key concepts for international relocation and...

Key Concepts for International Relocation and Immigration

Matthew T. Phillips, Esq.Cohen & Grigsby, PC

OVERVIEW• Key Terms and Definitions

• U.S. Immigration in Twenty Minutes (or less)

• Global Immigration in Twenty Minutes (or less)

• Hot Topics and Coming Changes

Terms/Definitions• Passport

• Visa

• I‐94 Card

• U.S. Citizen

• Immigrant/Permanent Resident

• Nonimmigrant

Basics: Key Terms and Key Players

Players in the U.S. “Immigration World”

• Citizenship and Immigration Services/Department of Homeland Security

• U.S. Consulates and Embassies/Department of State

• Department of Labor

Basics: Key Terms and Key Players

For U.S and Abroad:

Only BUSINESS is “Business”

(and may require a visa)

Definition reminder: “Visa”

• A Visa allows the holder to legally ENTER a country for a defined duration and purpose.

• Common types of visas include:– Business

– Tourist

– Student

– Transit

Definition: “Business”

• “Business” activities usually include– leading or attending meetings– conducting observations and site visits– collecting information/data– attending a professional conference– scouting opportunities for future development– negotiating contracts– house‐hunting– etc.

Definition: NOT “Business”

• “Business” activities do NOT usually include– productive employment in the host country

– performing any “work” (which we’ll define later)

– attending a university

– participating in a religious pilgrimage

– taking up residence in the host country

– being compensated in host country

Business Visa Requirements

• Applications for business visas usually require– Signed application form & Photos

– Original passport (valid for at least 6 months)

– For non‐US citizens: original US re‐entry visa or temporary resident card

– Documents certifying purpose of stay, e.g. Company support and invitation letters

– Confirmed flight itinerary/hotel confirmation

Business Visa: Exceptions & Variations

• Requirement of a visa

• Allowable Activities

• Procedures

Variation Examples: No Visa Required

• Visa Waiver Program – Allows citizens of 36 countries to visit the US for business or tourism without a visa, for up to 90 days, and allows US citizens traveling to those countries similar benefits.

• Schengen Area – Essentially eliminates the internal borders between 26 European countries (such that a traveler visiting one, may travel to any of the others without obtaining a separate visa).

• APEC (Asia‐Pacific Economic Cooperation) – Facilitates business development in the Asia‐Pacific region, by allowing citizens of 21 member countries to travel between these countries without a visa, for business.

Variation Examples: Allowable Activities

• P.R. China – Some project‐based work in major provinces is allowed for less than 90 days

• India – Conference attendance requires Conference Visa (i.e. NOT a Business Visa)

• Brazil – Technical Services involving specialized knowledge, installation, start‐up, development, training, repair, etc. require work permit and entry visa

NOTE: Training / “Knowledge Transfer” rules vary widely and are frequently gray.

Variation Examples: Procedures

• Schengen Area – Very specific proof of insurance required, and personal appearance at consulate usually required.

• U.K. – Biometrics enrollment required of every applicant 16 or older.

• PRC, Russia, and others – Require an invitation letter from the host company, the government, or both.

• Most countries – Proof of legal residence in country of application (if not a citizen of that country).

…Except When it’s WORK

(and may require a Work Permit)

Question: Is it “Work”?

1. Will any “product” come from the person’s activities?

2. Who will receive the benefit of the person’s activities?

3. Who will direct the person’s activities?

4. Who will pay for the activities being performed?

Question NOT on the list

• How long will the individual be in the destination country?

Immigration Overview

U.S./Inbound Immigration

• Acquaint you with the types of nonimmigrant visas• Review Immigrant Visa (“Green Card”) Process• Process/Roles and Responsibilities

- Managers- Employees- External Legal Resources (Cohen &

Grigsby)- Human Resources

Types of Nonimmigrant Visas• L Visa - intra-company transfer• H Visa - specialty occupation requiring

college/ university degree• TN Visa - Canadian/Mexican nationals

working in the U.S. pursuant to North American Free Trade Agreement

• F Visa - students in this status may have work authorization

• E Visa - foreign business where commercial treaty exists between U.S. and that country

• J-1 Visa – for “cultural exchange”

Nonimmigrant L VisaRequirements

• Intra-company transfer

• Employee has worked for related company outside of U.S. at least one continuous year during the 3 year period immediately before transfer to U.S.

