Virtual Coffee - Business Immigration

okay i'm rebecca gray this is a a virtual coffee with pratheeba agrawal for sponsored by the entrepreneur's lawyer which is a collection of tools and resources for startup general counsel and prathiba i will let you introduce yourself thanks so much for joining us i'm happy to be here thanks for having me rebecca um as rebecca said i'm pratibha agarwal i'm an immigration attorney and we help clients in all aspects of immigration law my firm is based right outside of washington dc in arlington virginia but immigration actually the federal practice so we're able to help clients all throughout the united states thanks for having me yay get started great so i was the first thing that i that came to mind for me was like what are we not allowed to ask what are we allowed to ask when we're interviewing job candidates yeah that's actually a really really good question and it's something that could kind of get you in trouble if you don't know what not to do so what we recommend to our clients is asking you're allowed to ask kind of two questions the first one is really what if if you're offered the position will you be able to show that you're authorized to work in the united states so they don't necessarily need to show it at the interview i wouldn't necessarily ask for it at the interview but if offered the position would you be able to show that you're authorized to work in the united states and then also will will they need sponsorship in the future you can ask that as well okay and um if they do need sponsorship how is that what kind of internal processes do you recommend there uh it's just something to keep track of that they'll they will need to be authorized to work in the u.s before um before you know you hire them or when you hire them they'll need to show that they're authorized to work in the us and if they need sponsorship in the future it's just something to consider for for yourself you're not required to hire them if that's something your company is willing to take on okay what about uh what about once you've actually hired them so once you've hired the first thing you need to do is verify that they are they are authorized to work in the us and so there's this is you know obviously a quick overview and a summary so you can get more in depth into it but essentially a us citizen is always authorized to work in the u.s and they can show that through either a birth certificate or us passport um a green card holder is allowed to live permanently in the u.s and work

permanently in the u.s if they have a green card that's fine too the other most common document is the employment authorization document and that can they can receive that through various different um various different ways so asylum holders can receive that family based options can sometimes provide that as well so if they have an employment authorization document it's just a card and they can they can work they have authorization to work as well with that it does expire so you will need to monitor when it expires and make sure you ask for authorization once you know if you see that it's expiring um other types of visas that will allow them to work are usually like an h1b or an o visa and your company will need to sponsor that and student visas as well but that that will come with an employment authorization document but with an h1b you'll know that they're authorized to work because your company will have to be involved in sponsoring that so i had no idea what an employment authorization document looks like or like how to how to tell if a visa authorizes work so um i actually went to the uh uscis website to to look at samples and these were some of them one of the things that surprised me is that a social security card that doesn't say you can't work in the united states actually means you can um so that surprised me these are all documents that apparently count for i-9 purposes um yeah so i i'm gonna disagree on this is that social security alone is not going to help you qualify for work authorization um so for example we have this employment authorization document over here you see it on the right side of my screen um that has an expiration date that is a valid document and you have a green card at the bottom left that is a valid document the uscis actually has a great resource online it's just basically instructions on how to verify that someone is able to work in the us so a child could have a social security number it doesn't actually mean that they're authorized to work in the u.s right so there's different um so you can get a social security number and not be authorized to work so that's just something um to keep in mind that alone is not sufficient also a visa document like this what you see here um that is essentially an entry document this is the one in the middle it's an entry document and it allows them to enter the us but that alone doesn't provide any kind of work authorization either so what you're looking for is really an employment doc authorization document a green card a u.s citizen and then if you've sponsored them um you will know that obviously so that that type of visa like an h1b or an 01 that requires employment-based sponsorship that would qualify as well so what this says to me is that you you this is not a do-it-yourself process because i pulled all of these from the list on uscis as like work authorization documents i'm thinking you need you need expert advice if you're looking at anything other than the obvious yeah at least in the beginning if you're unfamiliar with this process i would say you should probably consult an immigration lawyer just to make sure you're not um hiring someone that's not not authorized to work in the us and actually we've within our firm have seen um companies that have hired based on this visa document in the middle just not knowing whether or not that was okay as documentation right so um it can be a little bit misleading so as as start a general counsel for instance you're probably going to want to get some training and processes in place so that you know if you're looking at this you're great if you're looking at that you probably need to ask more questions exactly exactly cool sorry well with all of these complications you probably are wondering why higher for any international workers at all it's so complex right so um i i agree it is complicated um but the clients that we have seek international workers for various reasons one the main reason i would say is um many many of these qualified workers are are in the tech industry and we just in the u.s we just don't have enough graduates or enough people with the skills necessary to work in these tech jobs also some require foreign language foreign language options for foreign language abilities so that also is something that you know you'd want to consider um and then in some visa types there's not even necessarily other than local labor laws that might impose a minimum wage um there's no federal wage requirement for people on certain student visas so they don't necessarily have to be paid and what they're here for really is because they want to stay in the united states they want to gain work experience so they're really really devoted to the company and are incredibly motivated to do a good job so that that kind of work ethic is not always found found in the u.s so those are the main

