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Bar News - April 15, 2015


Labor & Employment Law: Immigration Basics: Foreign Nationals as Employees

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The H-1B cap opens every year on April 1 for employment beginning Oct. 1 of that year.

In this global market, many attorneys have clients outside the United States, and the hiring of foreign national employees at US companies is on the rise. This limited immigration overview provides some basic understanding and considerations for advising clients who employ foreign nationals.

Generally, there are two types of immigration cases: non-immigrant and immigrant. Non-immigrant cases involve temporary permission to stay in the US for a specific purpose, while immigrant cases involve permission to permanently reside in the US. There are many types of visas, both non-immigrant and immigrant, available to foreign nationals. For those seeking temporary employment in the US, an F-1, H-1B, L-1, or TN visa may be appropriate, as well as others that are used less often. For individuals looking to permanently live and work in the US, securing an immigrant visa would be more appropriate.

The F-1 visa is issued to foreign students to study in the U.S. When in F-1 status, a student can apply for Optional Practical Training (OPT), which is a temporary employment period directly related to the student’s field of study. F-1 students are permitted to receive up to 12 months of OPT during or after their degree program. All income earned is subject to applicable federal, state, and local income taxes. However, F-1 students are exempt from Social Security and Medicare Taxes. Additionally, if a student is in OPT after his or her degree program ends, and the degree is in certain science, technology, engineering, and mathematics (STEM) fields, he or she may also be eligible to receive a 17-month extension of their OPT, assuming the employer is E-Verify.

The H-1B visa is issued to professionals to work in the US in a specialty occupation (i.e. requiring at least a bachelor’s degree) for up to three years with three-year extension available, for total of six years. Availability of the H-1B visa is limited by an annual allotment of visas for each fiscal year (“the H-1B cap”). Under current law, there are 65,000 H-1B visas available each fiscal year, with an additional 20,000 available for recipients of US graduate degrees. The H-1B cap opens every year on April 1 for employment beginning Oct. 1 of that year. Due to the popularity of the H-1B visa, the H-1B cap is almost always reached on the first eligible filing date, resulting in a five-day lottery period for petition filings.

L-1 visas comes in two varieties, the L-1A and the L-1B, and are issued to employees of foreign entities wishing to transfer to a US office location. L-1A visas are reserved for executives and managers, while L-1B visas are available to those with specialized knowledge related to the company’s interests. Both visas are available for up to three years (with extensions available for total of seven years for L-1A and five years for L-1B).

The TN visa, available only to Canadian and Mexican citizens, is issued to professionals seeking to engage in business activities with a US employer under NAFTA for up to three years, with unlimited renewals. Allowed occupations are defined by NAFTA and include positions such as engineer, computer systems analyst, and professor.

Unlike the non-immigrant visa, the immigrant visa is more limited and is commonly obtained through employment. Generally, for individuals to use the employment-based method, a three-step process must be followed that includes the US Department of Labor; the US Citizenship and Immigration Services (USCIS); and the US Department of State or USCIS, respectively. The first two steps must be completed by the employer, while the third can be completed directly by the employee.

Individuals outside the US apply for the immigrant visa at the US Consulate, while individuals inside the country apply to USCIS. To file either application, an employee must have a current priority date.

Employers hiring foreign nationals should also be familiar with Form I-9 completion for non-US citizens. Employers must be advised regarding permitted verification documents and should be reminded that specific documents cannot be required.

Employers who do not properly complete Form I-9 are subject to potential civil fines and criminal liability. Incurred fines can range from $110 to $1,100 per violation, depending on the severity of the errors. It is important to be proactive regarding Form I-9 compliance, and employers should be encouraged to carefully review existing forms and seek independent audit services, if necessary.

For those working in the global arena, it is critical to understand the immigration options available to employers and their foreign national employees.


Autumn Misiolek Tertin

Autumn Misiolek Tertin is an Associate Attorney at GoffWilson, where she practices immigration law exclusively. Tertin has been assisting businesses and publicly traded companies with their global immigration needs since 2005.

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