and Lily
S. Hensel
Examining Maintenance Of Status Prior To Offering Employment
Often, when an employer wishes to hire an employee, the employer wants the hiring done immediately. With an expedited procedure known as the USCIS Premium Processing Service, employers can now hire foreign national workers much more quickly than before this system was put in place.48 Moreover, under a new law, the American Competitiveness in the 21st Century Act (AC21), two categories of foreign employees (workers with H-1B visa status and certain adjustment of status applicants who hold open market EADs), may now invoke a right of "portability" and likewise change employers more quickly than before.49
While these provisions offer greater worker mobility, employers or foreign workers should nonetheless counsel their clients to watch out for status problems that may cause a delay in, or prohibit, the hiring of the foreign national. For example, an H-1B or L-1 employee who has recently been terminated by a prior employer may not be eligible for a change of status or change of employer petition approval even though the worker's period of authorized stay on the entry document issued upon arrival to the country has not expired. USCIS has stated that it is considering whether to allow a certain grace period that would permit a recently terminated H-1B employee to seek new employment with a United States company without first leaving the United States, but USCIS has clearly stated that, currently, no grace period exists.50 In other words, if an H-1B employee is terminated, and does not immediately leave the United States, the USCIS may consider the employee out of status the next day.
While USCIS can exercise the discretion in extraordinary circumstances51to grant a change of employer or change of status petition on behalf of such an individual, it need not do so.52 Since September 11, 2001, there have been signs that USCIS will limit its discretion to permit a grace period.53 In view of the possible issues involved with recently terminated foreign nationals seeking new jobs, employers should investigate the probability of a petition approval before expending money on costs associated with the filing of the petition.
Professional Employer Organizations
Many companies outsource their human resource function to what are sometimes called professional employer organizations (PEOs). This outsourcing can result in a situation where a foreign national, for whom the company submitted a petition with the USCIS, may actually be paid and nominally employed or co-employed by another entity.54 This situation has generated confusion among attorneys and employers as to which of the entities is or should be treated as the sponsoring "petitioner" for purposes of immigration petition filings.
The USCIS has informally addressed the issue of PEOs in the H-1B context in correspondence, stating that "an entity can file an H-1B petition on behalf of an alien even though the alien's salary is paid from another source, provided that an employer-employee relationship exists. The existence of the employer-employee relationship can be demonstrated by evidence establishing that the entity has control over the H-1B nonimmigrant even though the alien's salary is paid from another source."55 In earlier informal correspondence addressing employee leasing companies, the USCIS indicated that if both companies exercise a degree of control over the alien, "one of the firms involved in the leasing agreement would either have to designate itself as the petitioner for immigration purposes, provided it meets the regulatory definition of a United States employer, or both firms could petition for the alien."56
Thus, when an employer has outsourced more than the payroll function, it runs the risk of being deemed a co-employer for immigration purposes. Under certain circumstances, to avoid the need for both entities to file a petition on behalf of each nonimmigrant worker, it may be possible for the company and the PEO to execute a written agreement designating which party will serve as the employer for all immigration purposes. It may be safer, however, for H-1B and other nonimmigrant workers to be taken off of the payroll of the PEO and instead be paid and supervised solely by the petitioner.
Immigration Law Expertise In Employment Litigation
Immigration legal issues are increasingly prevalent in employment litigation, even if the lawyers on both sides realize the importance of immigration concern only belatedly. For example, a wrongful termination suit may be based on the employer's alleged flouting of public policy and retaliation. The terminated worker may claim that the firing arose because he/she objected to the employer's violation of federal immigration law, e.g., by failing to pay H-1B "required wages" or the "prevailing wage" in a labor certification case. Although the general rule is that an expert witness may not opine on the law (given that opposing counsel and the judge are lawyers, and legal questions are the province of the court), immigration law, particularly, the arcane immigration legal system and process, can be a proper subject of expert testimony.57
* * * * * * * * * * *
* Angelo Paparelli is Managing Partner of Paparelli & Partners LLP (www.entertheusa.com), a nationally renowned immigration specialty firm in New York, NY and Irvine, CA, and President of the Alliance of Business Immigration Lawyers (www.abil.com). Selected as the world's leading corporate immigration lawyer by The International Who's Who of Business Lawyers (2005 & 2006), and named a first-tier business immigration lawyer by Chambers USA 2008, he co-authors the "Immigration" column for the New York Law Journal, writes an immigration public policy blog (www.nationofimmigrators.com), and serves as an expert witness and consultant for employers and their litigation counsel on immigration issues in a wide array of courtroom disputes.
Lily S. Hensel practices immigration law, with a focus on employment-based transactional and litigation matters with Paparelli & Partners LLP. She previously practiced in the immigration group of a national employment law firm. Copyright © 2008 Paparelli & Partners LLP. Published with permission. All rights reserved.
