Foreign Workers Guide to Avoiding Disaster during a Corporate Merger

United States Immigration Series Post No. 12

 Francisco A. Laguna & Rolanzo White

Picture this: you are a skilled Mexican citizen who is working for a United States company. For the holiday season, you and your family go to Mexico City, to spend time with your parents and upon return to the US, you are denied access because your H-1B visa has been invalidated because the employer that originally sponsored your visa is no longer in existence due to a merger. You work for the new, merged company, but the company that sponsored you is no longer your employer.

By Gulbenk - Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=23445038

By Gulbenk – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=23445038

This denial of entry results from the fact that most work visas are employer-specific.  Therefore, changes in a company’s structure could affect the validity of a foreign national employee’s nonimmigrant visa status or a pending green card application. Determining whether a corporate restructuring affects the employer that filed the visa petition with the U.S. Citizenship and Immigration Services (USCIS) or Department of State (DOS) is essential. The consequences of a merger or acquisition depend upon the type of nonimmigrant visa the company’s employees hold. In this post, we focus on the H-1B visa because it is the most common temporary work visa and the rules applicable to H-1Bs are echoed by many of the other forms of visas. For the sake of comprehensiveness, non-immigrant workers normally fall within the H-1B, L, E and TN visa categories as well as on training tied to J-1 and F-1 visas.

H-1B Visa

The problem arises because an employee must have a valid H-1B visa annotated with the petitioning employer’s name.  In the event a company is absorbed by another entity during a merger, the petitioning employer, essentially, no longer exists.

By United States Department of Labor (DOL) - http://www.loeser.us/flags/, Public Domain

By United States Department of Labor (DOL) – http://www.loeser.us/flags/, Public Domain

H-1B visas are the most common temporary visa for U.S. companies that hire foreign national workers for specialty jobs. Workers are required to have at least a bachelor’s degree, and they must work in a specific geographic location in a specific position for a specific salary. When a company hires an H-1B worker, it is required to make an attestation to the U.S. Department of Labor (DOL) they will comply with the H-1B requirements. This attestation is made as part of a Labor Condition Application (LCA).

The USCIS requires an amended H-1B visa petition to be filed if there are any “material changes” in the terms and conditions of an H-1B worker’s employment or eligibility. However, USCIS does not automatically require the filing of a new LCA and amended H-1B petition where a new corporate entity keeps the employee on in the same position and accepts the LCA and H-1B requirements and obligations, in other words, becomes a “successor-in-interest.” Here, the successor-in-interest, must make available for public inspection a sworn statement that it accepts all the obligations and liabilities of the LCAs filed by the predecessor entity, a list of affected LCAs, their dates of certification by DOL, a description of the new entity’s actual wage system and the federal employer identification number (EIN).

By AgnosticPreachersKid - Own work, CC BY-SA 3.0

By AgnosticPreachersKid – Own work, CC BY-SA 3.0

The filing of the new LCA and must be done before the H-1B workers can work for the new company, or, in our example, return to the country legally. When there is a material change, like location change, then a new LCA or amended H-1B petition must be filed with DOL prior to the relocation of the employee in order to avoid filing an amended H-1B visa petition. Similar rules apply for L-1 (executives, managers and specialized knowledge employees), E-1 (treaty traders) and E-2 (investor) visas.

There are now expensive consequences for non-compliance with the requirement to notify USCIS of material changes, including:

  • At the federal level, the Department of Homeland Security is aggressively targeting employers for I-9 and work visa compliance audits; failed audits can result in significant fines and even jail time.
  • At the state level, new laws in dozens of states allow authorities to fine employers, revoke business licenses and eliminate access to state contracts for immigration law violations.
  • Employees on work visas are suing companies for negligence when employees fall out of legal status, have problems pursuing permanent residency, and face bars on coming back to the United States as a result of the companies’ actions.
  • Major companies now include strong immigration compliance provisions in their vendor contracts, violations of which can result in the termination of the contract in question.
  • Bad press that can impact the company’s economic performance and stock price.

These matters are often complicated, and there are strong laws protecting employees, even foreign workers. Call TransLegal with your questions concerning immigration filing requirements in the event of corporate mergers and acquisitions.