• Executive, managerial, or specialized knowledge position with foreign entity

• Employee will work in U.S. in executive, managerial, or specialized knowledge position

• Company blanket petition allows for applications directly at Consulate for most employees

Duration• Initial - 3 years

• Maximum - 7 years (executives/managers); 5 years (specialized knowledge employees)

Nonimmigrant H VisaRequirements

• Specialty occupation requiring a 4 year college/university degree in the field they will be employed in the U.S.

• Person must possess U.S. equivalent of a 4 year degree in a directly relevant academic discipline


• Maximum - 6 years

Cap Issues• 65,000 “regular” visas available in fiscal year

• 20,000 “U.S. Master’s” level visas available

Nonimmigrant TN Visa

Requirements• Employee must be in profession covered by NAFTA

• NAFTA educational and/or experience requirements must be met

Duration• Initial – up to 3 years

• Maximum - Indefinite (NOTE: Must maintain/prove temporary intent)

Nonimmigrant F VisaRequirements

• Full time student status at academic institution approved by USCIS/DOS

• Work authorization before graduation under Curricular Practical Training (CPT)

• Work authorization after graduation under Optional Practical Training (OPT)

Duration• “Duration of Stay” based upon continued school attendance

Nonimmigrant E VisaRequirements

• Foreign business majority owned by foreign nationals

• U.S. business majority owned by foreign business/individuals

• Employee national of same foreign country

• Substantial trade between U.S. company and foreign country or substantial investment by foreign company/owners into U.S. company

• Employee in executive/managerial position with U.S. employer or possesses “essential skills”


• Maximum - Indefinite

Nonimmigrant J-1 VisaRequirements

• Used by foreign students, scholars, experts, medical interns/residents, visitors, au pairs and trainees

• Requires support of U.S. government approved exchange visitor program sponsor

• Important: participants may be subject to two year “foreign residency” requirement

Duration• Varies with J-1 category

Employment-Based Permanent Residence Process

• Labor Certification Application (can be skipped for “executives/managers”)

• Immigrant Visa Petition• Immigrant Visa Application (with USCIS

or at a U.S. Consulate abroad)

Options WithoutLabor Certification

• Multinational Manager or Executive

• Extraordinary Ability/Outstanding Professor or Researcher

• National Interest Waiver

Other Paths to Permanent Residence

• Diversity lottery• Family-based immigration

– Immediate relatives– Spouses and certain children of permanent residents,

siblings of U.S. citizens and adult children of U.S. citizens

• Refugee and asylum applicants

PERM: The Labor Certification

Procedure

Important PERM Provisions• Prevailing wage• Recruitment• Filing procedure• Minimum requirements• Post-filing issues

What is a “Priority Date”?• Date on which the Department of Labor or

USCIS receives and enters into its respective system a petition or application filed on behalf of a foreign national

Why a Priority Date May Not Be “Current”

• Because the Department of State has already issued all of the allocated visa numbers for a particular preference category and a particular country

• Foreign nationals become permanent residents of the U.S. in accordance with per-country and per-preference category limits

What is “Retrogression”?• When a country and/or preference category

reach the allotted visa numbers for the fiscal year, the category retrogresses, e.g., a wait list is being generated for that country’s nationals for a particular preference category

Immigrant Visa(“Green Card”) Process Overview

Event

Time (Months)

Cumulative

Time (Months)

Step 1 (Not required for executive/ managerial level intra-company transferees)

Obtain Labor Certification from U.S. Dept. of Labor (PERM processing)

6 – 8 mos 6 – 8 mos

Step 2 Obtain approval from CIS on Immigrant Visa Petition

6 – 8 mos 12 – 16 mos

Step 3 Obtain Immigrant Visa (“Green Card”) • Consular Processing • CIS Office (adjustment)

6 – 9 mos 12 – 18 mos

18 – 25 mos 24 – 34 mos

QUESTIONS

Common Work Authorization Categories/Global Immigration

• General Hire

• Intra‐Company Transfer

• Highly‐Skilled Migrant

• Creative/Athletic

• Working Holiday

• Missions

• (Waived by international agreement)

Work Permit CategoryGeneral Hire

• Individual must meet certain criteria for salary level, education, experience, etc.

