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    Gregg Rodgers devotes his practice to management-oriented immigration and employment law. His immigration practice encompasses advice to and representation of businesses, individuals, and their families as they plan for and ...

With no fanfare and minimal notice, the government has significantly increased the penalties that can be assessed for a variety of offenses related to the Employment Eligibility Verification Form I-9.

Now, a “mere” error on the paperwork, such as failure to check a box or confirm that the employee dated the document, can result in a penalty of between $216 and $2,156. Previously, the penalty ranged from $110 to $1,100. This almost doubling of the penalty range is significant because penalties for paperwork errors can be the largest aspect of government fines, even for the best of employers.

The article was first published in Duff on Hospitality Law blog.

November 2016 held more than one shock for many in America. Not only did the presidential election cycle come to a dramatic close, but the government introduced its new Form I-9, Employment Eligibility Verification.

First introduced in 1986, the “Form I-9, Employment Eligibility Verification,” must be completed for every new employee. Over time, it has been expanded from one page to two. And its instructions have grown from less than a page, to six pages for the 2013 edition to 15 pages of Instructions – more than four for the employee section alone – for the 2016 edition in English and in Spanish.

It may be surprising, but moving to the U.S. with your foreign-citizen spouse is not as simple as you might imagine.  If you are a U.S. citizen working abroad and considering moving back to the U.S. with your foreign-citizen spouse and/or children, it is never too early to begin planning for return to the U.S.

If you are living outside the U.S. and have a foreign-born spouse and/or children, it may have been quick and easy for them to travel to the U.S. on holiday.  But moving back to the U.S. is an entirely different story, requiring government filings and significant lead time of as much as a year or even more.

This article was first published on GSB’s Cannabis Business Blog.

Seattle, Washington, where I practice, is one of the most popular tourist destinations in the U.S.  Its natural beauty and cosmopolitan vibe are two of its biggest attractions.  But increasingly, Cannabis Tourism has been a draw.  That’s because Washington State, like Colorado, Oregon and Alaska, has legalized cannabis – also known as marijuana, for sale and personal use in the state.

But people who are not U.S. citizens[1] need to understand that these state laws do not protect them from extreme danger.  The federal government still considers cannabis to be a “controlled substance,” and the purchase, possession and/or use of cannabis is still a federal crime that could result in denied admission, deportation, and/or being barred from return – even if state law says it is perfectly legal.

AirplacePeople immigrate to the United States for many different reasons. Many come here for work reasons and, somewhere along the way, obtain permanent resident status, otherwise known as holding a “green card.” They may work in the U.S. for most of their careers, raising children and becoming integrated into the social fabric of their community. But for various reasons, some will wish to “go home” when they retire. Maybe the home country offers better healthcare. Maybe even after many years in the U.S., they feel more comfortable speaking their native language. Maybe their closest relatives are in their home country, and they feel that they need a support network as they age. Maybe the food is better.

Whatever the reason, those who have been green card holders for a long time (specifically, 8 out of the previous 15 tax years) need to be mindful of the so-called “expatriation tax.” The Heroes Earnings Assistance and Relief Tax Act of 2008 (the “HEART Act”) imposes a tax at the time of departure on U.S. citizens who have renounced their citizenship and on those who renounce their long-term permanent resident status after June 17, 2008. The HEART Act expatriation rules apply to those who, at the time of expatriation:

iStock U.S. Flags and Wall Street SignYou have a plan for doing business in the U.S.  Now who is going to help make that happen? As companies get ready to do business in the U.S. they often delay in thinking about one key matter: making sure the people needed to implement their strategy can obtain the visas or other permission required to work in the U.S. Some U.S. hiring is possible, of course, but often key personnel are needed from abroad. If you’re going to be sending someone like Oscar winning Penélope Cruz, it may be easy to verify that a visa is available. Sometimes even experienced business personnel or their contemplated jobs, however, do not match what the U.S. immigration authorities require. Even a visa for a superstar can take a significant amount of time to arrange. It’s terrible when a project gets delayed or cannot take off because the right person isn’t ready with the right work authorization.

The next installment in GSB’s Resource for Doing Business in the U.S. sets out the basic visa options for working in the U.S. It outlines the types of visas and the associated process and requirements, which should help in timely and efficient planning.

