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E-Verify 2012-2013 Update


By Hector A. Chichoni

From an US immigration compliance perspective, 2012 was an extreme busy year for E-Verify.  In light of the upcoming immigration reform, 2013 promises to be no less.  The following are a few E-Verify highlights gathered from a variety of government sources:

Made available on line:

1. Self-Assessment Guides for E-Verify users;

2. Quick Audit Report (which allows employers to quickly review their E-Verify activity);

3. The E-Verify Employers Search Tool (which allow users to see which employers are using E-Verify);

4. Tentative Non-confirmation Notices and Referral Letters in 9 additional languages;

5. E-Verify overview in Spanish.

Expanded the following services:

1. Self-check available nationwide in February 2012, giving access to everyone over the age of 16;

2. Florida became the second state to join "Records and Information from DMVs for E-Verify" (RIDE);

Incorporated the following technical enhancements:

 1. Supports mobile Web browsing as well as four major browsers: Internet Explorer (version 6.0 and above), Firefox (version 3.0 and above), Chrome (version 7.0 and above) and Safari (version 4.0 and above).

Experienced a tremendous growth:

1. E-Verify enrollment increased by 35% in 2012, and it continues to grow by more than 1,500 employers each week;

2. On January 12, 2013, there were more than 424,000 employers enrolled in E-Verify (1.2 million worksites) and, as of March 19, 2013, there are more than 432,000 employers enrolled. 

If you wish to obtain additional information in connection with this post, please contact Hector A. Chichoni at: 305.960.2277 or at hchichoni@duanemorris.com.

This post does not constitute legal advice for, or establish an attorney-client relationship with, the reader. 

 
 
 
 

Alert: USCIS Corrects Form I-9's Effective Date of Use


By Hector A. Chichoni

On April 9, 2013, USCIS published a notice of correction in the Federal Register to rectify a mistake made in its prior notice of  March 8, 2013 in connection with the new version of Employment Eligibility Verification, Form I-9 (Form I-9).

In the March 8, 2013 notice, USCIS stated incorrectly the effective date as of “After May 7, 2013” in which employers can no longer use prior versions of the Form I-9.

USCIS’s correction notice of April 9, 2013, rectifies the error stating that “prior versions of Form I–9 can no longer be used effective May 7, 2013.”

In other words, employers must use the 03/08/2013 edition date of Form I-9. Employers should begin using the 03/08/13 dated form right away, older forms dated 02/02/09 and 08/07/09 will be accepted until May 6, 2013. Effective May 7, 2013, only the 03/08/13 will be accepted. The revision date is on the lower left corner of the form.

Federal law requires that every employer and agricultural recruiter/referrer-for-a-fee hiring, or recruiting/referring for a fee, an individual for employment in the United States complete a Form I-9.

 
 
 
 

USCIS Provides An Update On The 2014 H-1B Cap


By Hector A. Chichoni

Today, Monday, April 8, 2015, the United States Citizenship and Immigration Service (USCIS), issued an update on the 2014 H-1B cap stating that:

"For the first time since 2008, USCIS, reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period ... USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing." 

The content of this post does not constitute legal advice or establish an attorney-client relationship with the reader. 

If you need further information, please contact Hector A. Chichoni at hachichoni@comcast.net or at 305.960.2277. 

 
 
 
 

USCIS Announces It Has Reached The H-1B Cap


By Hector A. Chichoni

Today, April 5, 2013, the U.S. Citizenship and Immigration Services (“USCIS”) announced that the H-1B Cap for the fiscal year 2014 has been reached. 

USCIS’s alert states that it received a “sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014,” but that it will continue to accept H-1B subject-to-cap filings until the end of the day today. The statutory cap for “regular” H-1B petitions is 65,000. 

USCIS also stated that it had received “more than 20,000 H-1B petition filed on behalf of persons exempt from the cap under the advance degree exemption.”

USCIS’s announcements states that it will implement a so called “lottery”, a computer-generated selection process, for all H-1B cap-subject petitions received between April 1 and April 5 of 2013. 

