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SPECIAL ALERT
IRS to fine business for social security number 'mismatches'
On
March 1, 2002, the Social Security Administration (SSA) stopped issuing
social security numbers to foreign nationals who requested them in order
to obtain a driver’s license. This policy change has hindered immigrants
without work authorization from getting driver’s licenses, opening bank
accounts and using other services for which a social security number is
required. SSA was forced by a federal district judge in Washington,
D.C., to abandon this policy, but problems remain. To read an article
on how this change in policy affected immigrants and visaholders in Alabama,
CLICK HERE.
The
SSA has expanded the scope of its annual “no match” letter program. The
program, which used to send a letter to employers who either had 11 or
more employees whose social security numbers did not match SSA’s records
(“no match”) or had a no match problem with at least 10 percent of the
employees listed on the W–2 form, was revised so that any employer who
had at least one no match employee received a letter. The new policy has
resulted in employers receiving 750,000 no match letters, confusion about
the actions employers should take to resolve the discrepancy in the records,
and the termination of roughly 39 percent of all employees listed on those
letters. The chilling effect on the hiring of foreign nationals produced
by the no- match letters may continue since the IRS has notified the business
community that it will begin issuing fines to employers if they have employees
whose social security numbers do not match the SSA’s records.
The IRS is expected to begin documenting infractions in 2002, but will
not start issuing fines until 2004, at the earliest.
SSA's proposed rules on Social Security Number Verification System
The Social Security Number Verification System (SSNVS), which has been implemented as a pilot program for a small group of employers, would allow employers to verify the accuracy of an employee’s social security number via the Internet. Concerns have been raised as to how the system would comply with IRCA and safeguard employee’s information from unauthorized verifications. -- Washington Update, American Immigration Lawyers Association, July 26, 2002.
Employment visas for U.S. businesses
By BOYD F. CAMPBELL
Attorney at Law and Civil Law Notary
U.S. companies can
stay competitive, despite the current tight U.S. labor market, by identifying
skilled foreign nationals and using U.S. visas to bring them into the United
States on a temporary basis. Temporary skilled labor may enter the
U.S. in different kinds of immigration status. Each nonimmigrant
visa category has its own set of statutory and regulatory requirements
and limitations. Today, violations of immigration laws can result
in serious consequences. Yet, U.S. employers need the skilled labor
that many foreigners can provide. This article describes the nonimmigrant
U.S. visas available to U.S. employers, and discusses compliance with the
Immigration and Nationality Act (INA), the Immigration Reform and Control
Act of 1986 (IRCA), and the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRAIRA) and other federal immigration regulations.
Because of greater
restrictions imposed by Congress on the hiring of foreign skilled labor,
U.S. employers should work with U.S. immigration lawyers, who must be flexible
in their approaches to specific cases and often must carefully plan the
entry of foreign workers, in close cooperation with their clients, and
advise their clients on applicable federal income tax laws, treaties, both
foreign and domestic and, at times, U.S. foreign policy.
The nonimmigrant U.S.
visas that U.S. businesses may use are identified by a letters and numbers,
which refer to the applicable subsection in the Immigration and Nationality
Act. They are as follows: B-1 (business visitor); H-1B (temporary
specialty workers); H-2A (temporary or seasonal agricultural workers);
H-2B (temporary nonagricultural workers); L-1 (intracompany transferees);
O-1 (aliens of extraordinary ability); P-1 (internationally known athletes,
individually or as part of a group, and entertainment groups); P-2 (performing
artists under a reciprocal exchange program); P-3 (culturally unique entertainers);
and TN (Canadian or Mexican professionals entering under the North American
Free Trade Agreement). The regulations that govern the visas described
below are contained in Title 8, Code of Federal Regulations. Remember
that all of the following visas are for temporary visits and employment,
anywhere from 90 days to seven years, depending upon the visa category.
NOTE: E-1 (treaty trader) and E-2 (treaty investor) visas are addressed
in a separate article: CLICK HERE.
Business visitors (B-1)
The B-1 visa is for
“business visitors” who seek to enter the United States for the purpose
of engaging in business, not to be employed. Still, your small-business
clients may wish to encourage foreign professionals to use this visa in
circumstances where a foreign entity has a contract with the the U.S. business,
and the business visitor is coming to the United States to work on a contract
held by his overseas employer.
