Our last blog on the topic of non-immigrant employees discussed some of the ways these programs may be at risk under the incoming administration. As an employer, you may be facing the loss of some of your key employees or new obstacles to bringing them back, if these changes occur. So what can you as an employer do NOW to keep this talent at your company – for good?
The EB(1)(c) Immigrant Visa
If your temporary foreign employee was previously employed abroad at a foreign affiliate, branch, or subsidiary of your U.S. company, this may be the best option to make them a permanent part of your team in the United States.
The EB(1)(c) visa is an immigrant visa – this means that approval will result in Legal Permanent Resident status for the applicant. To qualify, an employee’s company must submit a petition to U.S. immigration on their behalf along with evidence to prove that:
The U.S. company and the foreign company are affiliated, or that the foreign company is a subsidiary or branch of the U.S. company;
The U.S. company is real, active, and conducting substantial business;
The U.S. employer has been doing business for at least one year;
The foreign company is a real, active company;
The applicant was employed with the foreign affiliate, subsidiary, or branch for at least one year during the last 3 years (or if they have been in the U.S. for a while, one of the last 3 years before they entered the United States); and
The employee held an executive or managerial position at the foreign company and that the position offered in the U.S. is the same or substantially the same as the foreign position
Once the petition is approved, the employee’s application for residency will be reviewed and, barring any negative criminal or immigration history, approved for residency. The employee’s immediate family (spouse and children under the age of 21) can apply at the same time and receive the same benefits.
PERM Certification and Immigrant Petition
If you want to petition an employee for residency but they do not qualify under the guidelines above, you may be able to petition for them through the Program Electronic Review Management (PERM) process. This is a three-part process that first involves an application with the U.S. Department of Labor (DOL), followed by an immigrant petition with U.S. immigration, and lastly an application by the employee for residency, also filed with U.S. immigration.
While steps two and three of this process are similar to the process under EB(1)(c), the PERM process with the DOL is its own application with a distinct set of requirements. A major component of this process requires the employer to conduct a labor market test to prove that there are no qualified, willing, able U.S. workers to perform the position on a long-term, permanent basis. The recruitment process must follow the guidelines set forth by the U.S. DOL. After conducting recruitment, the employer may then file a Labor Certification application with the DOL. The DOL may approve, audit, or deny the application. An approval means the employer and employee can then work on steps two and three in the process.
Foreign employment in the U.S., though not likely to disappear entirely, has an uncertain future under president-elect, Trump. The sooner you act on behalf of your company and employees, the better your chances to retain the talent in your organization.
BUSINESS OWNERS AND HR MANAGERS: FIND OUT WHERE YOU STAND! Your company’s foreign employees may already qualify for a benefit that you are not aware of yet. If you have never talked to an immigration attorney about your situation before, now is the best time to do so – before the new administration starts making changes that may affect your employees and your business. Contact an experienced, licensed attorney to find out what YOU can do to help your situation. If you would like our assistance, contact our office today at 210-932-3600 to set up a consultation.