USCIS, however, did not state the number of H-1B cap-subject petitions it had received or the exact day in which it will implement the lottery or random selection process. It is expected that USCIS will provide more details sometime next week. H-1B petitions selected under the “lottery” for processing will be “receipted”, those that are not accepted for processing, will be returned to the petitioner (or representatives) along with the filing fees.

H-1B petitions, which are not subject to the 65,000 cap, such as “extensions” and “exempted” petitions, will continue to be accepted for processing by USCIS.

Previously USCIS also announced that it expected a delay in processing subject-to-cap H-1B petitions filed under “premium processing” option.  Petitioners filing under the “premium processing” option should receive an adjudication in about 30 calendar day rather than the usual 15 calendar days from filing.

 
 
 
 

Is OCAHO Gone Soft on Fines?


By Hector A. Chichoni

This is a brief report on some of the most recent, and somewhat surprising, decisions issued by the Office of the Chief Administrative Hearing Officer (“OCAHO”)  in connection with the employer sanction provisions of the Immigration and Nationality Act (“INA”), as amended by the Immigration Reform and Control Act of 1986 (“IRCA”).  Although, these decisions do not completely side with employers; they are surprisingly more benign to employers than past decisions. Some of these decisions appear to auger a somewhat “kinder and gentler” course in the application of employer sanction rules and policies with respect to fines. However, the U.S. Immigration and Customs Enforcement (“ICE”)’ continues to initiate high numbers of investigations and audits, and pursue the highest possible fines and penalties available under statute and regulations, regardless of whether such high fines are warranted.

Here are a few examples of recent OCAHO decisions:

In US v. MEMF LLC d/b/a/ Black & Blue Steak & Crab – Buffalo (“MEMF”) (03/01/2013), a case in which a small company had no prior history of violation, no presence of unauthorized workers found at the time of the investigations, ICE determined that the company, although acting in good faith, nonetheless failed to ensure that each of seventy-three hired employees properly completed “section 1 of Form I-9, or failed itself to properly complete section 2.” True to form, ICE sought highest penalties in the amount of $605 for each violation, or a total of $44,165.

In this particular case, OCAHO reduced the fine, finding that:

"MEMF’s point is well taken that most of the statutory factors weigh in its favor. First, the record does not support the government’s finding that the restaurant is a large employer. The memorandum accompanying the government’s submission states unequivocally that the number of employees was 234, but the record makes clear that MEMF never had that many employees during a single time period. Our case law has previously noted the high turnover inherent in the restaurant industry, and in assessing the number of employees has focused on the number that were actually working at a particular time rather than on the aggregate number of total employees and former employees. Cf. United States v. Pegasus Rest., 10 OCAHO no. 1143, 6-7 (2012) (also considering the Small Business Administration standards for code 5812, noninstitutional “eating and drinking places”);United States v. Snack Attack Deli, Inc., 10 OCAHO no. 1137, 7 (2010)." [Emphasis added.]

In other words, the number of employees who must be considered for purposes of calculating fines is the number of employee that actually worked at a particular time rather than “the aggregate number of total employees and former employees.”

OCAHO reduced the fine, concluding that:

"Apart from seriousness, all the other factors are favorable to the employer. The company is small, it acted in good faith, and it had no unauthorized workers or previous history of noncompliance. MEMF did not argue an inability to pay the amount requested but invoked a different nonstatutory factor of equity, and said that the proposed penalty would create an undue hardship for the business and was disproportionate in light of all the favorable factors. Considering the record as a whole in light of all the facts and circumstances, the penalties will be adjusted as a matter of discretion to $450 each or a total of $32,850." [Emphasis added].

In U.S. v. El Azteca Dunkirk, Inc. (“El Azteca”)(03/13/2013), which also involved a small restaurant with no history of prior violations, ICE sought high penalties of $11,000 for twenty violations (substantive violations of failure to enter proper List A, B, or C documents in section 2 and bad faith), for all past and present employees. Moreover, ICE alleged that illegal conduct on the part of the owners had taken place, but offered no evidence.

