Global Immigration Blog : Immigration Lawyers & Attorneys : Jackson Lewis Law Firm : Labor Certification, Adjustment of Status

Speaking before the American public (and Snow White, the Seven Dwarfs, and Mickey Mouse at Disney World), President Barrack Obama announced an expansion of the Global Entry program, including the easing of B1/B2 tourist processing times at consular posts around the globe, among other things.

Global Entry is a U.S. Customs and Border Protection program that allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. The program is intended for frequent international travelers—mainly executives and managers for multinational corporations. Those approved for the program enjoy a streamlined admission process at U.S. airports after international travel into the United States. There is no minimum number of trips to qualify for the program.

By executive order, the President ordered the Secretaries of State and Department of Homeland Security to submit jointly a report describing the progress of achieving the goal of expanding Global Entry. The initiative seeks to ensure that the country remains secure while increasing travel and easing transactions costs (e.g., time during inspection) into the United States. The Jackson Lewis Global Immigration Group anticipates that the report will request finalization of regulation ending the current pilot program, making it permanent for additional U.S. international airports, and reducing average wait times at primary inspection to fewer than five minutes.

Multinational employers should contact their counsel to discuss how they may take advantage of the program for their frequent flyers—executives, management, and highly-skilled labor.
 

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Co-Author: Maggie Murphy

The DOL Administrative Review Board has decided that employers are responsible for paying wages to H-1B foreign nationals who—but for a delay in the Social Security Account enumeration and card issuance process—would be actively employed. The same rule likely will be applied to other nonimmigrant workers who experience delays in Social Security number processing.

The Board held the employer must pay the H-1B worker for her nonproductive activity during the time she was awaiting the delivery of her Social Security Card. Under 20 C.F.R. § 655.731(c)(7)(i), if the H-1B nonimmigrant is not performing work due to the employer’s requirement that she obtain a Social Security Card before commencing employment with the employer, the employer must pay the employee at the required wage for the occupation listed on the Labor Condition Application filed with the DOL. USDOL & Wirth v. University of Miami Sch. of Med., ARB Case No. 10-090, 10-093, ALJ Case No. 2009-LCA-026 (Dec. 20, 2011).

A Social Security Number is not required for employment verification (I-9) purposes, but many employers require it for payroll processing. H-1B employees are authorized to work upon lawful admission to the United States. Accordingly, to the extent that an employer requires a Social Security Number as part of payroll processing, it must be prepared to pay the employee if it elects to delay employment during the SSA enumeration process.

The DOL likely will apply this rule to other nonimmigrant categories, including the L-1, H-3, E-3, and O-1. Therefore, employers should consider practices that will allow these authorized workers to start employment while waiting for Social Security enumeration. Such practices include setting up a temporary payroll profile with a “dummy” number and updating the profile once the number is issued.

An employer that participates in E-Verify must verify its employees’ Social Security Numbers through the free federal program. Thus, such an employer needs the employee Social Security Numbers and should set a projected start date that allows enough time for Social Security processing.

Whatever the case, employers must now be mindful of payment responsibilities for foreign nationals sponsored to work for the employer in the U.S. Once the approved start date hits, so does the wage/payment requirement, requiring that employers who insist on Social Security Numbers from all employees take a more active role in tracking and advising employees how and when they should apply.
 

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