September 2015 Employment-Based Immigration & Compliance Newsletter

By September 21, 2015Immigration

Does the Affordable Care Act Apply to your Foreign Workforce?

On October 1st, thousands of foreign workers will begin employment in the U.S. in H-1B immigration status.  For some, this will be their first time working in the U.S.  They likely will have many questions for their co-workers and HR staff about taxes, Social Security, health care, etc.  They will almost certainly be curious about the Affordable Care Act (“ACA”), and how it applies to non-U.S. citizen workers.

Workers present in the U.S. in H-1B status, as well as workers present with many other types of immigration status, will be subject to the “individual mandate” of ACA.  The individual mandate makes the worker eligible to purchase a health insurance plan through the health exchange, but imposes a tax penalty on the individual if the individual and his dependent family members do not have such a health insurance plan.

Generally, all non-citizens who are “lawfully present” in the U.S., as defined by the ACA, are subject to the ACA’s individual mandate.  Some of the more common types of immigration statuses an employer might see are: a lawful permanent resident (“green card” holder), an H-1B visa holder, an L-visa holder, an F-1 visa holder, and an O-1 visa holder.  Each of these statuses represents someone who is lawfully present in the U.S. under the ACA.

Foreign workers are likely to have many questions when beginning work for the first time in the U.S.  It is extremely important that the employer have a designated individual who is educated on a variety of matters, including eligibility criteria for health insurance and the ACA, and particularly how these issues apply to foreign workers.  The more educated your foreign workers are about these issues, the better they can adjust to their new community and to their position with your organization.

If you have any questions about how the ACA or any other regulatory or employment issue might apply to your foreign workforce, please contact the immigration attorneys at Paule, Camazine, and Blumenthal.

The choice of a lawyer is an important decision and should not be based solely upon advertisements.

 


Are Start-Up Companies Prohibited from Sponsoring Foreign Workers for Employment?

Occasionally, new companies are formed because of the expectation that one or more key employees will be part of the new business.  At times, the key employee is not a U.S. citizen.  Since success of the new enterprise might be dependent on the key employee’s ability to stay and work in the U.S., it is particularly important to understand the challenges and opportunities inherent in the process of sponsoring non-U.S. citizens for valid immigration status.

There is a perception that a start-up company is prohibited from sponsoring a foreign worker for a visa, or that United States Citizenship and Immigration Services (USCIS) is predisposed to deny an application from a start-up.  Those perceptions are not necessarily accurate; however, start-ups should be particularly diligent in preparing a petition to sponsor a foreign worker for employment.

The primary consideration with respect to a start-up sponsoring a foreign worker is that USCIS will want evidence that the company is bona fide and that it has the financial capability and potential for growth to support the foreign worker in the occupation that is being reported on the petition.  USCIS wants to see that the start-up is a real operating entity, and not just a company that was created on paper for the purpose of allowing a foreign national to immigrate to the U.S.  Documents that could be submitted as evidence include: corporate organizational records; contracts already entered into; a lease for office space; pictures of the office and tangible assets of the company; paystubs and filed quarterly wage reports for current employees (if any have been filed yet); company bank account statements; and financial statements (if any are available) for the company.

USCIS wants to ensure that the prospective employee will have the support of other personnel so that he or she is able to perform the job duties described in the petition.  For example, when a start-up files a petition to obtain H-1B status, USCIS tends to examine whether the worker will be doing only “specialized occupation” duties, which are duties for which a bachelor’s degree in a specific field is required.  USCIS’s assumption is that because it is a new company, the prospective employee will be required to perform administrative tasks until the company is up and running.  It is important to show there are other workers already employed who will be doing the administrative tasks.  Documentation that could be submitted as evidence might include: organizational chart for the company; detailed job descriptions for each employee; paystubs for each worker; and filed quarterly wage reports (if any have been filed yet).

The current administration has expressed its interest in encouraging investment and entrepreneurship in the U.S., and the start-up industry is an important part of the U.S. economy.  Despite this, USCIS has not historically made it easy for start-up companies to hire the best available workers, some of whom may be foreign.  However, with appropriate advice and planning, even a start-up company can convince USCIS that it is a bona fide entity in need of sponsoring a foreign worker for immigration status.

If your start-up company is considering hiring a foreign worker, contact the immigration attorneys at Paule, Camazine and Blumenthal to discuss your options.

The choice of a lawyer is an important decision and should not be based solely upon advertisements.

 


 

 

Experienced, Quality Legal Representation for the Immigration Needs of Individuals and Businesses

Attorneys Melissa G. Nolan and Peter A. Gianino

Consistently, the value of our services exceeds the fee charged. We offer a fixed fee for most immigration matters, so you know the cost of your case right from the start. For an initial consultation, contact us at 314-727-2266. We accept your emails and respond to them promptly.

Melissa G. Nolan

Melissa G. Nolan

Melissa Nolan's practice involves immigration law, as well as estate and tax planning. From helping individual immigrants and businesses wanting to obtain visas for employees, to ensuring companies' I-9 forms are compliant through audits, Ms. Nolan is dedicated to assisting clients with the complexities of immigration. Melissa’s estate and tax planning practice includes the preparation of estate planning documents such as wills, revocable trusts, powers of attorney, and health care declarations.
Melissa G. Nolan

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