In this particular case OCAHO stated that “the facts recited in the memorandum may support an assertion that the violations are serious, but they do not support a finding of bad faith.” Moreover, OCAHO further explained that “the government has the burden of proof to demonstrate the existence of any aggravating factor by a preponderance of the evidence, see United States v. Carter, 7 OCAHO no. 931, 121, 159 (1997), and that burden has not been met with respect to the assertion of bad faith.”

OCAHO concluded that:

"The record here does not support enhancement of the government’s baseline penalties on the bases requested. Were I approaching the question de novo, a somewhat higher penalty would be assessed, but here there is no compelling reason not to give the company the benefit of the government’s original baseline penalty without the enhancements. In view of the minimal fine assessed no payment schedule will be established … El Azteca Dunkirk is liable for twenty violations of 8 U.S.C. § 1324a(b) and is directed to pay penalties in the amount of $2200." [Emphasis added.]

In US v. Seven Elephants Distributing Corp. (“Elephant”)(03/18/2013), a case in which OCAHO found that an employer’s copying of documents and attaching them to a form I-9, cannot “substitute for properly completing section 2 of an I-9 form.” Elephant’s failure to complete section 2 of the I-9s, a substantive violation, was aggravated by the fact that seven unauthorized workers were found in connection with the inspection. Yet, OCAHO reduced the fines in its decision stating that:

"The penalties the government requested are very near the maximum permissible, and appear disproportionate to the current size and status of the employer. As explained in United States v. Pegasus Restaurant., Inc., 10 OCAHO no. 1143, 7 (2012), proportionality is critical to setting penalties, and penalties so close to the maximum should be reserved for more egregious violations than are shown here, United States v. Fowler Equipment Co., 10 OCAHO no. 1169, 6 (2013). They will accordingly be adjusted to an amount closer to the mid-range of permissible penalties. For the most serious violation, that in Count I, the penalty will be assessed at $600. For the seven violations in Count II that involve the I-9s of unauthorized workers, the penalties will be assessed at $500 each. For the remaining twenty-six violations in Count II the penalties will be assessed at $400 each. The total penalty is $14,500." [Emphasis added].

In U.S. v. Siam Thai Sushi restaurant, d/b/a Four Siamese Company, Inc. (“Siam”)(03/27/2013), a case in which ICE found the employer had committed serious violations (made substantive errors) and lacked good faith for failing to complete a Form I-9 for each employee, OCAHO decided that “neither the fact that an employer’s I-9s are missing nor that they are defective is sufficient to show a lack of good faith.” And that:

"[The] penalty should be sufficiently meaningful to accomplish the purpose of deterring future violations, United States v. Jonel, Inc., 8 OCAHO no. 1008, 175, 201 (1998), without being “unduly punitive” in light of the respondent’s resources, United States v. Minaco Fashions, Inc., 3 OCAHO no. 587, 1900, 1909 (1993). Here, while Siam Thai’s violations are considered serious, most of the statutory factors weigh in its favor. Yet ICE’s proposed penalty of $935 per violation is close to the maximum permissible fine. Based on the totality of the circumstances reflected in the record as a whole and, in particular, on the respondent’s circumstances and resources, the proposed penalty will be modified to an amount closer to the mid-range of possibilities. The penalties will be set at $500 each for the eleven I-9s prepared in March and April of 2009, $450 for the I-9 prepared in September of 2009, and $400 each for the six I-9s prepared in June and July of 2010, resulting in a total of $8350." [Emphasis added].

In other words, although the government was seeking high fines for “serious violations” due to  incomplete and missing I-9s forms, because Siam is a “mom and pop” operation, OCAHO reduced the fines in accordance to Siam’s “circumstances and resources” to an “amount closer to the mid-range of possibilities.”

Although many employers may be relieved at the OCAHO’s recent willingness to be measured in its application of fines and penalties, or gone soft on fines, it still remains true that compliance is always better.  ICE can be expected to persist in its effort to extract the highest possible penalties.