The business visitor
must be able to show that he has adequate funds available to support him
while he is in the United States, and must show substantial ties to his
country of residence. Immigration lawyers should advise their clients
about the use of B-1 visas and assist them in complying with the law and
regulations. B-1 visaholders should be able to show upon entry to
the United States that no payment (except incidental support, such as housing
allowances or a rental car, as examples) is to be received in the United
States, and that there will be no employment with the U.S. business in
the United States. An appropriate document to show an Immigration
Control officer at a U.S. port of entry, for example, would be an English-language
contract for services between the foreign national's employer overseas
and the U.S. business.
For foreign nationals
from Visa Waiver Program (VWP) countries, it may be advisable for the foreign
national to obtain a B-1 visa stamp in his passport and to present a letter
at the port of entry, fully disclosing the nature of the engagement in
the United States. If the situation is one in which a foreign national
wishes to enter the United States in B-1 visa status rather than H-1B (specialty
worker visa, discussed below), an Immigration Control officer may well
find the foreign national excludable under either 212(a)(6)(C) or 212(a)(7)
of the Immigration and Nationality Act. The foreign national will
have no right to a hearing before an Immigration Judge and no consular
officer can overrule such findings made at the U.S. port of entry.
To go to the U.S. Department of State web page on the Visa Waiver Program,
CLICK
HERE. The program expired on April 30, 2000, but Congress made
it pemanent on October, 30, 2000. Effective February
21, 2002, Argentina was de-listed from the VWP.
U.S. employers have
used the B-1 visa in lieu of the H-1B visa because commerce is time sensitive,
and the H-1B visa takes longer to obtain. H-1B visas have also been
in short supply, and the current allocation of 115,000 H-1B visas runs
out faster and faster in response to unprecedented demand. The foreign
national should enter the United States on the correct visa, depending
upon the purpose of the foreign national’s entry. B-1 visaholders
may commonly engage in commercial transactions, negotiate contracts, consult
with business associates, engage in litigation, participate in scientific,
educational, professional, or business conventions, conferences, or seminars,
or undertake independent research. Bear in mind that the B-1 visaholder
may not receive a salary, and only incidental expenses, from a U.S. employer.
Application for the visa is made on a U.S. Department of State form, OF-156,
which may be filed, with the appropriate fee, at any U.S. consulate around
the world that handles such visa applications.
Specialty workers (H-1B)
This category includes
the H-1B visa mentioned above. This visa is for foreign workers in
a “specialty occupation,” defined as “an occupation that requires (a) theoretical
and practical application of a body of highly specialized knowledge, and
(b) attainment of a bachelor’s or higher degree in the specific specialty
(or its equivalent) as a minimum for entry into the occupation in the
United States.”
The bachelor’s degree
must be common in the industry in which the alien will be employed, or
the U.S. employer must normally require such a degree or its equivalent
for the position offered, or the nature of the specific duties of the position
are so specialized and complex that knowledge required to perform the duties
is usually associated with a bachelor’s or higher degree. Such degrees
are normally evaluated by a U.S. credentials evaluator in order to show
that the foreign degree is equivalent to a U.S. degree. Immigration
lawyers use credentials evaluation services to evaluate foreign nationals’
academic and work experience credentials in order to meet these requirements.
If licensure of certification
for the position is required by the state in which the foreign worker will
be employed, he must obtain such licensure or certification. If he
has not completed a bachelor’s degree for the position, he may show three
years of experience for each year of college-level training, through
progressively responsible positions directly related to the specialty.
Where a specialized
training and substantial work experience may be a substitute for a bachelor’s
degree requirement, it is not for a position requiring a master’s degree.
Equivalency to a master’s degree may only be shown by possession of a bachelor’s
degree, followed by at least five years of experience in the specialty
occupation. In addition, the specialty worker’s wage must meet the
“prevailing wage” test, which is done by submitting a request for a prevailing-wage
determination to the state employment service, or by using a recognized
wage survey for the area in which the employer does business and in which
the alien will work. Following a prevailing wage determination, the
employer must complete the labor condition attestation. It must be
posted in two or more conspicuous places in the place of employment for
a total of at least 10 days, and be furnished to the labor bargaining representative.
