Small Business Hiring Challenges and the Immigration Landscape

What small business owners need to know before considering hiring foreign nationals.

Editor’s note: Part two of business and immigrations looks at whether there may be challenges for small business owners and potential insights. Part one What Are Potential Small Business Impacts of New Immigration Policies? 

The current administration’s America First executive order of April 2017 is rippling through immigration processing by causing reviewing officers to look more restrictively at petitions filed by employers.

Three considerations to be aware of before hiring foreign nationals: 

1.  More Restrictive Adjudication of Level I Wage H-1B Employees

In a recent case handled by our office, a petition involving a foreign national, with a Master’s degree in Accounting, was denied allegedly because the offered, in-house, accounting position did not really require a candidate to hold a degree in accounting.

The reviewing officer disregarded a declaration from the company’s CFO in support of the position that a baccalaureate degree was required on the basis that the employer’s evidence was self-serving. The reviewing officer also disregarded the employer’s expert report on the grounds that it was too “general” to be probative.

The case is, currently, up for reconsideration by USCIS. What the case teaches is that even Level I positions in occupations traditionally considered “specialty occupations,” like accounting, may be subject to challenge and that the standards for determining what constitutes a “specialty occupation” are becoming more arbitrary.

2.  Increasing Hurdles for Companies Seeking to Bring in Intra-Company Transferees

The more restrictive construction of the law evident in H-1B adjudications can likewise be perceived in connection with the L (Intracompany Transferee) and International Executive and Manager Immigrant Visa categories (the standards of which are virtually the same).

In a recent case, Bird Technologies Group Inc. v. USCIS, a company trying to bring into the U.S., as an immigrant, a high-level executive working in Brazil, had its visa application denied by USCIS on the grounds that the prospective employee, located in Brazil, was employed by a foreign affiliate that was not incorporated in Brazil, which allegedly raised the objection that the employment relationship was not bonafide.

This determination was made despite evidence proffered by the employer-petitioner that the prospective employee was employed and paid by the foreign affiliate.

If the determination by USCIS is sustained on appeal, it could potentially restrict the potential usefulness of both the L-1A and EB-13 Immigrant visas to multinationals operating worldwide, but not necessarily incorporated in every county where the beneficiary- employee may be located.     

Another recent case of significance is Matter of G-Inc., which was recently decided by the Administrative Appeals Office (“AAO”) and adopted as binding precedent for all USCIS adjudicators. In this case, the AAO sustained an appeal in connection with the L-1A nonimmigrant visa petition for a, so called, “functional manager.”

Although the appeal by the petitioner was sustained and the decision purportedly clarified what a “functional manager” was, consistent with past precedent, the case reaffirms more clearly that small companies are less likely to meet the definition of “functional manager” than large companies.

As defined by the AAO, a “functional manager” must primarily “manage”, as opposed to “perform” the essential function and must be acting at a “senior level” within the organizational hierarchy or with respect to the function managed.  

Next page- Consideration #3 and Takeaway