Your comments are welcome!

USflag_visaIn a blog that we posted just a few weeks ago, I wrote “Beginning in late 2015, individuals who have been present in Iraq, Syria, Iran, or Sudan (or other countries designated by the Department of Homeland Security (“DHS”) as supporting terrorism or “of concern”) at any time on or after March 1, 2011, are not eligible to participate in the Visa Waiver Program.” Well, “other countries” were designated on February 18.

The Visa Waiver Program has allowed citizens of more than 35 countries to travel and be admitted to the U.S. for business or pleasure for 90 days without the need for a visa. Recent events in other parts of the world have resulted in the restrictions on the availability of this program based on country-specific travel or nationality.

On February 18, the restrictions were expanded from Iraq, Syria, Iran, and Sudan to include Libya, Somalia, and Yemen as three countries “of concern”. This limits Visa Waiver Program travel for certain individuals who have traveled to those countries since March 1, 2011. The restriction does not apply to individuals with dual nationality (nationals of the U.S. and any of those three countries).

As with the previous restrictions, the Secretary of Homeland Security, Jeh Johnson may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. As a general matter, categories of travelers who may be eligible for a waiver include individuals who traveled to these countries on behalf of international organizations, regional organizations, and sub-national governments on official duty; on behalf of a humanitarian NGO on official duty; or as a journalist for reporting purposes.

USflag_visaAlmost everyone[i] who enters the U.S. for business visits must either (a) have a B-1 visa (which may include a B1/B2 visa) or (b) be eligible to enter without a visa under the Visa Waiver Program.  If you have a machine-readable passport and are from one of the countries in the Visa Waiver Program, you may be able to seek admission to the U.S. for a business visit without the need to obtain a visa.

More than 19 million travelers visit the U.S. each year using the Visa Waiver Program.  But don’t purchase your round-trip ticket until (1) you know that your trip fits the B1/B2 standards, (2) you know that you can accomplish your tasks within 90 days, (3) you have registered for ESTA, and (4) you have confirmed that you or your travel history do not eliminate your eligibility.

B-1 or B1/B2 Standards

Business trips to the U.S. on behalf of a foreign employer are classified as “B-1” entries.  Pleasure trips are given the “B-2” classification.  B1/B2 allows for both activities.

Your activities must be considered “doing business” on behalf of your foreign employer, and not “working” in the U.S., providing a benefit to a U.S. entity, to fit within the acceptable standards for a B-1 admission.  “Doing business” may include negotiating contracts, meeting with business associates, attending conferences and trade shows, etc.  “Work,” which is not allowed under the B?1 standard, includes providing labor and/or performing services in the U.S. for compensation, with the benefit of those services accruing in the U.S.

Visa Waiver Program Admission

Visa Waiver Program admission is for ninety (90) days, no more, no less.  If your business cannot be concluded within that timeframe, you may want to consider applying for a visa at a U.S. consulate instead of using the Visa Waiver Program.  Admission with a visa can be for a period of up to six (6) months or even more, and extensions of stay can be applied for.  Extensions are not available to those admitted under the Visa Waiver Program.

There is no specific limitation established regarding the number of times a person can use the Visa Waiver Program to seek admission to the U.S. during any particular period of time.  This is different than in some countries, which may limit the time you are actually allowed to be in the country over a specific period of time, such as those that allow no more than ninety days of being present in the area within a 180 day period.

Electronic System for Travel Authorization (“ESTA”)

Registration for ESTA is quick, inexpensive, and easy to update.  ESTA requires the electronic submission of biographic, travel and credit card information.  An application may be submitted at any time prior to travel, though it is recommended that travelers apply when they begin making travel plans.  It is at the airport, before boarding, that the carrier verifies that the traveler has an approved ESTA on file with the U.S. government.

Recent Changes that may Restrict Participation in the Visa Waiver Program

New standards have been imposed on the Visa Waiver Program that warrant your attention.  The enforcement of these may result in delays in admission and/or the need to apply for an actual visa so as to be authorized to travel to the U.S.