The number of H-1B
visas is capped in any given fiscal year. The employer mails its
petition on behalf of the alien to an INS service center by completing
INS Form I-129, with H supplement, and submitting an INS filing fee of
$130.00 (as of February 19, 2002), plus $1,000 in compliance with the American
Competitiveness and Workforce Improvement Act of 1998, if required.
Premium (15-day) processing is now available for H-1B visas in exchange
for payment to INS of an additional $1,000.00 fee. For a link on
this web site to more information about H-1B visas, CLICK
HERE.
Intracompany transferees (L-1)
Another category of
visas is the “L” visa for “intracompany transferees. These visas
are available to foreign nationals who have worked abroad for at least
one continuous year within the preceding three years for a related business
entity to the U.S. business. The visa petitioner (the U.S. parent
or subsidiary) must be doing business in the United States and at least
one other country for the duration of the “L” visaholder’s stay in the
United States.
Foreign nationals
qualify for this visa by showing “executive capacity,” “managerial capacity”
(L-1A), or “specialized knowledge” (L-1B). The visa is valid for
seven years for those in the “executive” and “managerial” categories, and
for five years for those with “specialized knowledge.” Individual
petitions are submitted to INS service centers with the required $110 fee.
Nonprofit charitable,
religious, educational, and arts organizations that have affiliate organizations
in other countries may also use "L" visas.
Blanket petitions,
wherein the petitioner must show that it has obtained approval for at least
10 “L” visa executives, managers, or aliens with “specialized knowledge”
during the past 12 months, may be filed with the U.S. consulate where the
overseas qualifying entity does business. To qualify for blanket
treatment, the petitioning business may also show that it has U.S. subsidiaries
or affiliates with combined annual sales of at least $25 million, or has
a U.S. workforce of at least 1,000 employees. This approach often
simplifies things for my clients and substantially reduces the time necessary
to obtain the visa.
The INS filing
fee is $130.00 (as of February 19, 2002). Premium processing ($1,000.00)
is available. For a link on this web site to more information about
"L" visas, CLICK HERE. Premium processing
(15 days) is now available from the INS.
Individuals of extraordinary ability or achievement (O)
"O"
visas are issued to highly talented, professionals of high acclaim.
They are issued most often to artists, athletes, entertainers, and business
professionals who do not have professional degrees. The visas are
sometimes issued to scientists and educators. The visas are sometimes
used in lieu of the H-1B visas, which are subject to wage restraints and
a restrictive visa cap (discussed above).
The
O-1 category is for aliens of extraordinary ability; O-2 is for certain
aliens accompanying O-1 aliens in the arts or athletics; O-3 is for dependents
of aliens in the O-1 and O-2 categories. O-1 visa applicants must
demonstrate sustained national or international acclaim, and be recognized
in the field through extensive documentation. O-1 aliens need not
have a foreign residence they do not intend to abandon to qualify for this
nonimmigrant visa. O-2 (accompanying) aliens, however, must maintain
a foreign residence they do not intend to abandon.
O-2
aliens must have skills and experience with the O-1 alien not of a general
nature, which are critical either based upon a pre-existing, long-standing
working relationship, or with respect to specific production. The
continuing participation of the O-2 alien must be shown to be essential
for successful completion of the production. The INS filing fee of
$130.00 (as of February 19, 2002) must accompany the visa petition.
Athletes and entertainment groups (P)
"P"
visas are appropriate for athletes and entertainment groups (but not individuals).
P-1 visa status is generally accorded internationally known athletes, individually
or as part of a group or team, and to entertainment groups. P-2 visa
status is accorded to performing artists under the auspices of a reciprocal
exchange program. P-3 visa status is accorded to culturally unique
entertainers. These visa classifications include accompanying personnel.
The
P-4 visa category is for dependents of aliens in P-1, P-2, and P-3 visa
status. For members of entertainment groups, the P-1 classification
is generally accorded to a group that has been recognized internationally
as outstanding in the discipline for a sustained and substantial period
of time. Each alien seeking to enter the United States on the P-1
visa must show that he or she had a sustained and substantial relationship
with the group of at least a year, and must be entering the United States
solely to perform or entertain with the group. (Only 75 percent of
group members must show that they had a sustained and substantial relationship
with the group for at least a year.)