 
 
 
 

CBP Publishes Interim Rule on Automation of Form I-94 Arrival/Departure Record - Eliminates Paper Forms, Streamlines Admission Process


U.S. Customs and Border Protection (CBP) today published an interim final rule in the Federal Register to automate Form I-94, Arrival/Departure Record. Effective on April 26, 2013, the rule streamlines the admissions process for individuals lawfully visiting the United States.

Readers of our alerts would recall that CBP had announced on 03/21/2013 that it has submitted to the Federal Register a rule that would automate Form I-94 Arrival/Departure Record to streamline the admissions process for individuals lawfully visiting the United States.

Form I-94 provides international visitors evidence they have been lawfully admitted to the U.S. which is necessary to verify alien registration, immigration status, and employment authorization. The automation means that affected visitors will no longer need to fill out a paper form when arriving to the U.S. by air or sea, improving procedures and reducing costs.

It is expected that once the process is fully implemented, it will facilitate security and travel while saving CBP an estimated $15.5 million a year.

Travelers wanting a hard copy or other evidence of admission will be directed to www.cbp.gov/I94* to print a copy of an I-94 based on the electronically submitted data, including the I-94 number from the form, to provide as necessary to benefits providers or as evidence of lawful admission. (www.cbp.gov/I94 ).

CBP’s technology and automation to the passenger processing environment, records of admission will now be generated using traveler information already transmitted through electronic means. This change should decrease paperwork for both the officer and the traveler.

If you wish to obtain additional information in connection with this post, please contact Hector A. Chichoni at: 305.960.2277 or at hchichoni@duanemorris.com.

This post does not constitute legal advice for, or establish an attorney-client relationship with, the reader. 

 
 
 
 

The U.S. Customs and Border Protection Announced that Has Submitted to the Federal Register a Rule that Will Automate Form I-94 Arrival/Departure Record


On March 21, 2013, the U.S. Customs and Border Protection (USCBP) announced that it submitted to the Federal Register a rule that will automate Form I-94 Arrival/Departure Record. 

Form I-94 provides foreign national visitors and workers entering the U.S. evidence they have been lawfully admitted to the U.S. which is necessary to verify alien registration, immigration status, and employment authorization.

 The automation means that affected visitors will no longer need to fill out a paper form when arriving to the U.S. by air or sea, improving procedures and reducing costs. The change will go into effect 30 days after the rule is published in the Federal Register. 

 Travelers wanting a hard copy or other evidence of admission (which is important to have for those authorized for employment for purposes of Form I-9) will be directed to ww.cbp.gov/I94* to print a copy of an I-94 based on the electronically submitted data, including the I-94 number from the form, to provide as necessary to benefits providers or as evidence of lawful admission. (www.cbp.gov/I94 ).

As part of CBP’s work to bring advances in technology and automation to the passenger processing environment, records of admission will now be generated using traveler information already transmitted through electronic means. This change should decrease paperwork for both the officer and the traveler and will allow CBP to better optimize its resources.

For more information about this post, pleae contact Hector A. Chichoni at: 305.960.2277 or hachichoni@duanemorris.com.

This post does not constitute legal advice and does not establish an attorneyclient relationship.

This rule should streamline the admissions process for individuals lawfully entering the U.S.  Many readers of this blog would recall that CBP has already eliminated the use of Form I-94 for visitors entering the U.S. under the Visa Waiver Program (ESTA).
 
 
 
 

H-1B Cap-subject Petitions Likely To Be Subject To A Lottery


On March 18, 2013, the U.S. Citizenship and Immigration Services (“USCIS” or “the Service”) announced, based  on feedback received from “stakeholders,” that it anticipates receiving “more petitions than the H-1B cap between April 1, 2013 and April 5, 2013," and that it may receive “more than 65,000 cap-subject H-1B petitions and more than 20,000 petitions filed on behalf of individuals with a U.S. master's degree or higher between April 1, 2013, and April 5, 2013.” USCIS also stated that “this could be the first time since April 2008 that the H-1B cap will require a lottery.” 