Beginning in late 2015, individuals who have been present in Iraq, Syria, Iran, or Sudan (or other countries designated by the Department of Homeland Security (“DHS”) as supporting terrorism or “of concern”) at any time on or after March 1, 2011, are not eligible to participate in the Visa Waiver Program.  Those individuals may still be eligible to travel to the U.S., but they must apply for an actual visa and submit to an interview at a U.S. consulate.

ESTA-registered travelers who have traveled to or been present in the countries at issue are likely to be notified of revocation of their ESTA by the email address provided as a part of the ESTA application.  Those who receive the revocation email shortly before an urgent business, medical or humanitarian trip to the U.S. can have their visa application interview expedited at the appropriate U.S. consulate or embassy.  Nobody with a revoked ESTA will be authorized to board a conveyance to the U.S., whether the individual has received the email notice or not.  So everyone is advised to check for continued ESTA approval before making travel reservations.

The new law exempts those performing military service in the armed forces of a country that participates in the Visa Waiver Program, or those carrying out official duties in a full-time capacity in the employment of the government of a Visa Waiver Program country.  These exclusion may be waived by DHS if it would be in the interest of law enforcement or national security of the United States.

The law also excludes from the Visa Waiver Program individuals who are “nationals” of Iraq, Syria, Iran, or Sudan.  Nationality is not the same as citizenship.  It typically depends on the laws of the designated country.  A person can be a national of a particular country, even if he or she has never resided in that country and/or does not have a passport issued by that country.  Customs and Border Protection (“CBP”) has advised that ESTA-registered travelers who fall into the dual national category will receive notice via email on or about January 21, 2016 that their current ESTA is no longer valid.

Conclusion

The Visa Waiver Program is an excellent and efficient means of obtaining travel authorization, but every traveler should take the time to be sure they qualify for it before attempting to use it to travel to the U.S.

[i] Canadian citizens do not need a B-1, B-2 or B1/B2 visa, and are not part of the Visa Waiver Program.  Canadian citizens may seek admission for business or pleasure simply by presenting themselves with appropriate documentation other than a visa at the port of entry.

Flags_gearsA good business plan involves consideration of both short-term and long-term goals. Your plans should do the same for your management and business employees; getting them into the U.S. as you start or grow your business, and keeping the organization properly staffed as it succeeds. This occasional blog provides guidance regarding some of the most common and important employment-based U.S. immigration options.

In my previous blogs, I have written about transferred employees under the L status for up to seven years, and employment of Japanese citizens under the E status without the need to prove previous employment, and with the ability to maintain that status forever. Today’s blog is about options in which the government is more heavily involved, such as the wages paid and the decision-making process.

“Specialty Occupations” present a great option for U.S. employment of transferred employees or new hires. The general rule for these jobs is that the job requires a specific type of college degree or the education and/or experience equivalent of that degree, and the person has that degree or equivalent. Classically, this applies to jobs such as accountants, engineers, and computer professionals, among others. It can be difficult to obtain approval for jobs that some people (and the government) don’t normally associate with a particular degree, such as Sales Managers, Market Research Analysts, or Public Relations Specialists. But it can be worth exploring.

H-1B: Available to Citizens of All Countries

The current challenge with the H-1B classification is that only people who already have that classification can be hired; a person who has not already been approved for employment with that classification can’t get it until October 2016 unless the employer or employee has exemption from the numerical limitation. Anyone hoping to be considered for one of the H?1B’s to be allocated at that time should plan to submit the filing on April 1, 2016, the first day on which filings will be accepted. Only 78,200 new H-1B’s are available for each fiscal year, and they can all be allocated within as little as a few days or weeks.

H-1B1: Available to Citizens of Chile and Singapore

The H-1B1 status, almost identical to the H-1B referenced above, is available to citizens of Chile, who have 1,400 available each year, and Singapore, who have 5,400 available each year. To date, the government has never allocated the maximum available each year, so they are available throughout the year.

E-3: Available to Citizens of Australia

Australian citizens have a virtual equivalent to the H-1B in the form of the E-3 status, which is open for applications year-round because the 10,500 limit has never been fully approved.