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US Immigrant Relief Measures under Special Situations

United States Immigration Series Post No. 11

Francisco A. Laguna & Annapurna Nandyal

In 1990, the United States Government enacted a procedure called Temporary Protected Status (“TPS”) as part of the Immigration Act of 1990, extending immigration benefits to those immigrants who cannot safely return to their home country either due to war, conflict, environmental disaster or other extraordinary/temporary conditions. Some of the countries that are currently on the list are El Salvador, Haiti, Honduras, Syria, Somalia and Sudan.  Under the TPS procedure, immigrants from beneficiary countries must meet the eligibility requirements to extend their stay. The benefits include:

  • Work authorization and obtaining employment authorization document (EAD)
  • Provisional protection against deportation from United States
  • Possible travel authorization with right to return to the US
"2006-2010 imm rate" by BGManofID - Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons

“2006-2010 imm rate” by BGManofID – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons

As the name suggests, the TPS program is only temporary and does not guarantee lawful permanent status.  Immigrants, however, may file for adjustment of status based on their immigrant petition.

Besides the TPS program, there are other special immigrant programs which the US Citizenship and Immigration Services (USCIS) offers to certain countries. These programs include special benefits for people who lose citizenship by marriage or by serving in foreign armed forces, and certain employees and former employees of the US Government abroad.

"Migrant" by Tomas Castelazo - Own work. Licensed under CC BY 3.0 via Wikimedia Commons

“Migrant” by Tomas Castelazo – Own work. Licensed under CC BY 3.0 via Wikimedia Commons

Recently, as part of its benefits program, the US has granted relief measures under “special situations” whether they occur in US or abroad. USCIS defines a special situation as people who have been affected by natural catastrophes or extreme conditions, and the relief measures provided falls short the relief available to TPS beneficiaries. Yemen and Nepal are the two recent countries which have been granted immigrant relief measures under special situations for its citizens residing in United States.  Yemen has been facing internal war conflict whereas Nepal faced devastating earthquake in June 2015. Some of the benefits afforded the immigrants include:

  • Extension or change of immigration status – If an immigrant has fallen out of status with USCIS because of a disaster, even if the request is filed after his/her authorized period has expired, the applicant can apply for an extension or change in status if s/he can prove direct connection with the disaster.
  • Expedited processing of advance parole requests – USCIS will expedite the processing of advance parole requests if the applicant demonstrates s/he needs to leave the US for a family emergency in wake of a disaster.
  • Fee Waiver – If the immigrant is able to demonstrate his/her inability to pay the relevant application fee, the applicant may request for a fee waiver.
  • Expedited Processing – Adjudication for certain applications such as students with F-1 visas can be processed faster, if an individual needs to work off-campus to support himself/herself in lieu of a disaster. An applicant must demonstrate that s/he is experiencing severe economic hardship as a result of the disaster.
  • "U.S. Citizenship and Immigration Service" by Gulbenk - Own work. Licensed under CC BY-SA 3.0 via Commons

    “U.S. Citizenship and Immigration Service” by Gulbenk – Own work. Licensed under CC BY-SA 3.0 via Commons

    Employment Authorization – Regardless of whether the disaster occurs in the United States or abroad, if the situation has affected the applicant’s ability to be self-supporting, and s/he has a pending employment authorization application, the work permit will be granted.

  • Replacement of Lost or Damaged Travel Documents – If an immigrant has lost or damaged travel documents due to the disaster, such as a Green Card, USCIS will help replace the documents.

As mentioned earlier, a special situation can occur either in the US or abroad.  In the past, special situation measures were implemented in Japan (earthquake and tsunami in 2011), Philippines (flooding in 2013) and Ebola affected countries. Domestically, special situations were implemented during Hurricane Sandy, which turned out be a huge relief for many immigrants who lost their legal documents during the disaster.

Contact TransLegal to learn more about how immigrants affected by unforeseen circumstances can request relief from USCIS.

DACA and DAPA Immigration Programs — Part II

United States Immigration Series

Post No. 10

Francisco A. Laguna & Annapurna Nandyal

Today’s post continues our prior discussion of the Obama Adminstration’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs.

In November 2014, as part of the Immigration Accountability Executive Action, the Obama Administration announced the expansion of the existing 2012 DACA program and introduced the DAPA program.

"Immigration Reform Leaders Arrested 5" by Arasmus Photo - Immigration Reform Leaders Arrested in Washington DCUploaded by Chzz. Licensed under CC BY 2.0 via Wikimedia Commons - https://commons.wikimedia.org/wiki/File:Immigration_Reform_Leaders_Arrested_5.jpg#/media/File:Immigration_Reform_Leaders_Arrested_5.jpg

“Immigration Reform Leaders Arrested 5” by Arasmus Photo – Immigration Reform Leaders Arrested in Washington DCUploaded by Chzz. Licensed under CC BY 2.0 via Wikimedia Commons

DACA was expanded by removing the upper age limit which previsously excluded  persons older than 31 on the date of announcement (i.e., those born before June 15, 1981) from applying for the program.  DACA will now apply to all eligible immigrants who entered the US before the age of 16, regardless of how old they are now.  The second benefit of expanding the DACA program is increasing the term of the employment authorization to three-year increments, rather than two years. Finally, the eligibility cut-off date by which a DACA applicant must be in US was extended from June 15, 2007 to January 1, 2010.