So, what does USCIS mean by the H-1B cap requiring a lottery? It means, nothing less, that USCIS will conduct a random lottery for all H-1B cap-subject petitions, which have been accepted for processing, if the number of petitions received is significantly higher than there are numbers available under the cap.

USCIS has conducted similar random lotteries for past fiscal years. In FY2008, for example, USCIS conducted a random lottery for H-1B petitions subject to cap received for processing from April 1 to April 5, because it had received a significantly higher number of petitions, almost twice as many, for the number of available spots under he cap. USCIS, however, can implement a random lottery at any time if it begins to receive a large number of petitions for a fewer number of available spots. A good example of this type of H-1B lottery is the one USCIS conducted at the end of January 2011.

However, if an employer submits an H-1B petition to USCIS on April 1, 2013 and the petition is accepted for processing; and spots are still available under the cap, then the petition will not be subject to a lottery.

No one knows exactly how quickly the H-1B cap will be reached, but our advice to petitioners is to file the H-1B petitions by April 1, 2013 to ensure that they do not miss the FY 2014 cap, or the lottery, if one is implemented.

For Further Information If you have any questions about this posting, please contact Hector A. Chichoni at hachichoni@duanemorris.com or 305.960.2277.

 

This blog should not be construed as legal advice, as pertaining to specific factual situations or as establishing an attorney-client relationship. 

 

 

 

 

 

 

 
 
 
 

The H-1B Visa Filing Deadline Is Almost Upon Us


The H-1B cap for Fiscal Year 2014 consists of only 65,000 regular visas, and an additional 20,000 are available to only individuals with advanced degrees from American universities.

 H-1B petitions for the 2013 to 2014 Fiscal Year (FY 13-14) must be received by the U.S. Citizenship and Immigration Services (USCIS) on April 1, 2013.

The April 1, 2013, deadline for the filing for new H-1B visas is approaching, and the time for employers needing to hire foreign nationals in specialty occupations in H-1B status is now. If employers do not act, they will be unable to secure an H-1B (subject to the cap) for the October 1, 2013, start date and will have to wait another year until they are able to file for H-1Bs again.

There are many reasons why employers do not meet the H-1B filing deadline. Sometimes employers simply are not acquainted with immigration law intricacies. For example, an employer may be relying on the fact that a foreign national employee in F-1 status working pursuant to Optional Practical Training (OPT) still has “plenty” of time left on his or her employment authorization. Employment authorization under OPT is only good for 12 months (or 29 months if the foreign national has a STEM degree and his or her employer is using E-Verify). Depending on when the 12 (or 29) months of OPT employment authorization cycle ends, the foreign national employee may have to stop working because he or she is unable to continue being authorized for employment until the next fiscal year’s start date. Thus, it is vital for an employer to file the H-1B visa petition under the fiscal year prior to the OPT’s expiration, even though there still may be plenty of time left of employment authorization.

Furthermore, employers often hire foreign nationals in other nonimmigrant classifications whose status may also be soon expiring and whose only option to continue working for that same employer is to file for a change of status to H-1B, subject to the cap now.

Likewise, last year during the “crazy” H-1B filing season, many applicants did not get an H-1B visa because the petitions were not filed in a timely manner. In addition, many H-1B cases failed to make the deadline because they were not “properly filed.”

Every year, many employers experience economic hardship as a direct result of failing to meet the H-1B cap filing deadline. It is impossible to predict when the new FY 13-14 H-1B cap will be exhausted, but it is anticipated to be exhausted very quickly.

The U.S. Department of State’s April 2013 Visa Bulletin provides additional information on the availability of immigrant numbers during April 2013.

For Further Information If you have any questions about this Alert, please contact any Hector A. Chichoni at hachichoni@duanemorris.com or 305.960.2277.

