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Immigration Newsletter Template gtlaw.com GREENBERG ATTORNEYS AT LAW immigration.gtlaw.com TRAURIGLLP August/September 2003 OBSERVER GT Business Immigration Newsletter AMSTERDAM In this issue: Page: ATLANTA CAN YOUR COMPANY REALLY BE SUBJECT TO BACK WAGES? 2 BOCA RATON BOSTON WARNING TO LAWFUL PERMANENT RESIDENTS BEING 2 TRANSFERRED OVERSEAS CHICAGO DENVER PLAY BALL! BUT NOT WITHOUT THE PROPER VISA: THE O AND P VISA 3 FORT LAUDERDALE CATEGORIES LOS ANGELES 65,000 H-1B VISAS—WILL OUR ECONOMY BENEFIT OR HURT WHEN 4 MIAMI THE CAP GOES BACK DOWN? NEW JERSEY WHAT HAPPENS IF YOU DON’T REGISTER YOUR DEPARTURE FROM 6 NEW YORK THE U.S. BUT ARE REQUIRED TO? ORLANDO CERTIFICATES FOR CERTAIN FOREIGN HEALTH WORKERS NOW PHILADELPHIA 7 REQUIRED PHOENIX TALLAHASSEE GLOBAL VISA SERVICES SEMINARS 8 TYSONS CORNER ESSENTIAL WORKER INFORMATION 8 WASHINGTON, D.C. WEST PALM BEACH WILMINGTON This newsletter is sent only to subscribers or to friends of Greenberg Traurig. If you no longer wish to ZURICH receive The GT Immigration Observer follow the unsubscribe instructions at the bottom of this newsletter. If you are having problems, contact [email protected]. Can Your Company Really be Subject to Back Wages? For those who are skeptical of the power and by all federal agencies regulating H-1B employees and enforcement capabilities of the Department of Labor the economic slump we continue to experience, many (DOL) in relation to H-1B regulations, the recent case of companies are now subjected to a higher level of In the Matter of HNC Solutions, Inc. should be a warning. scrutiny. Often this scrutiny leads to audits which On Jun. 30, 2003, the Office of Administrative Law reveal H-1B practices that leave the company Judges approved the terms and conditions of a vulnerable and subject to payment of back wages, settlement agreement between HNC Solutions, Inc. and penalties and possible disbarment from using the DOL. While specifics of the violations and the DOL’s immigration programs in the future. In light of the investigation of the company were not disclosed in the current environment it is advisable to conduct regular order, it is safe to assume that the DOL fully audited the in-house audits of not only Public Access Files for H- company’s public access files following the submission 1B employees, but also of I-9 records, in an effort to of a complaint. The settlement included payment of minimize the company’s liabilities. GT can assist you August/September 2003 $739,385 in back wages and $79,500 in civil money with implementing an affordable and efficient program penalties. for such in-house reviews. For information on in-house With the continuing changes in immigration audits and training sessions please contact the GT processing, the emphasis being placed on enforcement Business Immigration group at [email protected]. ○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○○ Warning to Lawful Permanent Residents Transferred Overseas Does your company have a large population of Maintaining Residence for Purposes of Applying International Assignees (“IAs”)? Many U.S. companies for U.S. Citizenship are unaware of the need for IAs, who are also U.S. lawful permanent residents (green card holders), to In order for an LPR to become a U.S. citizen, the LPR maintain their permanent resident status and/or to will eventually need to file a naturalization application preserve their ability to file an application for U.S. but must first satisfy the requirement of maintaining citizenship. These are issues that are often overlooked continuous residence in the U.S. prior to filing the when transferring employees and their families application. This means maintaining permanent overseas. residence status in the U.S. for at least 5 years piror to filing the application and being physically present in Maintaining Lawful Permanent Resident Status teh U.S. for at least half of that period. It is also important to maintain LPR status as discussed above, Lawful permanent resident (“LPR”) status can be lost in however, it is possible for the LPR to maintain LPR several ways, both intentionally and by accident. For status but fail to maintain a “continuous residence in those IAs who spend significant time out of the U.S., the United States”. This can cause a severe delay in the most pressing concern is that they do not lose their the LPR’s ability to file for citizenship. Continuous lawful permanent resident status through what is called presence issues pop up in the case of IAs or frequent “abandonment.” travelers that spend a good portion of their time abroad on business trips. For these types of employees we Defining a “temporary visit abroad” is very difficult. Many suggest that the company encourage the maintenance people erroneously believe that if a person comes back of impeccable travel records including saving airline to the United States at