Footnotes (continued)
48. Premium Processing allows employers to pay a $1000 fee to USCIS in return for the promise of an adjudication of certain petitions within 15 calendar days (or, if additional information is requested from the employer, within fifteen calendar days after the request is answered by the employer minus the number of days the request for additional evidence is pending). For information on the premium processing program, see USCIS website, http://tinyurl.com/yy6kxc.
49. For a discussion on AC21 and "portability" issues, see Angelo A. Paparelli and Janet J. Lee, "'A Moveable Feast': New and Old Portability Under AC21 § 105," Bender's Immigr. Bulletin (Feb. 1, 2001).
50. See Yoshiko I. Robertson, "Avoiding the Abyss: H-1B Strategies When Facing Reductions in Force," Immigration and Nationality Law Handbook, vol. 2 (AILA 2001); Naomi Schorr & Stephen Yale-Loehr, "Corporate Cuts: Reductions in Pay and Hours for Nonimmigrants," Bender's Immigr. Bulletin (Apr. 15, 2002).
51. Extraordinary circumstances are defined as circumstances "beyond the control of the applicant or petitioner, and the Service (USCIS) finds the delay commensurate with the circumstances." 8 C.F.R. § 214.1(c)(4)(i).
52. Michael Pearson, Memorandum to Service Center Directors et al (HQ 70/6.2.8), "Initial Guidance for Processing H-1B Petitions," (June 19, 2001).
53. One official from the USCIS Nebraska Service Center commented that an H-1B employee terminated from his H-1B employment thirty days ago would be out of status too long for the USCIS to exercise favorable discretion to grant a change of employer petition. AILA, USCIS Nebraska Service Center Liaison Minutes, posted on AILA InfoNet, Doc. No. 01101833.
54. For a further discussion of outsourcing, see Angelo A. Paparelli, "Yes, We Have No Employees: The U.S. Immigration Consequences of Corporate Outsourcing and Secondment," 13 Immigration Law Report No. 16 (Aug. 15, 1994).
55. Letter from Efren Hernandez III to Kari Ann Woodward (Dec. 20, 2000), posted on AILA Infonet, Doc. No. 01062632 (June 27, 2001). Immigration counsel should note that adjudicators are not bound by such correspondence. Matter of Izumii, Int. Dec. (BIA) 3360, 1998 WL 483977 (BIA) (Jul. 13, 1998) ("[The] OGC [Office of General Counsel of the former Immigration and Naturalization Service] is not an adjudicative body and is in the position only of being an advisor; as such, adjudicators are not bound by OGC recommendations.") Rather, the OGC and the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC), an entity within the U.S. Department of Justice, Civil Rights Division helps protect individuals from employment discrimination based on immigration status and unfair documentary practices when verifying the employment eligibility of employees. Those discriminated against may file charges with OSC and be awarded back pay and reinstatement, among other remedies.
56. Letter from Yvonne M. LaFleur, Chief, Business & Trade Services, Adjudications, to H. Ronald Klasko (Feb. 5, 1996), reproduced at 73 Interpreter Releases 342 (Mar. 18, 1996).
57. See Lozano et al. v. City of Hazelton, 2007 U.S. Dist. LEXIS 13295 (M. D. PA, February 27, 2007) pp. 14-15 ("While any legal conclusions from Mr.Yale-Loehr [plaintiff's immigration expert] about whether Hazleton's ordinances violate the Constitution would be inappropriate, we agree with the plaintiffs that testimony about the nature and extent of federal immigration law--a large and complex body of doctrine--would help us to reach our own decision about the constitutionality of the ordinances.) The court in Lozano struck down a municipal ordinance requiring, inter alia, that employers comply with supplemental employment-verification requirements that were preempted by federal immigration law. See also Lozano v. City of Hazleton, No. 3:06-cv-1586 (U.S. Dist. Ct., M.D. PA July 26, 2007), posted on AILA Infonet, Doc. No 07072666.
58. For information on subjects involving the maintenance of status, see Angelo A. Paparelli and Susan K. Wehrer, "Troubled Times for U.S. and Foreign Clients: Immigration Tips All Lawyers Can Use," Orange County Lawyer (March 2002); see also, Angelo A. Paparelli, "Importance of Maintaining Status after September 11," American Immigration Law Foundation, (2002).
59. Form AR-11 is available on the USCIS website, http://www.uscis.gov/files/form/ar-11.pdf .
60. INA § 265(a), 8 U.S.C. § 1305(a). Evidence of the USCIS' newfound interest in enforcing this law is its reference to this reporting requirement in recently issued proposed rules on changes to the B visa category. "[T]he Service is restating these existing requirements [reporting requirements] here for the benefit of readers, so that aliens who apply for nonimmigrant status will be advised of them." 67 FR 71 (April 12, 2002).
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