Obama’s executive action has resulted in a multi-state lawsuit filed in a Texas federal court to block the immigration order from taking effect. The case, Texas v. United States, has 26 states challenging Obama’s immigration order by contending that the President overstepped his constitutional authority by acting unilaterally. The plaintiffs argue that the executive actions are in violation of Take Care Clause of the US Constitution and the Administrative Procedure Act (APA) as there was no formal notice-and-comment procedure. In addition, the plaintiffs claim that the stay from deportation of the undocumented immigrants who would benefit under the DACA and DAPA programs would place an undue economic and financial burden on the states. The Texas federal court ruled in favor of plaintiffs and halting implementation of DAPA and the expansion of DACA pending further judicial review.

"Oblique facade 3, US Supreme Court" by Daderot - Own work. Licensed under Public Domain via Wikimedia Commons - https://commons.wikimedia.org/wiki/File:Oblique_facade_3,_US_Supreme_Court.jpg#/media/File:Oblique_facade_3,_US_Supreme_Court.jpg

“Oblique facade 3, US Supreme Court” by Daderot – Own work. Licensed under Public Domain via Wikimedia Commons

However, the court’s preliminary injunction does not prevent USCIS from accepting applications under the original 2012 DACA program. The federal government appealed the Texas court ruling before the Fifth Circuit in New Orleans.  Oral arguments were held July 10th 2015 is set for oral arguments. The case has the potential to land in the Supreme Court by next year.

This landmark case has divided the nation cutting across sections of the society, and the recent anti-Mexican immigrant rants from Donald Trump have deepened that division. Though half of the US states have opposed the reforms, many support the implementation of DAPA and DACA. Proponents of the case include 15 states and District of Columbia, besides many immigration rights groups, businesses and trade associations. They have filed “amicus curie” or “friend of the court” briefs touting the economic, electoral and, most importantly, family benefits these immigration reforms could bring.

Recent studies by independent agencies, like the Council of Economic Advisers, show DAPA and DACA reforms would bring substantial benefits to the states and nation, as a whole. Under these programs, certain immigrants are granted work permits which would lead to higher wages, opportunities to find jobs that match the immigrants’ abilities, greater economic productivity and greater tax revenues.  By implementing DAPA alone, there would be an increase in gross domestic product (GDP) by between $90 and $210 billion in 2024.  There would be also roughly 21,000 jobs per year created over the next 10 years, and payroll taxes would increase by $16.7 billion over next 5 years.

The Obama’s Administration’s main purpose for introducing DAPA and DACA is to provide immediate relief to families who would no longer live in fear that their loved ones could be detained or deported at any time.  It provides much needed family stability to undocumented immigrants in the US and would also allow their children, many US citizens, to grow up in the US.  Studies estimate that approximately 5 million undocumented immigrants would benefit by reuniting with their families.

US Permanent Resident Card by U.S. Citizenship and Immigration Services (USCIS).Ahkitj at en.wikipedia [Public domain], from Wikimedia Commons

US Permanent Resident Card by U.S. Citizenship and Immigration Services (USCIS).Ahkitj at en.wikipedia [Public domain], from Wikimedia Commons

Apart from the economic gains to the nation, DAPA and DACA have key electoral implications. Many who are eligible for the DAPA program are Latino and Asian immigrants who could form a significant voting block during the 2016 presidential elections. These voters could affect election results, especially in swing states.

As the debate over the pros and cons of DAPA and DACA continues, the presidential candidates for 2016 election should clearly articulate their position on these executive reforms in a meaning manner.  The current hate speech is neither helpful nor constructive:  it does nothing to find permanent solution to fix our immigration laws.

TransLegal is available to help corporations and individuals navigate the intricacies of the US immigration system.  Call us with your questions.

 

United States Immigration Series Post No. 7

US Immigration Laws Affecting Same-Sex or Gay Marriage

Francisco A. Laguna & Annapurna Nandyal

Today we continue with our series on US immigration laws by discussing the United States’ immigration policy on same-sex marriage (also known as gay marriage).

Currently, same-sex marriages are being hotly debated in the US, and the discussion is likely to intensify as the 2016 presidential elections draw closer.  Until recently, the US denied recognition to same-sex couples seeking to immigrate to the United States and did not confer the same rights and privileges afforded opposite-sex couples.  This was due to the federal Defense of Marriage Act (DOMA) which defined marriage as the union between one man and one woman, thereby preventing same-sex couples from seeking immigration benefits based on marriage.