Procedures

All three of these classifications require multiple government filings and approvals, starting in the U.S. with the Department of Labor certifying labor conditions and wages. After that, the processes diverge. H?1B status must be approved in the U.S. by U.S. Citizenship and Immigration Services (USCIS). The H-1B1 and the E-3 statuses can be approved at U.S. consulates as a part of the visa application or, for a person already in the U.S. in some other status, by USCIS. Government-charged filing fees in the U.S. start as low as $825 for an H-1B1 or an E-3, and $1,575 for an H-1B. Visa fees are in addition to those charges. There can be a difference between the time period approved for the “status,” and the time period for the visa, which is the travel document associated with the status. Status approval of an H-1B1 is for up to one year at a time and, for an E-3, it is for up to two years at a time. Both are renewable indefinitely. An H-1B status can only be approved for as many as six years, in three year increments.

For more information, see:

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=71256811264a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=71256811264a3210VgnVCM100000b92ca60aRCRD

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=73566811264a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD

The Immigration Group is available to work with you as you consider employment-based immigration options for you or your employees.

HiResA good business plan involves consideration of both short-term and long-term goals. Your plans should do the same for your management and business employees; getting them into the U.S. as you start or grow your business, and keeping the organization properly staffed as it succeeds. This occasional blog provides guidance regarding some of the most common and important employment-based U.S. immigration options.  

Today’s blog focuses on an employment-based immigration option available to citizens of particular countries; in this case, Japan. I will follow up with additional information about these options for other countries in the future.

In my last blog, I wrote about one of the fastest and easiest ways to transfer a valued employee to the U.S. to work for a related business entity: the L transfer option. But what options do you have if the person you have identified for a U.S. position has never worked for you, or has worked for you, but not for the one year required for the L transfer option? Or what if the person qualifies for the L transfer option, but U.S. employment is sought for more than the up to seven years authorized for L status, and the person does not want to become a U.S. permanent resident?

An additional employment-based immigration option is available if the business operating in the U.S. happens to have significant (50% or more) Japanese ownership or investment. The U.S. and Japan have a “Treaty of Commerce and Navigation” that makes it possible to hire Japanese citizens, whether they are still in Japan or already in the U.S., to provide executive, managerial, or “essential” services. No previous employment with any of your companies is required.

The E process may involve a filing at a U.S. consulate overseas and/or a mail-in petition in the U.S. Government-charged filing fees at U.S. consulates in Japan start at $270. Mail-in filings in the U.S. have a $325 filing fee. Mail-in filings can take one month or more for review, and visa issuance in Japan can take just as long or longer, depending on the availability of appointments.

One particular advantage of this option is that the status has the potential of being renewed indefinitely, which is the reason why many Japanese businesses choose the E process for many employees, even if other employment based immigration options are available.

Two versions of E status are available.

The E-1 (“Treaty Trader”) is available based on the U.S. business having “substantial trade” with Japan. Items of trade include but are not limited to:

  • Goods
  • Services
  • International banking
  • Insurance
  • Transportation
  • Tourism
  • Technology and its transfer
  • Some news-gathering activities.

To qualify for E-1 classification, the Japanese employee of a treaty trader must be an employee engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.

The other version of E status is the E-2 (“Treaty Investor”), which is available based on a “substantial investment” by Japanese in a U.S. business, such that the U.S. business is at least 50% owned or controlled by Japanese.

The treaty investor must be Japanese and must have invested, or be actively in the process of investing, a substantial amount of capital in a bona fide enterprise in the United States. The government does not define how much the investment must be. It can vary from a relatively low percentage compared to the total cost of purchasing or establishing a large U.S. business, up to 100% for a relatively small U.S. business. And the investment must generate more than enough income to provide a minimal living for the treaty investor and his or her family. Treaty Investor E-2 status is available for the qualified investor who seeks admission to develop and direct the enterprise, as well as for non-investing executives, supervisory and essential workers.

The Immigration Group is available to work with you as you consider employment-based immigration options for you or your employees.

 

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About Us
The International Practice Group of Garvey Schubert Barer is a cross-disciplinary group of attorneys practicing in areas ranging from business transactions, immigration, maritime, government regulatory work, transportation and logistics, and estate planning. The group members include bilingual and multicultural attorneys who are well-versed in handling these subject matters in a cross-border context. The firm’s attorneys have been actively practicing in the international arena since the early 1970s. 
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