IMMIGRATION ISSUES FACING CONTRACTORS TODAY

1. IMMIGRATION ISSUES FACING CONTRACTORS TODAY Presented by: Rebecca Winterscheidt, Esq. Snell & Wilmer, L.L.P.

2. MAJOR CHANGES AT FEDERAL LEVEL • INS no longer exists • Part of Homeland Security • BCIS (Bureau of Citizenship & Immigration Services) • Special Registration • Port of Entry Registration • Call-in Registration • Change of Address Requirement • Security Checks

3. NON-IMMIGRANT ADMITTED FOR LIMITED DURATION CAN ONLY WORK IF AUTHORIZED AND THEN ONLY FOR SPONSOR FAMILY CAN TAG ALONG BUT CANNOT WORK IMMIGRANT CAN REMAIN IN US PERMANENTLY CAN WORK FOR ANY EMPLOYER FAMILY CONSIDERED IMMIGRANTS AS WELL-ENTITLED TO ALL PRIVILEGES

4. B – VISITOR E – TREATY TRADER/ INVESTORS F – STUDENTS H-1B – SPECIALTY OCCUPATIONS H-2B – TEMPORARY WORKERS PERFORMING SERVICES J – CULTURAL EXCHANGE L-1 – INTRA-COMPANY TRANSFEREE O – EXTRADORINARY ABILITY IN ARTS, SCIENCES, EDUCATION, BUSINESS OR ATHLETICS TN – TRADE NAFTA VISA WAIVER NON-IMMIGRANT

5. IMMIGRANT • PERMANENT RESIDENCE “GREEN CARD” • THROUGH FAMILY • THROUGH WORK • Labor Certification • I-140 • I-485 (Adjustment of Status)

6. B VISITOR VISA B-1Visitors for business • OK to engage in business but not employment • OK to attend conferences, negotiations, meetings, etc. • OK to consult with business associates • Do profits from business activity accrue abroad? • Who is directing alien’s activities? • Who is paying alien?

7. B-2Visitors for pleasure • Vacations • Pleasure trips

8. TN CATEGORYPROFESSIONALS ADMISSIBLE UNDER NAFTA(Canada and Mexico) REQUIREMENTS • Alien must be citizen of either Canada or Mexico. • U.S. activity must be in profession listed on Schedule 2. (see article) • Alien must possess credentials listed on Schedule 2 for the intended position.

9. DOCUMENTATION • Proof of Canadian or Mexican citizenship • Evidence that the intended U.S. activity is one listed on Schedule 2 • Evidence that the alien has the necessary credentials listed in one of the Schedule 2 fields

10. Company letter in support of TN petition • Filing fee • For Mexican TNs only: • Approval by Department of Labor of labor condition application (LCA) • Approval by BCIS of TN petition supported by the approved LCA

11. H-2B Temporary Non-Agricultural Workers Need one of the following: 1) One-time occurrence Job vacancies caused by labor shortages in permanent workers don’t qualify • Construction workers to repair hurricane damage • One-time purchase of piece of equipment needing overhauling=one time need for mechanics

12. 2) Seasonal need Need is traditionally tied to season of year that is of a recurring nature • Landscapers during Spring growth months • Ski instructors during ski season

13. 3) Peakload need • Need to supplement permanent workforce on temporary basis due to short term demand • Cannot become permanent Ex: construction workers employed to a single project Can’t use when ongoing need for contracted labor

14. 4) Intermittent Need Must show have not hired these types of workers permanently but have occasional need for them

15. Mechanics of Obtaining an H-2B • Must file a labor certification with the DOL • Not more than 120 days before workers needed • Should file at least sixty (60) days before needed • 3-day advertising – Overseen by state department of labor • Regional Office Review

16. File • labor cert from DOL with BCIS (can file even if DOL denied certification) • I-129 & H Supplement • Letter in support • Filing fee • Expedite $1,000 fee 3. Cable to Consulate for Visa issuance

17. H-1B VISAS This category is limited to aliens who work in “specialty occupations”. If approved, the initial period of stay on an H-1B visa is three years. That visa can be extended three years, for a total period of stay of six years.

18. 1. REQUIREMENTS • Alien must come to the United States to perform services in a specialty occupation • A specialty occupation requires: • Theoretical and practical application of a body of highly specialized knowledge, and attainment of a bachelor’s degree (or higher degree) in the specific occupational specialty

19. Some positions that are clearly specialty occupations are: • Engineers • Accountants • Scientists • Systems Analyst • Architects • Technical Publications Writers • Management Consultants

20. 2. BASIC DOCUMENTATION • The alien must first obtain a prevailing wage determination from the State Department of Economic Security. Information needed for this form includes the following: • alien’s job title • a detailed job description, and • the minimum requirements for the job • After obtaining the prevailing wage from DES, a Labor Condition Attestation (Form ETA 9035), in which it is stated that the alien will be paid at or above the prevailing wage, must be filed with the U.S. Department of Labor.

21. The H-1B application itself consists of filing forms I-129 and H Supplement, which require detailed information about the employer company (including total number of employees and gross annual income). The H-1B application must also include a letter on the employer company’s letterhead describing the nature of the position offered, and the qualification of the alien.

22. The alien should acquire the following documents for attachment to the petition: • Educational diplomas (translated if not in English). If the degree was obtained outside the U.S., an evaluation will be necessary to attest to the fact that the foreign degree is equivalent to a U.S. degree.)

23. Updated resume; • Employment letters from previous employers attesting to the fact that the alien has the experience required to meet the minimum job requirements; and Other documentary evidence (certificates, etc) demonstrating that the alien meets the minimum job requirements.

24. PORTABILITY OF H-1B • Applies only to current H-1B holders • New employer can start alien on workforce as soon as H-1B petition received by INS • Do not have to wait for approval • Subject to 6-year rule.

25. H-1B ISSUES • Premium processing available $1,000.00 – 15 day decision • Equivalency Evaluations “3 for 1” rule • H-1B and L time counted together for 6 year max • Dual intent Visa

26. ACKNOLWEDGEMENT I, _______________, acknowledge that in order for ________________ to petition for ___ status on my behalf, it must request with the Bureau of Citizenship & Immigration Services that I be given work authorization for a specified period of time. I hereby acknowledge that by completing the required documentation for my work authorization, ___________ has not entered into an employment contract with me. I further acknowledge that ________ may terminate me at any time, with or without cause.

27. PENALTIES FOR HIRINGUNAUTHORIZED ALIENS The following penalties can be composed on employers who have knowingly hired persons not authorized to work in the United States: First Offense: $275 to $2,200 civil fine for each unauthorized worker Second Offense: $2,200 to $5,500 civil fine for each unauthorized worker

28. Every Offense after second offense $3,300 to $11,000 civil fine for each unauthorized workerPattern or Practice $3,000 for each unauthorized worker plus up to six months’ imprisonment for the entire pattern or practice

29. VISA LOTTERY • Green card give-away. • Available each year. • Entry period – determined each year (Ended October 20, 2002 for this year) • No Filing Fee • Certain Countries extended • To learn more: travel.state.gov/visainstructions.html

30. THE END Contact Information: Rebecca Winterscheidt Snell & Wilmer, L.L.P. One Arizona Center Phoenix, AZ 85004 Telephone: (602) 382-6343 Fascimile: (602) 382-6070 E-mail: winterb@swlaw.com