least once a year or even within tickets, boarding passes, frequent flyer statements, six months, lawful permanent resident status can be restaurant/hotel receipts, etc. maintained. This is an incorrect assumption. In fact, an alien who lives and works in a foreign country, but There are many possible strategies that can be merely returns to the U.S. for brief visits periodically, implemented prior to transferring employees on will most likely be found to have abandoned lawful international assignments to preserve residence for permanent resident status. Any time a LPR is outside naturalization purposes or to avoid abadoning one’s the U.S. for a period of six months or more, It is the status. individual’s responsibility to prove ties to the U.S. These types of issues need to be considered prior to If any of your LPR international assignees or experts the LPRs transfer overseas. Many employees may not plan on or are required to spend a significant amount of even realize that they have “relinquished” their lawful time outside the United States, it is imperative that you permanent resident status unknowingly by working consult with an immigration attorney. abroad without taking the necessary steps to preserve residence, if in fact this option is available. Page 2 Play Ball! But not Without the Proper Visa: The O and P Visa Categories Although sometimes not considered until the last unless a musician, artist or performer can establish minute, foreign athletes and entertainers are required that they are prominent in their field of endeavor or that to obtain a visa in order to perform in the United States. they have in essence “made it,” then they probably do April 2003 As representatives of players throughout major U.S. not qualify for the O-1 visa. If they have reached a high Sports Leagues including the National Football level of achievement in their field and they can prove it League, the National Hockey League and Major by demonstrating, among other things, that they have League Baseball, GT can vouch for the importance of been nominated to receive a significant international or proper and timely visa planning. Actors, musicians, national award (i.e., Emmy, Grammy, Academy Award music groups and entertainment companies are also or foreign equivalent), or that they have performed in a bound to the U.S. Department of Homeland Security’s leading role in distinguished productions or Bureau of Citizenship and Immigration Services organizations and/or they have a record of major August/September 2003 (“BCIS”) regulations. commercial or critically acclaimed success, then the O-1 visa is probably within their reach. The visas of choice are the O and P nonimmigrant visa categories: If a musician, artist, entertainer, athlete or entertainment group appears to qualify for the O or P The P Visa visa, a petition is prepared and filed with the BCIS. The team or U.S. agent serves as the petitioning sponsor The P-1 visa is available to athletes who perform at an and provides qualifying evidence listed as well as internationally-recognized level and group entertainers additional information and/or materials including a who have been recognized internationally as being letter in support of the petition, a schedule of events, outstanding in their discipline. For an applicant to concert dates or team schedule and information qualify, their skill and recognition must be substantially regarding the organization of the petitioning entity. above that ordinarily encountered. P-3 visas can be These visas also require a written advisory opinion from utilized for groups coming to participate in a cultural an appropriate union regarding the nature of the work to exhange program. be performed and the person’s qualifications. To qualify for the P visa as a professional athlete, the Visa Highlights athlete will need to demonstrate that they have a tendered contract with a major U.S. sports league or • O and P visa petitions qualify for the BCIS team and that they have, among other things, Premium Processing Program under which the participated to a significant extent in a prior season visa petition will be adjudicated within 15 days of with a major U.S. sports league or for a U.S. college in receipt by the BCIS for an additional filing fee. intercollegiate competition. They may also provide a statement from an official of the governing body of the • The length of stay in the United States petitioned sport which details how they are internationally for on behalf of the beneficiary can be as short as recognized or demonstrate their receipt of a significant for performance in one competition, event or show award or honor in the sport. or can be as long as an entire season or the length of an entire contract, up to three years for an O To qualify for the P visa as an entertainment group, the petition and up to five years for a P petition.
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