Though same-sex marriages are legal or recognized in most developed countries, it was only in 2013 that gay marriage was recognized in the US as a result of the US Supreme Court decision in United States v. Windsor, which ended the differential treatment afforded same-sex spouses in matters of immigration and declared DOMA unconstitutional.

"Campaña Iguales Chile 2" by Iguales Chile - Iguales Chile. Licensed under CC BY-SA 3.0 cl via Wikimedia Commons - http://commons.wikimedia.org/wiki/File:Campa%C3%B1a_Iguales_Chile_2.jpg#/media/File:Campa%C3%B1a_Iguales_Chile_2.jpg

Ad for Marriage Equality in Chile “Campaña Iguales Chile 2” by Iguales Chile – Iguales Chile. Licensed under CC BY-SA 3.0 cl via Wikimedia Commons – http://commons.wikimedia.org/wiki/File:Campa%C3%B1a_Iguales_Chile_2.jpg#/media/File:Campa%C3%B1a_Iguales_Chile_2.jpg

 

Today, same-sex marriage is recognized by the federal government and has been legalized in 36 U.S. States and in the District of Columbia. This new federal recognition of same-sex marriage allows same-sex spouses to apply for immigration benefits based on marriage.  The benefits include:

  • If a US citizen or lawful permanent resident (LPR) has a same-sex marriage with a foreign national, then he/she can sponsor his/her spouse for a family-based immigrant visa; and
  • If a US citizen is engaged to be married to a foreign national of same sex, s/he can file a fiancé/fiancée petition.

Besides spouse and fiancé/fiancée visas, same sex couples can also sponsor immediate relatives and are eligible for family-preference immigrant visas.

The US Citizenship and Immigration Services (USCIS) will recognize same-sex marriages performed abroad provided one spouse is a US citizen or LPR, and the marriage was performed in a jurisdiction where such marriages are permitted.

Same-sex couples are now included USCIS’ broad definition of a spouse, and domestic violence victims in same-sex marriages can claim immigration benefits even after leaving their abusers.

Buddist Same-Sex Marriage in Taiwan "Same-sex-marriage-taiwan" by Guy of taipei - Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons - http://commons.wikimedia.org/wiki/File:Same-sex-marriage-taiwan.jpg#/media/File:Same-sex-marriage-taiwan.jpg

Buddist Same-Sex Marriage in Taiwan
“Same-sex-marriage-taiwan” by Guy of taipei – Own work. Licensed under CC BY-SA 3.0 via Wikimedia Commons – http://commons.wikimedia.org/wiki/File:Same-sex-marriage-taiwan.jpg#/media/File:Same-sex-marriage-taiwan.jpg

For residency requirements, same-sex couples will be treated the same opposite-sex spouses.  The same-sex spouse of a visa applicant coming to US for any purpose – including work, study, international exchange programs or as a legal immigrant – will be granted derivative visas.  Step-children acquired through same-sex marriage can also qualify for immigrant visas.

One important criterion to be met by same-sex couples is that their relationship must be based on marriage: civil union and domestic partnerships do not qualify couples for immigration benefits.

Under federal guidelines, the USCIS will determine the eligibility of same-sex couples for immigration benefits based on whether the place of marriage legally allows gay marriage.  This includes instances where a couple marries in a state within the US that recognizes same-sex marriages but the US citizen or LPR is domiciled in a state that does not.  For example, assume a couple lives in Texas, which does not recognize same-sex marriages.  They get married in New Mexico, which recognizes same-sex marriages and later return to their home state Texas.  USCIS will honor such marriage, and the US spouse is eligible to sponsor his/her spouse for adjustment of status.

US citizens may sponsor their same-sex fiancé/fiancée for a K-1 visa regardless of the state of residence of the petitioning US citizen or the country of residence of the foreign born fiancé. For example, assume a US citizen lives in a state that does not recognize gay marriage.  She is engaged to a foreign citizen who lives in a country that also does not recognize gay marriage.  The US citizen can still apply for a K-1 visa, and the couple must get married within 90 days in a US state where gay marriages are permitted.

Questions may arise when same-sex couples live in a state that does not recognize gay marriage.  The federal government will recognize the marriage, and same-sex couples may apply for federal benefits such as immigration, tax benefits and military spouse benefits.  However, the state will treat the same-sex couple as two single people for tax purposes, and state employment and other benefits for couples may not apply.

TransLegal is available to help corporations and individuals navigate the intricacies of the US immigration system.  Call us with your questions.