Business Law Today: 10 tips about immigration for business counsel

ABA Section of Business Law
Business Law Today
July/August 1998

Playing by the rules
10 tips about immigration for business counsel

By ROBERT DIVINE

Divine is a partner with Miller & Martin in Chattanooga, Tenn. He is author of Immigration Practice, a handbook for lawyers published by Lexis Law Publishing.

Considering the increasingly globalized U.S. economy and a tightening labor market, more "generalist" business lawyers in the United States will be encountering clients' needs to hire workers from other countries.

Obviously, foreign businesses locating operations in the United States need to bring people here to oversee the operations and to pass on technical expertise. Existing U.S. clients establishing facilities overseas normally need to bring personnel from acquired businesses through U.S. operations for training if not for transfer of newly acquired expertise. Businesses only seeking to market products abroad still find that they have increased need for a more internationally diverse marketing or product-development team.

Less obviously but more often, a U.S. business with little or no international business strategy finds that a foreign national already in the United States or interested in coming to this country has critical knowledge and skills that are practically unavailable in the applicable labor market. Even a business with no interest in international hires may find that its workforce consists of a substantial number of foreign-born workers who may or may not have valid work-authorizing papers.

The business often shunts the immigration problem onto the manager with responsibility over human resources. Though employment lawyers often get the project, just as often it is the general business lawyer who first hears about the prospect from a key executive who has identified desired foreign personnel. Even a generalist who opts not to become engulfed personally in the myriad of government forms and the "alphabet soup" of visa classifications comprising an immigration lawyer's daily life can benefit from some basic principles about immigration law in order to coordinate these practicalities with the rest of the company's legal matters. Here are 10 tips for the generalist to keep in mind about hiring foreign-born personnel.