reasons i would think um a company would be interested in hiring or sponsoring an international worker this is one that really surprised me too that you actually do not have to pay them at all yeah yeah so for the first year so usually opt will get more into in depth in a second but opt is actually the first year after someone graduates from a us university they're allowed to be here for one year after after graduation and work and gain experience in the field that they studied and they don't actually need to be paid so that's something for employers to consider especially startups that may have a limited budget that's something for them to consider in terms of getting someone with the required skills and then later on decide whether they want to sponsor them for different visa types or even a green card great should i should i keep going yeah yeah okay since you're controlling the slides talk to us about the student visas then great so um yeah so student visas are a very common type of employment optimization so you can so you there are two main types to kind of be aware of right so there's um cpt which stands for curricular practical training and this this is um work experience or authorization to work while the person is enrolled in school so some programs have to be cpt approved um and they will be authorized to work while they are in school so it has to be related to their degree and opt is the most common one that we see in terms of student visas and work authorization so opt is what i just mentioned about um the first year after a first year excuse me the first year after they graduate they have one year to get on the job experience that relates to their degree and so there's no wage requirement for that so that's something you can consider for people on opt with a stem degree so uscis publishes a list of degrees that qualify for a stem extension so if the degree is on that list after that one year the candidate can apply for two additional years of being able to work in the united states so that's only for people with stem degrees and that does have a wage requirement so you need they have to be paid it doesn't have a particular wage requirement but they do have to be paid and the employer is involved in filling out a training plan essentially coordinating with the school and the candidate and talking about what the job duties are going to be and how they relate to the degree and so the stem is a little bit more limited in the sense that they do have to be paid but just regular opt does not have um does not have on like does not have a prevailing wage requirement they don't necessarily have to be paid at all but of course comply with local labor laws if they do require that they they can it needs to be paid a minimum wage so if i'm running say a tech startup and i've got someone who's coming in maybe part time while they're in school under cpt and then we have them for a year maybe unpaid even which sounds awful but if it's someone who actually has the resources to do that and wants to that's you know that's an option um for opt then they qualify for that stem extension is the wage that they they are paid determined externally or is it just a federal minimum wage how what how does that work it's determined by the company so the company will necessarily need to like pay attention to local labor laws so they may be talking to an immigration attorney and also an employment attorney to figure out what what they must pay but generally um the company decides and there's no certain wage requirement just at least with regard to immigration laws that they would need to pay for this demopt extension i'm assuming that by the time we've got someone for a year and we know we want to extend it's probably time then to start thinking about an h1b is that right yeah absolutely so that takes us to our next slide here and what it what what is involved in sponsoring an h1b so you'll encounter um h1bs in two different in two specific circumstances right so the first one could be an opt someone on opt or stem opt that is looking for your company to sponsor an h1b for the first time and the second scenario is essentially the person has an open h-1b already working with a different company and they now want to come and work with you and the first scenario what you need to keep in mind is you can only apply for the h1b at certain times of the year so that's very very important to know so if you're thinking about sponsoring an h1b you can really only do it on april 1st of that year and the person starts working on that h1b october 1st of that same year so you enter them into a lottery there are only 85 000 visas available um that you enter them into the lottery in march so for for companies that are considering this you might want to get that process started now find your attorney get your um get your materials ready uh so you usually start i would recommend january february is the time that you uh you know you essentially figure out whether or not you're going to sponsor someone you enter them in the lottery in march and then the lottery is run between march 20th and april first of each year and you'll find out if your candidate was picked in the lottery and then you have time to submit the full h1b application if approved the application the applicant the beneficiary will be able to start october 1st of that same year so you have to keep in mind um you know they have to maintain status up until october 1st of that year so if they're on if they're on opt or stem opt and that's going to run out in like may of this year then is there going to be a gap before they can work under the h1b um so the the uscis has factored that a lot of people on stem opt or opt are the ones that are entering into the hw lottery so there's what's called a cap gap extension so essentially if it expires somewhere in between um somewhere in the summer let's say before the h1b period starts they automatically will extend that status that opt status all the way until um until the h1b takes effect so that's great so actually i should let me clarify all the way until september 30th right so sometimes uscis is um is you know processing and taking a longer time to approve that h1b it doesn't that cap gap extension doesn't go beyond september 30th so the person will actually need to stop working if they don't have any other status um until the h1b is approved and so what kinds of wage requirements are involved with an h1b so with an h1b it's a little bit it's a little bit more regulated so you can essentially you know the employer will will drop the job duties um and we'll figure out if it's it's so complicated so i'll try to summarize as best as i can what's the what's the quick and dirty the quick and dirty so there's what's called the department of labor publishes what's called the occupational outlook handbook the ooh so what you want to do is match your occupation to something in the ooh so you would look at that and then the department of labor has also published right so not every every single occupation is going to have an exact match some sometimes they do sometimes they don't so then you go and look at another site that the department of labor has that essentially tells you this position in this location needs to be paid x amount so the employer then has to pay at minimum that amount or higher um so it's you know it's something that you decide like maybe i don't want to put this person in a supervisory role because i can only afford to pay them 