P-2
and P-3 visas are issued to artists and entertainers who perform individually
or as part of a group in a reciprocal exchange program between one or more
U.S. organizations and one or more organizations in other countries.
Labor unions are usually involved in establishing the exchange program.
The exchange must be similar in caliber of artists and entertainers, in
terms and conditions of employment, and in numbers of aliens involved in
the exchange. P-3 visas are issued to culturally unique artists or
entertainers -- individually, or as a group -- who are coming to the United
States to develop, interpret, represent, coach, or teach their particular
art or discipline. This visa can fit many types of artists and entertainers.
All
"P" visa categories allow for the accompaniment of "essential support"
personnel. The INS filing fee of $130.00 (as of February 19, 2002)
must accompany the visa petition.
Trade NAFTA visas (TN)
U.S. employers hiring
Canadians and Mexicans can benefit from this visa, which is governed by
the North American Free Trade Agreement (NAFTA), which went into effect
on January 1, 1994. This visa category has become more important
to U.S. business as the visa cap for H-1B visas has been reached prior
to the end of the last four fiscal years.
TN visa status is
available for only 63 professions listed in NAFTA Annex 1603. A licentiatura
degree (normally five years) is an alternative to the bachelor’s degree,
which need not be obtained in a four-year program. Canadians and
Mexicans in “TN” visa status are expressly prohibited from engaging in
self-employment. For a link on this web site to more information
about TN visas, CLICK HERE.
While U.S. businesses
may file petitions for Canadians a class “A” U.S. ports of entry, a U.S.
airport handling international traffic, or a U.S. pre-clearance/pre-flight
inspection station, petitions for Mexicans may only be filed at the INS
Nebraska Service Center. Canadian and Mexican applicants are issued
an INS Form I-94, Arrival-Departure Record, valid for a period not to exceed
one year. Canadians may apply for an extension of stay at the port
of entry or by the petitioner’s filing of INS Form I-129 at the INS service
center. Mexicans must receive extensions through the petitioner’s
filing of the I-129 form with the Nebraska Service Center.
This article is not
meant to be a comprehensive explanation of visa procedures. There
are many issues, including changes in employment, changes in employers,
what to do about dependents, etc., that the article has not addressed.
For example, there are many issues with regard to dealing with the cap
on H-1B visa numbers that must be addressed, and many issues arise with
regard to the relationship between U.S. businesses and foreign parents
or subsidiaries concerning “L” visas and foreign travel.
For more information
about U.S. immigration law and visas, you should consult a qualified U.S.
immigration lawyer to advise you. Web links are provided below to
assist you in acquainting yourself with the Immigration and Naturalization
Service and the U.S. Department of State. If application is made
to the INS, the filing fee of $130.00 (as of February 19, 2002) must accompany
the petition.
Links to other helpful information and web sites
You can obtain information about U.S. immigration and nationality law and U.S. visas by clicking on the following web links:
Alabama
economic development links
Department
of Homeland Security
Bureau
of Citizenship and Immigration Services
BCIS
forms download page
Bureau
of Immigration and Customs Enforcement
Bureau
of Customs and Border Protection
Immigration
and nationality law, general
U.S.
Department of State, Bureau of Consular Affairs
U.S.
consulate web sites around the world
American
Immigration Lawyers Association
Boyd F. Campbell practices immigration and nationality law in Montgomery, Alabama, and is a member of the American Immigration Lawyers Association. He is a past Chair of the Immigration Law Committee of the American Bar Association’s General Practice, Solo and Small Firm Lawyers Section, and serves as Chair of the International Law Section of the Alabama State Bar. From 1994 to 1998, he served on the ABA's Coordinating Committee on Immigration Law. Mr. Campbell is listed by Best Lawyers in America: CLICK HERE. and in The Best Lawyers in America Consumer Guide, published by Woodward/White, Inc. He is a civil law notary, having been appointed by the Alabama Secretary of State to this official position in August, 2001. For more information about civil law notaries, CLICK HERE. For more information about Mr. Campbell, CLICK HERE.
This page is sponsored
by the
Immigration
Law Center, L.L.C.
P.O. Box 11032
Montgomery, Alabama 36111-0032
U.S.A.
Tel + 334-832-9090
E-mail: usvisa@visaus.com
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