• Evidence is required to prove that individual is more qualified than the resident work force

• Usually requires advertising for the position and reviewing/vetting all qualified applicants

Work Permit CategoryIntra‐Company Transfer

• Individual must have been working for the company outside of the destination country for a certain length of time just before the transfer (usually 6 or 12 months)

• Host company and home company must be related by common ownership or control

• Often sub‐categories for management, specialists, etc.

Work Permit CategoryHighly Skilled Migrant

• Individual must meet high‐threshold requirements for education, experience, and/or salary

• Often requires a pre‐arranged position or job offer in destination country

• Individual qualifies on his own, and is not beholden to any particular employer

Typical Work PermitApplication Requirements – Applicant

• Copy of current passport (valid for at least 6 months)

• Updated, detailed resume/CV

• Detailed job description for the work to be done in destination country

• Salary and benefits information

• Details on work location in destination country

• Signed assignment letter or Letter of Understanding

Category‐Specific Work PermitApplication Requirements ‐ Applicant

General – Evidence of qualification for the job (e.g. copies of diplomas, reference letters, professional certifications, publication in trade journals, etc.)

Intra‐Company Transfer – Evidence of full‐time employment with the company for the required period (e.g. copies of payslips or bank deposits)

Highly Skilled Migrant – Evidence of personal worth in the marketplace (e.g. copies of post‐graduate diplomas, reference letters, copies of payslips or bank deposits, job offer, etc.)

Typical Work PermitApplication Requirements – Sponsor

• Proof of company registration• Proof of tax payment• Letter and/or form certifying willing sponsorship

• Filing fee• U.K., Australia, and others – Company registration or licensure to sponsor foreign workers

Typical Work Authorization Process

Step 1: Work Permit – Applied for in destination country, filed by the sponsoring company

Step 2: Entry Visa – Applied for in individual’s current country of residence, filed by individual

Step 3: Residence Permit – Applied for in destination country, filed by individual after arrival

Takeaway

Only BUSINESS is “business” – attending meetings, visiting customers/vendors/co‐workers, exploring business opportunities, collecting data for analysis elsewhere, house‐hunting, etc.

…except when it’s “WORK” – turning a wrench, performing services for hire, producing anything for the benefit of the host company, receiving direction and/or pay in the destination country, etc.

Impact of Foreign Immigration on Holders of

U.S. Visas

Fact Pattern:

• A U.S.‐based employee is assigned for work outside of the United States. What impact could this assignment have with respect to their U.S. immigration status if the employee is:1. A U.S. citizen

2. A Permanent Resident

3. A Work Authorized Nonimmigrant (such as H‐1B, L‐1A, etc.)

U.S. Citizens are Easy

• An assignment abroad has no impact on the U.S. citizenship of the employee. A U.S. citizen employee is free to leave and reenter the United States at any time, without objection by the Department of Homeland Security/Citizenship and Immigration Services.

Permanent Residents

• U.S. Permanent Residents have a few issues to consider with respect to their U.S. permanent resident status, including:1. Maintaining their U.S. permanent resident

status

2. If desired, maintaining their eligibility for U.S. citizenship

Maintaining U.S. Permanent Resident Status

• Permanent resident status is not automatically lost by a lengthy absence abroad, but an extended absence is one factor taken into account by the Immigration Service in judging the alien’s intentions. The key factor is the alien’s intentions, and the Immigration Service looks to several factors in order to determine the alien’s intent. These include:

1. The length of the alien’s absence

2. The purpose of the alien’s departure

3. The existence of facts indicating a fixed termination date of the stay abroad

Maintaining U.S. Permanent Resident Status

4. The continued filings of U.S. tax returns as a resident of the U.S. (as opposed to filing as a nonimmigrant or not filing at all)

5. The maintenance of other ties to the U.S. such as ownership of property, bank accounts, credit cards, drivers licenses, etc.

6. The location of the alien’s close family members

7. The location and nature of the alien’s employment, i.e., U.S. versus foreign employer, permanent versus temporary employment abroad, fixed term employment contract

One Factor Has No Bearing On The Alien’s Retention of Lawful Permanent Resident Status

• A return trip to the U.S. once a year for several weeks. Some permanent residents hold a mistaken belief that they can return to the U.S. once a year for several weeks in order to be considered permanent residents. Merely returning to the U.S. once a year does not necessarily address the factors listed above.