 
 
 
 

USCIS Temporarily Suspends the Use of VIBE in the Processing of H-2A Agricultural Visa Petitions


On June 1, 2011, USCIS announced it was suspending temporarily the use of the Validation Instrument for Business Enterprises (VIBE) for the H-2A agricultural guest-worker program. VIBE relies on company information contained in the Dun & Bradstreet database. If this information does not match information provided by a petitioning employer, the immigration petition will be placed on hold until the records can be rectified. Usage of the tool has significantly slowed processing of all types of business-based visa petitions, which has greatly impacted H-2A employers due to the time sensitivity of agricultural jobs, thus necessitating the temporary suspension. Employers contemplating filing of any type of visa petition may want to review company records in Dun & Bradstreet to ensure that they are correct and up-to-date.

 
 
 
 

E-Verify Launches RIDE Program to Include Driver's License Verification; Starts with Mississippi


On June 13, 2011, U.S. Citizenship and Immigration Services (USCIS) launched the Records and Information from DMVs for E-Verify (RIDE) program. Once fully functional, the RIDE program will enable the E-Verify system to check driver's license information provided by employees against what is contained in state motor-vehicle records. Currently, Mississippi is the only state participating. At this time, 4,336 employers representing more than 9,000 worksites in Mississippi use E-Verify.

 

USCIS reports that more than 80 percent of employees present driver's licenses for I-9 completion; therefore, this tool may be beneficial in helping to improve E-Verify's accuracy and to combat document fraud. The agency's ultimate goal is to extend this program to all state departments of motor vehicles (DMVs) nationwide.

 

This is part of a strategic expansion reported in the Government Accountability Office's December 2010 report. Prior E-Verify, enhancements included the addition of U.S. passports to the photo-matching process in September 2010.Employers should be aware that full implementation of RIDE will likely lead to a large increase in tentative nonconfirmations due to discrepancies and errors in state motor-vehicle databases.

 

 

 
 
 
 

Summer Will Be Sweltering for 1,000 Employers Caught in Latest ICE Crackdown


This article was originally published in Human Resources News by HR Hero (M. Lee Publishers).  It is reproduced here with permission.

 

Summer Will Be Sweltering for 1,000 Employers Caught in Latest ICE Crackdown

By Holly Jones

 

Temperatures aren’t the only things heating up this week. On Wednesday, June 15, the Obama administration shifted the ever-intensifying immigration dialogue back to federal turf when U.S. Immigration and Customs Enforcement (ICE) announced that it will begin conducting its second round of immigration audits this year.

 

Authorities with ICE, a division of the Department of Homeland Security, declined to name the businesses that will be targeted or their locations, but at least 1,000 companies soon will be subject to inspection of their I-9 forms and other hiring records. The businesses range in size and reportedly include those “critical to infrastructure and key resources."

 

The goal of these investigations is to ensure that companies of all sizes and in all states are hiring only individuals who are authorized to work in the United States. A similar round of audits was conducted in February, bringing the total for the fiscal year to a record 2,338 audits. Additionally, over $7 million in fines have already been assessed against employers found in violation of federal immigration laws.

 

Hector A. Chichoni, a partner with the Florida law firm of Duane Morris LLP and chair of the firm’s [Florida] immigration practice, weighed in with his thoughts on the ICE announcement: “The Obama administration has targeted employers since the beginning. It is disappointing to hear about this new round of audits, but not surprising. We predicted that a new wave of audits would take place in January 2011, when ICE announced the establishment of a new Employment Compliance Inspection Center to centralize the processing and review of I-9 employment eligibility verification forms. This new center gives ICE the ability to pursue a large number of I-9 audits simultaneously. The sad reality is that these audits create more problems than they solve. They are very costly to employers, and in times of economic downturn, they have a tremendous impact in terms of loss of productivity and are expensive to defend them. U.S. employers need creative immigration solutions that will allow them to strengthen our economy, not I-9 audits.

 
 
 
 

Navigating the Barriers to Global Mobility


"March 21, 2011 at 1:39 pm by: HR Hero Line

By Hector A. Chichoni

 

Because of tremendous advances in technology and transportation, companies are able to locate resources and skills in different parts of the world and manage them as if they were in one place. Competition for resources and skills is brutal and requires speedy and fluid access to global markets. When U.S. employers have a global workforce, HR is responsible for strategizing, planning, and frequently implementing transfers of employees internationally.

