Margaret D. Stock Counsel to the Firm - NHRMA Conference - Stock.pdfv © 2012 Lane Powell PC From...

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© 2012 Lane Powell PC © 2012 Lane Powell PC

Hiring Global Talent through

the Use of US Immigration

Laws

Margaret D. Stock

Counsel to the Firm

© 2011 Lane Powell PC

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ASHRM 3/22/2011

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From “Alien” to “Citizen”

“Alien”

Non-immigrant

Immigrant (“green card”)

Citizen ASHRM 3/22/2011

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“Alien”

Non-immigrant



5-15 years

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Why does it take so long?

● Artificial quotas that do not relate to the

realities of a global world

● Complexity of the process

● Constantly changing laws, regulations,

and policies

● Government inefficiency

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“Alien”

Non-immigrant



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Popular Temporary Visas for

Global Employers

● B-1 (business visitor) in lieu of H-1b

● E-1/E-2 treaty trader, treaty investor

● F-1 (student) on OPT

● H-1B (professional worker) and H-1B1

● J-1 (exchange visitor)

● L-1 (intra-company transferee)

● O-1 (outstanding individual)

● TN (Canadians and Mexicans only)

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Additional temporary options

● E-3 (Australian specialty workers)

● H-2 (temporary worker)

H-2A

H-2B

● H-3 (trainee)

● Q (cultural exchange)

● Spouses of L-1 and E workers

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The Dual Intent Doctrine

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H-1B Requirements

● Job Requires a Bachelor’s Degree or

higher

● Foreigner has a Bachelor’s Degree or

higher

● Quota Number is available (or exemption

applies)

● Labor Condition Application has been

certified by DOL

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Key points about H-1B Visas

● H-1B visa holders can work for you

indefinitely—if you file for a green card for

them

● H-1B visas should mostly be reserved for

people who have bachelor’s degrees (or

higher)

● H-1B caps do not apply to all employers

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What about the new “DREAM”

policy?

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© 2012 Lane Powell PC Lane Powell

Spears Lubersky

LLP

“Green Card” Options

Labor Certification (“PERM”)

Converting L-1 to multinational manager or executive

Extraordinary ability

National Interest Waiver

Marriage

The Lottery

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Types of Categories

● (EB-1) Priority Workers: Extraordinary ability

Outstanding researcher

Multinational executive and manager

● (EB-2) Members of the Professions with Advanced Degrees & Persons of Exceptional Ability

● (EB-3) Skilled Workers, Professionals, and Other Workers

● Job Creation Investor Visa

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Pitfalls to Avoid #1

● Don’t let a person start working before

the person is authorized to work for you

● Solution: Understand the rules

regarding employment of foreign

workers—in some statuses, a person

can go to work immediately, in others,

you must have advance approval

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● Don’t let a foreign worker’s status

expire before you act to renew or

extend the status

● Solution: Calendar status expiration

dates and plan to file to change or

adjust status early

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● Don’t assume that immigration

processing will go smoothly

● Solution: Understand the complexities

of the immigration process and the

points where things may go wrong

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● Don’t assume that timing won’t be an

issue

● Solution: Understand how long it takes

to get approval for the different

immigration statuses and the steps

involved, and whether faster

processing is possible in an urgent

situation

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● Don’t apply for immigration status for

someone who is inadmissible to the US

● Solution: Vet people thoroughly with

an immigration lawyer before you

sponsor them

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● Don’t let a merger or acquisition go

through without checking on employee

immigration issues in the change of

ownership

● Solution: Review the immigration

status of the workforce before the

merger or acquisition, and plan for a

smooth transition

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Speeding Things Up

● Understand the agency culture

● Be organized and use checklists

● Ask for premium processing

● File in the correct location

● Pay the correct fees

● Sign the forms

● Use blue ink

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Speeding the Process

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Speeding the

Process

VIBE

Validation

Instrument

for Business

Enterprises

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Speeding the Process

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Margaret D. Stock Counsel to the Firm - NHRMA Conference - Stock.pdfv © 2012 Lane Powell PC From...

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Transcript of Margaret D. Stock Counsel to the Firm - NHRMA Conference - Stock.pdfv © 2012 Lane Powell PC From...