is stalled nationwide, with delays ranging from 14 months in Philadelphia to over 40 months in San Francisco. Labor certification is the first of three required steps toward permanent residency for many employees working in technical fields. Employers wishing to avoid such delays should consider using what is known as Reduction in Recruitment processing or "RIR."

RIR processing may only be used 1) for positions for which there are few, if any, qualified U.S. workers; 2) where there are no "restrictive requirements"; 3) if the prevailing wage is paid for the position; and 4) the employer has actively recruited applicants to fill the position within the preceding 6 months, using recruitment sources which are normal for the respective industry and occupation. Procedures, of course, vary throughout the country. For example, some labor offices consider any computer language, operating system, or similar technical requirement to be "restrictive," while others do not. Other labor departments view RIR as an exclusive alternative, barring the simultaneous filing of a conventional labor certification application. Some regions take a simpler approach: they refuse to process these applications altogether!

However, in regions that process RIR applications, this alternative may "circumvent" an otherwise prolonged process during which your H-1B or L-1B employee's visa may expire. For these reasons, RIR should be considered carefully at the outset of permanent residency processing.

Notes:

1. All of the following processing times run from the date an application is received by the government. Preparation time prior to filing the application depends heavily on client participation and promptness in providing documents and information. Preparation time generally ranges from 2 to 30 days in addition to the time shown.

2. H data includes average time required to obtain labor department and related pre-filing clearances. These times may vary widely from region to region.

3. Processing times include both the I-140 stage and the subsequent I-485 stage. Generally, travel and work permission may respectively be obtained on or before the 45th and 91st days after the filing of the I-485.

4. For business green cards, look to the state where the employee will perform the work. You will see the total number of days required to complete a business green card. If labor certification is involved, add an average 500 days. For example, processing in Vermont requires 240 days, but if a labor certification is involved, add the average 500 days for a total time of 740 days to complete a business green card.