6. Specific Occupations: Entertainers, Performers, Athletes, and Cultural Figures: O, P, and Q Visas
1. Overview of Employing and Compliance in Hiring
All businesses deal with governmental rules and documentation requirements to some degree. However, the many businesses which utilize foreign national employees to supplement their workforce also face Department of Homeland Security (DHS) and Department of Labor (DOL) requirements and scrutiny, among others.
Hiring and continuing to employ a foreign national lawfully while avoiding governmental scrutiny or worse may appear straightforward. However, anyone with experience in the field knows that an employer’s full compliance in the flux of a business’s day-to-day operations can be a difficult and challenging reality. Whether a business be production or service-related, low-tech or high, white collar or blue, or accomplished with shovel or keyboard, an employer of a foreign national wants to operate smoothly without concern for possible immigration law violations.
Recourse to experienced, readily accessible local immigration law counsel affords an employer not only necessary day-to-day advice and long-range planning, but also a potential firewall against government investigation and pursuit.
2. Compliance in Hiring in the U.S.
An employer may lawfully hire a foreign national residing in the United States so long as the individual has work authorization. A valid Employment Authorization Document (commonly known as a “work permit”) indicates to an employer that he may lawfully employ the card holder according to the terms of the EAD, unless employment is in some way restricted.
There are currently some 45 work eligibility categories enabling foreign nationals to work in the U.S. Some commonly recurring examples of work-authorized individuals are: an applicant for the green card (LPR) or asylum, a DACA recipient, a holder of TPS, and individuals seeking certain forms of relief while in removal proceedings.
An employer may also hire an individual originally brought to the United States by another petitioning employer, such as with the H1B visa, so long as caution and compliance with applicable rules are exercised in the “porting” process.
3. Hiring Individuals from Abroad
There are several visas available to a petitioning employer to fill a position with designated duties. Many forms of employment have limitations on the number of visas available (“caps”). The highly prized H1B visa is currently capped at 66,000 visas (with certain cap-free exceptions) and there is vigorous competition for them by U.S.employers. (Some two-thirds of FY 2015 H1B visa petitions filed in the first week of April 2014 were rejected in a lottery process.)
By contrast the L visa which allows an international employer to bring to the U.S. a key foreign national employee from an affiliated operation is not cap-limited.
4. Hiring Multiple Workers from Abroad
An employer in need of multiple workers for agriculture may file a “blanket” petition for the H2A visa (unlimited in number).
The H2B visa (with an annual national cap of 66,000, divided equally for the two halves of a fiscal year) can be broadly used for a seasonal, intermittent, one-time or peak load temporary employment need, such as health care, construction, tourism, food services and processing, and virtually any other non-farm work.
The J visa program is a multi-faceted cultural exchange operation which includes employing workers from abroad for summer positions.
The H-3 training program visa essentially allows a U.S. employer to recruit foreign nationals to undergo training in the employer’s business in the U.S. for up to two years before the employee’s return to the home country to put the learned skills into practice there.
5. Beneficial Country-Specific Programs
An employer may want to explore the favorable treatment represented by country-specific visas for professional and specialty occupations, including Australia (E-3), Canada and Mexico (TN), and Chile and Singapore (H1B1). Employee positions may include brew masters, vintners, professional workers, teachers, health specialists, technicians, engineers and scientists, and many more, depending upon the visa involved.
6. Individuals with Specific Skills: The Entertainer, Performer, Athlete, Cultural Figure
U.S. communities are regularly enhanced by foreign nationals who stay for a time on non-immigrant visas as athletes, performers, entertainers and cultural figures. Typically an entourage may accompany the visa holder on visas of their own. Individuals who want to bring individuals to the U.S. to share their culture through public events, to perform as an entertainer or athlete, or to enlighten the U.S. public through their special gifts and abilities should consider the O, P, and Q visas.
7. Clergy and Employees of a Religious Denomination
The R visa for a “religious worker” is non-immigrant in nature, being limited in duration and purpose. Also available to a denominational employer is the EB-4 immigrant visa (the counterpart of a green card, but issued abroad).
8. Petitioning for the Green Card for an Employee
An employer may assist an individual in acquiring the green card (lawful permanent resident status), particularly holders of H1B and L visas which are unique in allowing the holder of these non-immigrant visas to enter the U.S. with “immigrant intent”. The procedure is two-fold, requiring a DOL PERM labor certification, followed by a USCIS petition approval process.
9. Employer’s Immigration Law Obligations
Every employer who has the benefit of employing a foreign national bears the burden of verifying in advance the employee’s identity and work eligibility through completion of an I-9 form.
E-Verify is a significant employer internet resource (presently voluntary for most employers until they actually enroll) which will promptly verify (or not) a prospective employee’s work eligibility. The program allows an employee to self-verify.
However, in the verification process an employer must avoid going so far as to discriminate against a work-eligible employee. The employer must maintain a fine balance between verification and non-discrimination.
There is a best practices framework for recording and maintaining accumulated I-9’s. While there are numerous ways through which an employer can maintain its I-9 system, including in-house or outside human resources personnel, there is good reason to have on call a knowledgeable immigration law “employer- lawyer” to oversee on-going system compliance, forestalling possible investigation, audit and the unannounced governmental visit by, as well as penalties which could include significant fines and even jail time.
10. Consequences of Non-Compliance
The range and severity of penalties are potentially devastating, particularly for repeat offenders. ****http://www.uscis.gov/i-9-central/penalties.
An employer who receives a notice of audit should proceed calmly and discreetly, bringing in experienced counsel to organize the business’ response.
Degree of enforcement of non-compliance has varied with administrations. While the present administration has been much stricter than its predecessor, a study shows that the government has on average collected only 40% of the amount of fines imposed.