ImmiTips

Traditionally the fees involved in the process of obtaining labor certification and employing foreign nationals to work in the United States have been covered by the employer, but in an increasingly rough market, many companies and employers are attempting to defer some of the costs to the employees themselves. For some of the fees, employers are expressly prohibited from passing the burden onto the beneficiary (the employee), but for others the law is not so explicit.

The employer may never make deductions from the beneficiary’s salary in order to recover expenses incurred in conducting regular business such as tools and equipment, and including “attorney fees and other costs connected to the performance of H-1B program functions which are required to be performed by the employer, e.g., preparation and filing of LCA and H-1B petition.” See 20 CFR §655.731(c)(9).  The Code is explicit on this matter; the employer is not to pass on any of the costs associated with the H-1B process, if that fee is attached to a part of the process that is to be carried out by the employer.

There are a few deductions which are permissible, so long as requiring the beneficiary to pay the deductions does not drop his or her salary below the prevailing wage specified by the Department of Labor in the labor certification. If the employer imposes unauthorized fees on the employee that push the employee’s actual wages received below the amount required by the prevailing wage, the employer will be required to pay back wages, and may be subject to civil monetary penalties and/or disqualification from future H-1B programs and immigration benefits. See 20 CFR §655.731(c)(11).

Summary: In general, when an employer employing foreign nationals decides to make deductions from such an employee’s salary, the employer must be sure that doing so would not push the employee’s actual wages below the prevailing wage required by the labor certification. Exceptions are made for “authorized” deductions that are required by law and/or that are also made against the wages of U.S. workers similarly employed.

The United States Citizenship and Immigration Services announced this afternoon that the quota for cap subject H-1B visas has officially been reached for the Fiscal Year 2012. USCIS will reject all cap-subject petitions for new H-1B specialty occupations workers with start dates in Fiscal Year 2012. Read more at: FY 2012 H-1B Cap Reached.

The employment based visa classification EB-5, or “employment creation,” is so labeled because it is reserved for immigrants seeking to enter the U.S. for the purpose of engaging in a new commercial enterprise. Visas of this category are to be issued to immigrants actively investing in an enterprise which will benefit the U.S. economy by creating at least 10 full time jobs for U.S. citizens and/or other workers authorized to be employed in the U.S. (excluding nonimmigrants). See INA §203(b)(5). The investment, in theory, helps to create jobs for United States Citizens, permanent residents, and other immigrant aliens. The amount of money that the immigrant investor must invest is dependent upon the area in which the business is, or will be located.

The type of business in which the petitioner must invest is not restricted beyond the qualification that it must be a “commercial enterprise.” The term commercial enterprise refers to any “for-profit activity,” not including “non-commercial activity such as owning and operating a personal residence.” See Matter of Izummi (interim decision). “The required amount of capital must be placed at risk ‘for the purpose of generating a return on the capital placed at risk.’” In a survey conducted by the Government Accountability Office (GAO), the nature of businesses established span a wide range including hotels, manufacturing companies, restaurants, sales, real estate, farms, technological services groups, and many others.

The term capital refers to any “cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable.” See 8 CFR §204.6(e). Under normal circumstances, the amount of the investment required to qualify as an immigrant investor under this visa classification is $1,000,000. The Code of Federal Regulations, however, distinguishes a set of “target employment areas” in which the required capital is reduced to $500,000. See 8 CFR §204.6(f). A target employment area is defined as “an area, which at the time of investment, is a rural area or an area which has experienced unemployment of at least 150 percent of the national average rate.” See 8 CFR §204.6(e).

Summary: In order to qualify for the EB-5 immigrant visa classification, the petitioner must show that (s)he has the required funds to actively invest in an enterprise that will create no less than 10 full time jobs for U.S. citizens or other qualified workers. Not only must the petitioner provide sufficient funds—acquired lawfully—but the petitioner must also take an active role in the enterprise in which (s)he invests.