Carefully audit the company's I-9 compliance immediately, take corrective action, and be prepared for sudden INS employer-sanctions enforcement.
Every employer is required to have an I-9 form completed for each employee hired since Nov. 6, 1986, and potentially faces up to $1,000 fines per worker (alien or not) for failure to file the technical requirements. The big I-9 "scare" visited by legal publishers and seminar providers in 1987 rang hollow as the Immigration and Naturalization Service used a low budget mostly to warn employers. Later, bigger budgets allowed more enforcement as fines replaced warnings, but more recently Congress legislated a "good faith" defense to paperwork violations that are cured within 10 days of the INS' explanation of the problems.
The good faith defense, however, does not apply to failure to have completed I-9 forms at all, and it is surprising how many employers have none. According to new INS regulations, the good faith defense actually applies only in the most innocent of minor paperwork errors and leaves even the best-intentioned employer unprotected from large potential fines. In certain geographical areas where zealous enforcement is pursued, fines are being levied even against decent employers who clearly have not intended to attract unauthorized aliens through lax I-9 compliance.
The presence of illegal employees and other factors can increase the paperwork fines. Initial fines for "knowingly" (which includes constructive knowledge, a problematic concept) hiring or continuing to employ an unauthorized alien are $1,000 to $2,000 per alien. One such violation on the first INS audit jacks the fine range to $2,000 to $5,000 per unauthorized alien on the next audit. The best course is to ensure pristine compliance with I-9 rules through careful training of HR people in the trenches. The second course is to decide in advance how the company will respond to INS requests for I-9 inspection and to INS warrants and subpoenas, because things can happen too fast to react when true enforcement begins.
Note that the rumored revision of the I-9 form has not yet occurred. Congress has given the INS a brief reprieve from its mandate to limit the range of documents employers may accept. Rest assured that the I-9 revision will be heavily publicized when it does occur.
Have counsel knowledgeable about immigration and about the company review and coordinate all of the company's immigration matters to ensure consistency in approach and in representations to the various agencies involved.
In many large businesses, scattered managers who have made contact with foreign-born workers receive forms prepared by the alien's immigration lawyer and sign them on behalf of the company. When they do so, they make varied representations on the same topics
but judgments in these matters really ought to be made at a high level. Immigration petitions and applications involve representations to the government. Often they receive little routine attention from corporate counsel, and the HR people involved are not always attuned to the legal realities and implications concerning representations on a wide range of corporate issues that might need to be made.
The INS and the Department of Labor appear to be becoming more interested in and capable of detecting fraud by tracking different immigration activities of the same employer (or especially labor contractor) through improving computer links and other means. Misrepresentations to the government are not good and can surface in sudden, unexpected and embarrassing ways in immigration matters.
To avoid serious problems that could arise from seemingly small inconsistencies, a company should clear all immigration-related filings with a single person or group know-ledgeable about the applicable law and the company (and the fast-changing aspects of each). In order to sell this "immigration coordinator" concept, the business lawyer may emphasize that central coordination of filings can also result in central coordination of filing deadlines to help ensure that alien employees do not fall out of status.
Consider the immigration consequences before and after entering a significant corporate transaction or any personnel matter affecting an alien.
Continued eligibility for some types of immigration status depends on the ownership or structure of the employer. A merger, a move or even a transfer of a few shares of stock can suddenly render a key alien employee out of immigration status, which can usually be avoided with planning. Sometimes the technicalities of joint ventures with foreign entities can be slightly adjusted to enable easier flow of foreign executives, managers and technical people. Substantial changes to the duties, pay, work location or other terms of employment of a sponsored alien employee may require a new petition or other filing that must be approved before the change takes effect. Such company-wide or alien-specific changes should be run by the "immigration coordinator" discussed in No. 2 above before implementation.
Put yourself in the bureaucrat's shoes.
By the time you are involved, everybody wants the matter resolved yesterday (particularly since they waited until past the last minute to tell you about it). You have awakened yourself at 2 a.m. again to try to speak with that unnamed U.S. consular officer in Riyadh, Saudi Arabia, at the beginning of his morning (especially when you had promised the client an answer by Friday and you tried last Thursday night only to find that the office is only open Saturday to Wednesday). You have been passed around through the embassy phone system for 30 minutes and disconnected four times. You are thinking that you or your client know a powerful congressman who should be able to get someone fired (You are probably wrong, by the way). It is hard to think of anyone's frustrations but your own.
Avoid venting your frustration and, perhaps, desperation on the bureaucrat from whom you are seeking an immigration benefit. Each office of each agency has different types of internal issues, manpower difficulties, tangential worries and procedural idiosyncrasies that are worth knowing before your approach. If you do not know the agency you are facing, consult someone who does. Give the agent the information the way he or she likes to see it to complete any checklists. Appreciate the person's humanity without demeaning their professionalism, tempting though it may be. Know and be ready to cite the agency's regulations and internal guidelines in a spirit of helpfulness. Of course, be prepared to get tough with or as a last resort to go over the head of the occasional bureaucrat who gets nasty.
Understand the form, and articulate and document the obvious.
Most immigration petitions and applications involve a government form, an explanatory letter and supporting documentation. Take care with each. Many of these forms look deceptively simple. How would you know that requiring a special skill in your client's labor-certification application for an alien in short supply will add over a year to the processing time?