• With respect to paying taxes and filing returns as a U.S. permanent resident, there may be foreign tax treaties and tax credits which can impact, positively or negatively, the U.S. taxburden of the permanent resident. However, filing as a nonimmigrant in order to make use of such credits or treaties will negatively impact the maintenance of U.S. permanent resident status.

• Other important steps include the maintenance of a U.S. address

• A written statement from the employer specifying the terms and length of the assignment

• U.S. bank accounts

• U.S. credit accounts

• U.S. drivers license

Reentry Permits

• Permanent residents may apply for a “Reentry Permit” to ease their reentry to the U.S. after a stay abroad.

Reentry Permits• Permanent residents may use their green cards as documentation

to reenter the U.S. after a temporary trip abroad provided they are reapplying for admission to the U.S. within one year of their last departure. If the permanent resident seeks admission afterone year has passed since he or she left the country, the permanent resident card may be insufficient to reenter the U.S. and the permanent resident may be required to obtain a “special immigrant” visa at a U.S. consulate abroad in order to be readmitted.

• Alternatively, the Reentry Permit, a document issued for validity of up to two years, may be obtained by persons who will be outside of the U.S. for extended periods of time.

• The Reentry Permit does not guarantee the alien’s readmission to the U.S., but does certify that the alien’s trip abroad has been accepted by the U.S. government as temporary, i.e., that he or she is maintaining permanent resident status despite a lengthy absence from the U.S.

• The process of obtaining a Reentry Permit on Form I‐131 is very similar to applying for an Advance Parole document.

• Given the straight forward nature of this process, there is little reason not to do so for a permanent resident who may expect to be abroad in excess of a year.

U.S. Citizenship• There are several requirements for a U.S. permanent resident to be eligible for U.S. naturalization. One of these requirements is maintaining the continuity of residence for naturalization purposes. This is a different issue than maintaining permanent resident status as discussed above.

Nonimmigrant Visas

• In general, a foreign national who holds a valid U.S. nonimmigrant visa is eligible to apply for reentry into the U.S. during the period of validity of the visa stamp

• After an extended absence from the U.S., it may be a good idea to provide the employee with a letter confirming that the position previously approved by the Immigration Service and the U.S. Consulate remains available.

Nonimmigrant Visas• The fact that a foreign national employee is in the process of

obtaining permanent resident status does not impact their nonimmigrant visa status, as the permanent resident process is prospective, i.e., the employer is describing the position that will offered to the foreign national on a permanent basis at the close of the process.

• In fact, it is possible to complete the entire permanent residence process (including, if applicable, labor certification, the immigrant visa petition and consular processing) without ever having the foreign national employee physically present in the U.S.

Please note that this discussion does not involve in any way any tax or related customs issues which may apply to U.S. workers assigned abroad. Such issues are outside of the scope of this discussion.

Conclusion• No U.S. immigration impact for U.S. citizens assigned

abroad.

• Permanent residents must consider how to keep their status and eligibility for U.S. citizenship.

• Nonimmigrants must renew valid visa stamp to return to U.S.

Key Issues for Assignments Abroad

• Making sure the employee can get back into the United States

• MOBILITY article on this

International Relocation into the U.S.: 2012 and Beyond

• Immigration and Customs Enforcement (ICE) has shifted its focus under the Bush administration from large scale factory “raids” to I‐9 audits of employers suspected of employing unauthorized aliens.


● Backlog–Without legislation to increase the number of employment‐based permanent residents visas available, the long back logs (particularly for those born in China or India) will continue


• Similarly, the PERM labor certification process, which was intended to provide decisions within 60 to 90 days, will likely continue to be backlogged


• It is likely that there will be no major immigration legislation, including a “legalization” program, in 2012

• The “Deferred Action” Program

The Good News:International Relocation Works by Planning Ahead

• The Boy Scout motto: “Be prepared”

• The U.S. immigration system still functions, particularly for nonimmigrant/temporary visas

• By planning ahead for the relocation need, the necessary visas can be obtained

Questions

Matthew T. Phillips

Cohen & Grigsby, P.C.

625 Liberty Avenue

Pittsburgh, PA 15222

412‐297‐4860

Email: [email protected]