The StartUp Visa Act of 2011 is a proposed amendment to the Immigration and Nationality Act (INA) that would create a new employment based visa category. The EB-6, Sponsored Entrepreneur, visa classification is intended to open a path to permanent resident status for immigrants with innovative business plans who do not have sufficient funds to qualify under the EB-5 classification. Much like the EB-5 classification it is modeled after, the EB-6 classification is intended to help spur the economy by increasing job opportunities for United States Citizens and other authorized workers, and increasing revenue in U.S. markets. The StartUp Visa Act of 2011 would not create new visas, but would split the existing number of visas allocated to the EB-5 visa category.

The Act would amend section 203(b) of the Immigration and Nationality Act to add the classification of sponsored entrepreneur to the list of immigrant visas allocated in the section. Immigrants may qualify for the EB-6 visa classification in one of the following three ways: [1] An applicant may prove that his or her business model has received an investment from a qualified venture capitalist, super angel investor, or qualified government entity of no less than $100,000; [2] An applicant may be someone in possession of an H-1B visa; or graduate level degree in science, technology, engineering, math, (STEM), computer science, or other relevant academic concentration, earned from an accredited United States college, university, or other institution of higher learning; or [3] An applicant may be a person who has a controlling interest in a foreign company. For more information on the qualification requirements please see StartUp Visa Act of 2011 §(2)(a)(2)(6)(A).

After meeting the primary qualifications listed above, the applicant is issued a two year conditional resident status. Within this time the applicant must meet the secondary qualifications involving increased capital or revenue, and/or job creation. If the applicant fails to meet such qualifications within his or her two year conditional residence, the Secretary of Homeland Security is to terminate his or her status no later than three years after the date conditional residence was conferred. Id. at §(2)(b)(3).

Summary: If passed, the StartUp Visa Act of 2011 would create an opportunity for immigrant entrepreneurs to bring their innovative business plans to the United States. It would add to the number of immigrant visas issued every year, but would draw from the number of visas already allocated to the EB-5 visa classification. In recent years, only half of the yearly allotment of visas in the EB-5 category has been issued. In theory, the implementation of the Act would help stimulate the U.S. economy by attracting a greater number of talented entrepreneurs who may not have qualified for immigrant visas before due to financial limitations.

PERM, or the Program Electronic Review Management System, is the process through which employers looking to hire foreign nationals to work in the United States on a permanent basis may gain approval. An employer, for the sake of this process is defined as a person, firm, association, or corporation with an opportunity for full-time employment at a location within the United States, and in the possession of a valid Federal Employment Identification Number (FEIN). See 20 CFR §656.3. Before the employer can petition to bring the immigrant worker to the United States, (s)he must apply for labor certification from the Department of Labor (DOL). If approved, the Secretary of Labor then certifies there are not sufficient U.S. workers who are able, willing, qualified, and available at the time of application to fill the position, and that the employment of an immigrant worker would not adversely affect the wages of U.S. workers similarly employed. See 8 U.S.C. 1182(a)(5)(A).

The PERM approval process is slightly different from the approval process for temporary workers. The Application for Permanent Employment, ETA 9089, requires that the employer already have received a prevailing wage determination (PWD) from the DOL for the job opportunity in question. Included on the employer’s ETA 9089 should be information received from the National Prevailing Wage Center (NPWC) when the PWD was made, including: the prevailing wage tracking number; the Standard Occupational Classification (SOC) code for the occupation listed on the PWD request; the occupational title associated with the SOC assigned by the NPWC; the skill level of the job as determined by the NPWC; the prevailing wage rate as determined by the NPWC; the source of the determination (e.g. Collective Bargaining Agreement, survey, etc.); and the dates of the prevailing wage’s issuance and expiration. See www.foreignlaborcert.doleta.gov for more information.

Summary: PERM, or the Program Electronic Review Management System, is the process through which employers looking to hire foreign nationals to work in the United States on a permanent basis may gain approval. PERM applicants must file form ETA 9089 with the Department of Labor.