65 000 and not 80 000. um so it's something to figure out between the employer and the attorney what's going to qualify for the h1b and then what the employer can afford as well okay and you can't stay on an h1b forever so what's next and how far in advance do you need to plan and is it the same wage requirements yeah so you can't be on an hmb forever so it's you know it's three years you can ask for three years at a time with a six year max and then you have to basically consider whether or not you're going to be sponsoring that green card which is a more complex process and can take anywhere between two to two and a half years in some cases to get the green card um some kind some countries have a really long wait time for a green card to be available so if you have someone from india for example uh the full green card process they won't actually have a green card in hand for 10 years so they could extend their h1b beyond that six years but you will have to have the green card process underway for that for that to be available how long can you extend an h1b if you've got a green card pending um forever really so if you have if you're in a certain phase of the green card process you can just continue extending it until the visa the green card based visa becomes available okay so how far in advance then because i was thinking oh my gosh if you've got someone who's starting the three to six year h1b and it takes that long to get a green card do you need to start like the day after you get the h1b when how how far we you know since the h1b can go on for six years i'd probably start like before you do the extension for the second h1b or i mean you can you can start even before that if you want to if you just want to have it underway um and make sure it gets approved but the green card is complicated as you can see yeah yeah walk us through it sure yeah so the first part of the green card process actually doesn't really involve the candidate so much at all so essentially the company it's called perm if you've heard of it the company here has to show that he basically has to show that i've tried to recruit u.s workers for this position and there are no u.s workers available for the position so that's into the entire gist of perm it has multiple different steps so the first step at least the way our firm does it you can do it different ways i would say this is the most conservative way of doing it and so you essentially go through the candidates qualifications and then you go through the job description and you figure out what the minimum qualifications are for that position you take that and you submit it to the department of labor and they will issue what's called a prevailing wage determination telling you you need to be paid x amount that this is the minimum that they need to be paid for this position in this location so it's based on the job duties as well as the location of employment so once they issue the prevailing wage determination the company goes through recruitment and certain certain recruitment methods are regulated they're mandatory for all for all positions and others you can choose from through a list so essentially for most positions that require a bachelor's degree or higher for example um you'll really need to do some sunday newspaper ads which can be antiquated but and also very expensive i'm thinking who who actually reads the sunday papers anymore but yeah i mean i could yeah exactly so essentially you have to go through this whole process um that is a little bit antiquated but it's required so you'll go through this whole recruiting process and then after it's done we certify we submit uh the application to the department of labor to certify that we actually went through the required recruitment process and we couldn't find anybody to to satisfy this job to basically you know take over this job position and then the real process begins right yeah so once so that can take a while so that whole process is going to take at least a year um and then the the next step is sponsoring so essentially this is the easy i was the easier part so you're showing that the company can support the prevailing wage and that the candidate you know is is not a terrorist essentially and doesn't have communicable diseases and that those types of things so this is the easier part of the green card process but the firm is the more involved regulated question i noted that you talked about as far as candidate admissibility goes the visa availability what happens if there's a 10-year wait list for visas from that particular country i mean and you've already got them working for you can you extend an h-1b because you can continue extending the h1b when we get kind of up to stage two um is is the most common way that our firm will handle it so essentially once you file this application about the company showing that the company is able to you know to support this wage that they're established enough that they're real company this is a real job um once you once you submit that and that gets approved we continue extending the h1b after that there are different ways to extend h1b but i think the short the short and easy is that one so you could actually be on an h1b for an extremely long time depending on how how this all shakes out with the visa availability okay exactly so what does the normal process look like so this is what we see most often so employers will hire someone either most like most of the time on opt or stem opt and the candidate will be working for them on stem opt or opt because of the h1b lottery because it's on a lottery system you don't know if you're going to get selected so you basically want to start applying for that h1b so you have more options right so if you like the person um essentially as soon as they're eligible for an h1b so in march following the year that they've started i would submit the i would enter them in the h1b lottery if they get picked great apply for the h1b if they don't get picked try again the next year um so that's that's what i would suggest so essentially we see stem opt opt and then the employer enters them in the lottery and sponsors the h1b and then eventually goes to the green card the employer-based green card okay and the stem opt folks will just have a longer have more bites at the h-1b lottery apple basically um yeah just because they have three years already on on stem mpg so the other thing we see is let's say you're on opt and you don't get paid because opt again remember is one year so that you don't get picked for the h1b you don't get picked the lottery they'll go back to school so that's that's complicated we'll go back to school and continue working on cpt um and submit again the next year for the hmv lottery so how many phds can you get basically exactly exactly and it's very frustrating because it's obviously not easy to work and be in school at the same time and they would be required to do that but that you know that goes to the to show exactly that a lot of international employees are just so devoted and hardworking that it might be worth it to go through this process okay well what do we do if they have additional questions um they can call me here's my information thank you so much for spending a few moments here on our second virtual coffee with the entrepreneur's lawyer and yeah hopefully hopefully this has been helpful i know it has been for me and we'll talk again soon

2021-01-23 16:34

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