Immigration Law for U.S. Companies
Employment Eligibility Verification
All U.S. Employers are subject to U.S. Immigration Laws. Each U.S. employer is required to check immigration documents of employees hired after November 6, 1986 and complete the Employment Eligibility Verification Form (Form I-9) accurately within 3 days of hire to ensure that the employee is eligible to work in the United States. Failure to verify the immigration documents for employees and/or complete the Form I-9 accurately could subject the employers to both civil and criminal penalties. Attorney Dye-Chiew assists U.S. companies with their questions on how to complete the Form I-9 accurately. Ms. Dye-Chiew recommends that U.S. companies perform a self-audit on their Form I-9s annually. Please use the “U.S. Employer’s Form I-9 (Employment Eligibility Verification Form) Audit Checklist” when conducting your self-audit.
Recently, the USCIS has determined that it has the authority to conduct site visits to verify the information in an H-1B or an L petition filed by a U.S. company. For more information on these site visits, please read: Will the U.S. Citizenship and Immigration Services (USCIS) visit your office?
Assisting U.S. companies employ foreign workers
Ms. Dye-Chiew also helps U.S. Companies and individual professionals who want to work in the United States obtain the appropriate employment-based nonimmigrant status or visa. In order to qualify for any of the employment based nonimmigrant visas, foreign workers must meet very specific criteria. To review a list of all the different nonimmigrant employment based visas and the specific requirements which are available under the Immigration and Nationality Laws of the United States, please read the following: “Alphabet Soup of Nonimmigrant Employment Visas”.
Employment based nonimmigrant visas that Ms. Dye-Chiew most often assists her clients in obtaining are:
- Specialty occupation workers (H-1B) Visas allow U.S. Companies to employ professional workers. In order to qualify for this visa, the U.S. Company which desires to employ the foreign worker must show that:
- The position being offered to the professional foreign worker is one which requires, as a minimum, a bachelor’s degree in a specific field of study for entry into that position;
- The foreign worker has a bachelor’s degree or the equivalent in that specific field of study;
- The U.S. Company must file the labor conditions application with the Department of Labor and make the following attestations: (i) the foreign worker will not be treated differently from U.S. workers, (ii) the U.S. company will pay the employee at least the prevailing wage for the position offered, (iii) there is no strike or lockout in that position and (iv) appropriate notification has been given to other employees or bargaining unit; and,
- There is a cap on the number of new H-1B visas available in each year. For fiscal year 2008 and 2009, the cap was reached 6 months prior to the first day of that respective fiscal year.
- Australian specialty occupation workers (E-3) Visas are similar to the H-1B Visas discussed above except that they are only available for persons who are citizens of Australia. Although there is an annual cap of 10,500 new E-3 visas which may be issued in a fiscal year, this cap has not yet been met.
- Professionals entering the United States pursuant to the North American Free Trade Agreement (TN). The NAFTA or TN Visa allows U.S. Companies to employ foreign professional workers who are citizens of Canada or Mexico in those professional positions which are specifically listed in the North American Free Trade Agreement (NAFTA). The foreign worker must be entering the United States to work in one of the listed positions and must meet the requirements which are listed therein. For a list of professions, please see NAFTA Professionals List.
- Intra-company transferees (L) Visas allow multinational organizations to move their executive, managerial or essential employees to work for its related organization in the United States. In order to qualify for this visa, the U.S. Company which desires to employ the foreign worker must at least be able to show that:
- The U.S. Company is a branch, subsidiary, affiliate or parent of foreign company operating outside the United States;
- The foreign worker has been employed by foreign entity as an executive, managerial, or essential worker employee for at least one year in the last three years; and,
- The foreign worker is entering the United States in order to be employed as an executive, managerial or a specialized knowledge employee.
This visa may also be used by a multinational organization to send an executive or managerial employee(s) to open a new office of the multinational organization.
To review how an executive or managerial employee under this L visa category may qualify to apply for an immigrant visa (or green card), please read: Lawful Permanent Residence or Green Card for International Executives or Managers.
- Treaty investors (E-2) Visas allow investors who are nationals of certain countries to enter the United States to oversee their investment in the United States or to allow supervisory or specialized knowledge employees of a company which has invested in the United States and who are nationals of the same country to enter the United States to oversee the investment. The requirements of the E-2 visa are as follows:
- There must be a Friendship Commerce and Navigation Treaty between the foreign country of which the foreign national is a citizen and the United States which allows for E-2 visas. A list of these countries can be found at footnote 4 in “Alphabet Soup of Nonimmigrant Employment Visas”.
- The foreign company or the investor must have invested or be actively in the process of investing in the United States (generally through investment in the U.S. Company).
- The Investment must be substantial and non-marginal.
- The Nationality of the owners of the U.S. Company and the foreign worker must be same.
- The foreign worker must be entering the United States to develop and direct operations of the U.S. Company or as a key managerial, supervisory or essential employee.
- Persons with extraordinary ability (O) Visas allow a U.S. Company to employ a foreign worker who has extraordinary ability in the sciences, arts, education, business or athletics as demonstrated by international acclaim. These foreign workers must be one of a small percentage of persons who have reached the top of their respective fields. In addition to showing that the foreign worker meets the criteria of being of extraordinary ability, the U.S. Company must obtain a consultation from an appropriate labor union to confirm that the person meets those criteria.
- Religious workers (R) Visas allow a bona fide religious organization to bring in ministers, persons working in a religious vocation or persons working in a professional capacity in a religious occupation to provide such services in the United States. In recent years, the U.S. Citizenship and Immigration Service has requested extensive documentation from the religious organization and even conducted on-site investigations to prove to that it is a bona fide organization. The foreign religious worker must show that he/she has been a member of the same religious denomination for a period of at least 2 years.
- Trainee visas (H-3) Visas are intended to allow foreign trainees to obtain experience in the United States in areas that are not available in the home country. In order to qualify for this visa, the U.S. Company which desires to employ the foreign trainee must show that:
- The foreign trainee is entering to engage in training program not available in home country;
- The Training will not place the foreign trainee in position involving regular employment;
- The Training will not involve productive employment unless incidental and necessary to the training; and,
- The Training will benefit the foreign trainee in pursuing career abroad.
As described above, a more detailed description of the requirements of each of these visas can be found in “Alphabet Soup of Nonimmigrant Employment Visas”. Ms. Dye-Chiew can assist the U.S. Company, the foreign professional worker and/or the foreign entrepreneur in determining which nonimmigrant visa described above or immigrant visa best suits your needs in order to accomplish your immigration and career goals.
Contact the Law Offices of KahBo Dye-Chiew in Honolulu, HI
Ms. Dye-Chiew, one of Woodward and White’s Best Lawyers in America®, personally attends to every client she serves. She is the sole point of contact for professionals who need a trusted partner to help reach their immigration goals. Ms. Dye-Chiew’s personal and professional immigration experience allows her to provide exceptional service to her business clients.