 

That can be a daunting task considering the many variables and barriers that can come up regarding transfers. Those barriers can include but aren’t limited to numerous international immigration laws and regulations that are often confusing. HR also must consider employment and benefits laws, types of assignments, compensation, allowances, taxes, social security, housing, and health care.

 

Many employees will have family concerns, including a spouse’s ability to find work and schooling for children. Finally, global transfers can be made even more difficult by cultural, social, and language differences as well as other factors, such as the war against terrorism, tsunamis, and many other different kinds of unforeseen events.

 

HR is essential to the strategic management of global mobility. Great care must be taken for transfers to work well and efficiently. Moreover, strategic management of global mobility must take into account employees’ expectations and allow sufficient time for a smooth transition to take place. Failing to manage expectations or rushing a transfer will irreparably hinder the international assignment. No wonder it is not uncommon to hear of global transfers that end in vain.

 

In most instances, the key to successful global transfers is planning well in advance. In general, HR managers have many methods at their disposal to strategically manage global mobility. For example, international HR managers can establish forward bases in other countries to allow the processing of employees as well as subcontract country-specific providers of specialty and allied services, which can assist to resolve any local issues and barriers.

 

Here are a few of the most important variables and barriers HR needs to know about to ensure smooth global transfers.

 

Immigration

 

Each country has its own immigration system. Some immigration systems are well developed with their own sets of laws, regulations, rules, and policies regarding visa and/or work permit options for employees on foreign assignment (e.g., the United Kingdom, Singapore, and Brazil).

 

Most of the world’s developed countries have established bureaucratic systems to determine who has access to their internal markets. For many, those systems are administered by a combination of at least two or three distinct government ministries or agencies under those ministries (e.g., ministries of labor and employment, interior, justice, foreign relations, and, in some cases, law enforcement). However, almost all countries, with rare exceptions, have their consular offices involved in visa issuance overseas.

 

Visas are generally obtained from embassies and consulates in the country of departure before entering foreign countries. Processing times vary depending on the consulate or embassy involved and the applicant’s nationality. Some exceptions exist.

 

Usually, employees and businesspersons may enter a country to engage in business negotiations and to begin or finalize a transaction or services agreement (the equivalent of the B-1 visitor for business visa in the United States).

 

The number of professional work visas available varies greatly from country to country. Countries often have a basic visa category for professionals with college degrees entering on a temporary basis (the H-1B visa in the United States).

 

The validity periods also differ significantly from country to country. They usually range from three months to a year, with renewals or extensions still possible. It can take from two or three weeks to three or four months to obtain work visas. Larger companies/employers with good track records tend to receive faster visa approval.

 

A great number of countries favor multinational corporate transferees — in other words, visas for “intra-company” transfers, which allow managers, executives, and those with specialized knowledge to enter and work in the country on a temporary basis (similar to the L-1A visa for managers and executives and the L-1B visa for specialized personnel employees in the United States).

 

Most HR managers and employees on foreign assignment are aware that processing times can be lengthy and unpredictable, especially as the security environment has become more rigorous since September 11, 2001. As a general rule, the key to visa approval is to present well-documented and well-qualified cases with the assistance of local specialists with excellent track records in providing legal immigration services.

 

Assignments

 

Different types of assignments are involved in global mobility: long-term, short-term, business trips, and more. Within each, there are definitions and requirements, and needless to say, every assignment also contains the potential for success or failure.

 

Depending on the employer/company, assignments longer than a year could be considered long-term assignments. Companies usually transfer the employee, as well as her family, with full relocation benefits provided. Assignments lasting less than one year could be considered short-term assignments. Short-term assignments usually come with benefits like housing, modified per diem/cost of living and hardship allowances, and tax equalization coverage.