Unless you know otherwise, assume the agent reviewing your file knows nothing about your industry, much less your company, and does not believe anything you say that is not documented in some way in addition to your company letter. Your company's cover letter needs to make sense and spell out the situation in a vacuum. Each point needs a supporting document or many of them, whether a stock certificate, a school transcript, or even an affidavit. Get someone unfamiliar with the situation to review the letter and documents before they are filed to point out gaps. Imagine your examiner's supervisor saying "good job" when the examiner's approval of the application is reviewed.
Take administrative assertions seriously.
For some reason, it seems that people who would never lie in court are tempted to fudge the facts when submitting matters in writing to an agency, particularly in immigration matters. The question is not, "Is there any way they could find out about it?" The question is, "Is it true?" Many INS filings require assertions by employers that they have posted notices, surveyed a prevailing wage and advertised for U.S. workers. Unit managers need counsel that, even if honor alone is not sufficient, the serious administrative and criminal consequences of a misrepresentation to the government outweigh what is often accurately perceived as a substantial unlikelihood of discovery. Aliens should be reminded that a finding of misrepresentation can establish one or more of several grounds for permanent exclusion from the United States.
Establish clearly the lines of responsibility and potential conflicts between the company and an alien when "sponsoring" an alien for immigration status.
In an ideal world, the sponsoring company would have its immigration lawyer and the alien would have his. Given the typical alignment of interests of the employer and alien, however, rarely does this make economic sense. The first thing is to decide and agree who will pay the attorney's fees for all or specific aspects of the proceedings. The employer and alien almost always do have different interests in that there are some things in which one is interested and the other is not interested
though not necessarily opposed. The employer technically is the applicant and petitioner in the first stage or two of an employment-based immigration matter and should insist on sufficient control of those stages to ensure that representations are accurately made.
Even if the employer allows the alien's immigration lawyer to work up the papers, the employer's own counsel should at least review them. On the other hand, the actual visa or permanent residence application involves issues of the alien's admissibility to the United States and thus whether the alien has a criminal record, a health problem, a history of smuggling aliens into the United States, etc.
very personal matters for which the alien needs independent counseling. An employer is really not in a position to give an alien personal advice on such things.
Since problems with admissibility often could lead to problems with employability, and since an alien may have ultimate plans for other employment not disclosed to the employer, any lawyer representing both the employer and the alien needs to inform both parties of the absence of attorney-client privilege between the two concerning information told to the alien and the possibility of terminated representation for both in the unlikely event a conflict of interest arises.
Consider the tax and benefits consequences of immigration alternatives.
Particularly in international company transfer cases, discuss with counsel knowledgeable about tax and benefits in both countries the potential tax ramifications both to the company and to the alien before choosing among alternatives to an immigration problem. Equalization of pay and benefits for transferred workers can be particularly tricky. Payment of a worker from an affiliated company abroad does not necessarily relieve the U.S. employer of tax withholding obligations for work performed in the United States Alien workers should be referred to tax preparers knowledgeable about tax treaties and other rules applicable to foreign workers.
Remember that immigration law is complex and rapidly changing.
Immigration law and procedure has long been a "boutique" area because it is arguably at least as complex as tax law and constantly emanates from an excess of sources including federal statutes; federal court cases; and most important, at least four federal agencies' regulations, policy statements, administrative hearing cases, internal memos, forms and even letters to lawyers. Just using the wrong filing fee or agency office address can cause an embarrassing return of a petition and a few months' delay. Spare yourself some embarrassment by at least having a serious immigration lawyer review your situation and papers before you file them.
Keep alien employees technically in status.
In the last few years, Congress has substantially upped the ante in the difficult game of observing all the inscrutable technicalities involved in maintenance of legal immigration status. Some of the prohibited activities include:
- changing or extending the status of a visitor, even a business visitor, who entered without a visa (other than a Canadian citizen);
- filing a petition to change or extend a visa status after the old status ends;
- letting the person work in a new status or for a new employer before the petition has actually been approved;
- employing a foreign student even with a work card more than 20 hours a week while school is in session;
- failing to maintain a a full course load of at least 12 hours as a foreign student at all times before graduation;
- implementing a material change in the terms of employment such as duties, pay rate, location or employing business entity structure or ownership without first filing an amended petition to approve such change;
- moonlighting for another employer without an additional approved petition;
- failing to keep a temporary visa status extended even after filing the final papers to adjust status to permanent residence;
- traveling outside the United States without INS permission once an application for adjustment of status has been filed; and
- failing to confirm the intent to return to a home abroad at the end of a visa stay if permanent residence is not granted in the meantime.

These are just procedural items that do not consider the complexity of substantive eligibility rules.

The automatic penalties for even technical violations are increasingly harsh: The tiniest "overstay" results in automatic cancellation of the alien's visa, which can only be replaced at a U.S. consulate in the alien's home country (not Canada or Mexico). Even (and especially) unwitting technical violations of U.S. immigration status that persist for more than 180 days might lead to a three-year or 10-year bar of the alien from the United States
a very harsh penalty. Persons merely denied entry to the United States at the border or airport can become subject to a five-year bar from returning, and persons deported are barred for 10 years.

Immigration law is a specialized area fraught with traps for the unwary. However, a generalist has a place in seeing that the key aspects of immigration law for a company are being attended to by someone in a manner consistent with the company's other business operations and legal obligations. Attention to the 10 points above will put the business lawyer in good stead when the call for help with an immigration problem inevitably comes from a client.