 

Business trips are regarded as assignments lasting between one and 90 days. Employees in those types of assignments typically are paid by the home country. Instead of housing, the company places the employee in a hotel and provides a per diem allowance or reimburses her for expenses incurred.

 

Assignment Allowances

 

Some different types of incentive allowances are overseas mobility, premium, hardship, cost of living, housing, and home leave. Roughly half of U.S. companies provide mobility incentives to employees going overseas, basically paying an additional 10 to 20 percent of the gross home salary. Some companies have a salary cap for location and hardship allowances, but the majority don’t.

 

Location-dependent mobility allowances may cap at 30 or 35 percent, but some companies add additional allowances for such things as remoteness, being in a war zone, and security. For cost-of-living adjustments, a large number of companies use outside service providers (e.g., ECA International) that use a calculation of base salary, net salary, home spendable income, index, and host spendable income. Cost-of-living allowances are calculated by applying an index of spendable income.

 

Meanwhile, HR often will have to determine whether the company will provide free host housing or whether an employee contribution is required. Limits for housing allowances may also have to be set. Those limits often are determined by such things as the employee’s seniority, position/title, salary, and family size. Many of the determinations would have to include consideration for home leave and car/transportation allowances.

 

Taxes

 

Like immigration, tax issues can have a great effect not only on the employee but also on the employer. Advance tax planning is highly recommended before any international assignment, especially in cases involving long-term assignments. Advance tax queries should include qualifying periods for tax residence, treatment of foreign-source income, consideration of income tax treaties, and even social security tax equalization (totalization agreements).

 

Labor and Employment

 

Many countries don’t have “employment at will” like most of the United States does. Employers can be surprised by the extensive compensation or penalties that other countries require them to pay to employ or dismiss workers.

 

Employers expanding internationally should consider addressing not only immigration and visa issues for personnel working internationally but also things like taxes, assignments, and other issues that are a part of the much larger employment picture. While addressing those issues likely will continue to be a challenging responsibility for HR, long-term economic planning suggests that global mobility will continue, and therefore, its barriers are likely to get worse before they get easier. HR is well advised to plan ahead."

 
 
 
 

ICE Auditing 1000 More Companies' Hiring Records


 

[Read More]
 
 
 
 

Export Control Compliance and the New I-129 Form


Beginning February 20, 2011, employers filing the new Form I-129, and completing Part 6, to petition workers in the H-1B, H-1B1, L-1, and O-1A nonimmigrant categories, will have to certify, under penalty of perjury, that they have reviewed the Export Administration Regulations (“ERA”) and the International Traffic in Arms Regulations (“ITAR”), and that they have determined that either:

 

(1) A license is not required from either the U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or

 

(2) A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

 

Federal law prohibits the "export" of controlled technology and technical data to certain foreign nationals in the United States without a license. In completing Part 6, the petitioning employer is now required to understand U.S. export control law. Laws and regulations governing export controls are complex.

 
 
 
 
 

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Michael W. Casey III, Kevin E. Vance, Mark J. Beutler, and Teresa M. Maestrelli practice labor and employment law, with a particular focus on labor and employment litigation, including Title VII, ADEA, ADA, Florida Civil Rights Act, and whistleblower claims, as well as non-compete litigation, in state and federal trial and appellate courts in Florida and throughout the United States. They also represent employers before the National Labor Relations Board (NLRB), the National Mediation Board (NMB), the U.S. Department of Labor, including the Wage and Hour Division and the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and various state and local agencies, as well as in arbitrations, collective-bargaining negotiations and union representation elections. Hector A. Chichoni practices in the area of US and global immigration law. He chairs Duane Morris's Florida Immigration Practice. The editors of Chambers USA 2010 also selected Mr. Chichoni as a "Leader in the Immigration Field." He has represented a vast number of corporate and individual clients throughout his career ranging from premier US health care organizations, Fortune 100 and Fortune 500 companies, multinational corporations and universities to doctors, professors, researchers and students. His international experience includes handling matters relating to export controls and global corporate compliance and business transactions. He has represented clients in a wide variety of cases before the US Immigration Court.
© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.