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Intel Contingent Worker Immigration Guidelines, Compliance Requirements, and Sponsor and Supplier Tools. Margie Jones, Intel Immigration Manager Bonnie Gibson, Intel Outside Immigration Counsel May 2014. Background: Legal Standard.
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Intel Contingent Worker Immigration Guidelines, Compliance Requirements, and Sponsor and Supplier Tools Margie Jones, Intel Immigration Manager Bonnie Gibson, Intel Outside Immigration Counsel May 2014
Background: Legal Standard • January 2010: US Citizenship and Immigration Service (“USCIS”) issued a policy interpretation restricting the circumstances where workers in H-1B visa status are legally eligible to work at customer sites. (“The H-1B Memo”). • Under the H-1B memo, an H-1B visa is proper only when the employer sponsoring the CW for a visa is also the direct supervisor of the foreign national employee seeking the visa. • Since 2010, concepts of the H-1B memo have extended to other visa types, including TN and L. • These developments required Intel to change its qualification criteria for Contingent Workers, leading to adoption of Intel CW Immigration Guidelines.
Intel Guidelines • No visa employees in Staff Augmentation or independent contractor positions. • For U.S. Staff Augmentation CW positions, all contingent workers must be “U.S. Workers”. “U. S. Worker” means a U.S. citizen, U.S. national (from Samoa or Northern Mariana Islands), Legal Permanent Resident (e.g., a green card holder), or a person granted asylum or refugee status by the U.S. government. • For outsourced CW roles, visa workers and other work-authorized foreign nationals can work in Intel, so long as the Supplier is the direct employer of the visa worker and other legal requirements are met. Suppliers cannot fill Outsourced CW roles with visa workers employed by another company. • Note that these obligations apply only when the outsourced CW works on site at Intel. Although the Supplier may have immigration compliance responsibilities where the work is performed off-site from Intel, that is not Intel’s concern. • For more information, see Supplemental Information starting at Slide Number 9.
What Do Intel Sponsors Need to Know to Help Suppliers Comply with Intel Guidelines? • Intel expects Suppliers to know and about and follow its Guidelines. • Best resource is supplier.intel.com/governance/contingent workforce/contingent workforce global policy • Materials for sponsors is available under Circuit “Other Policies” • Intel has outsourced its H-1B memo compliance efforts to its outside immigration counsel. Sponsors and Suppliers can reach out to counsel at intelcw@fragomen.com • In our experience over the last three years, many Suppliers do not know about these resources. Intel sponsors and Supplier managers can help facilitate compliance by referring Suppliers to supplier.intel.com. • Intel helps Suppliers meet particular legal obligations that arise from their assigning H-1B employees to Intel worksites by posting required notices and providing appropriate client letters in the immigration process. (Discussed in following slides.)
Labor Condition Application Posting • LCA POSTINGS: • LCA postings—US Labor Department document that identifies H-1B workers’ job location, title, and salary. • Must be posted where Intel employees can see the data. • For H-1B workers, Federal regulations require posting at CW’s actual worksite before the H-1B worker starts work • Rules explicitly apply to customer sites. • Suppliers can be fined or even lose their right to sponsor foreign national employees for failure to comply. • Intel Policy: LCA posting is part of an electronic process linked to Circuit and managed by Intel outside immigration counsel. • Intel has developed templates for posting requests. This process is mandatory. • Supplier accesses LCA posting questionnaire at intelcw@fragomen.com. • Supplier completes questionnaire with required information and emails to intelcw@fragomen.com. • Intel Counsel uploads supplier LCA information to Intel website designed to meet regulatory requirements • Counsel confirms posting back to supplier • Cost to Intel for these services is $50.00, billed to project cost code (required data on all posting requests). • At the discretion of the Business Unit, the costs can be absorbed or billed back to the Supplier.
Supplier Request for Intel “Client Letters” Where a Supplier places a CW at Intel, U. S. immigration authorities often require proof that the arrangement between Intel and the Supplier is a true outsourced situation and not “work for hire”. Suppliers may ask Intel Sponsors or Supplier Managers to provide a “client letter” to the U.S. government to provide evidence of the Supplier relationship; to demonstrate the project work is not “work for hire” ( i.e., the nature of the Supplier’s contract); and to acknowledgement Intel’s agreement to allow the CW to be on site at Intel to perform required services. Typically, Suppliers request client letters when the original visa is filed; when an extension is necessary; or when the government requests additional specific information during visa processing. PROCESS FOR CLIENT LETTERS • Responses to Supplier requests for CW client letters are now centralized with Intel Immigration U.S., through intelcw@fragomen.com. • Process for requesting letters of support and required information will be available at supplier.intel.com or by request to IntelCW@fragomen.com. • Intel sponsors should no longer be asked to sign Supplier client letters; all requests should be directed through above process. • Before providing client letter, Intel Immigration will verify CW assignment. If CW assignment cannot be verified, Intel outside immigration counsel will reach out to CW sponsor to confirm CW assignment. • Process applies only to green badge O/S CW’s working on site in the U.S. and does not affect existing process for invitation letters for business or privileged visitors, including after sales installation, services or maintenance See US invitation letters • Cost to Intel for these services is $50 per letter, billed to project cost code. • At the discretion of the Business Unit, the costs can be absorbed or billed back to the Supplier.
Special Rules for Bulk Posting/Client Letter Requests • H-1B visas are subject to cap—65,000 per year. • Visa category is oversubscribed. • To have a chance for visa, employer must apply on April 1 each year; even if visa granted, work is not authorized until following October 1. • As a result, Suppliers must anticipate Intel needs in advance and file prospective visa applications for any employee it wants to make available to Intel. • Because many of the applications filed will not result in an H-1B visa, Suppliers have to petition for more personnel than are needed, and, as a consequence, need Intel to post dozens of LCA’s in advance of filing. • Because cost centers and sponsors are not yet determined at the time of filing, Intel will work directly with Suppliers in advance of the April 1 filing to arrange for special handling, at Supplier cost.
USCIS rules Any supplier with questions about the immigration services memo on the change in supervision, management and control of CWs should be referred to this link.
“Work for Hire” vs. Outsourced Labor • The USCIS H-1B Memo underscores that a work visa is appropriate only when the employer filing for the visa can establish an employer-employee relationship that continues throughout the H-1B validity period. The employer-employee relationship is based on a factual analysis, not solely on payroll facts. Where the facts establish that Intel maintains employer controls over a CW, that is a labor for hire relationship and not true outsourcing. • Factors relevant to establishing employer-employee relationship, i.e., work for hire: • Intel has the right to control the manner and means by which the CW’s work is accomplished. • Intel manager directs, instructs, or assesses the performance of the CW directly. Where a Supplier supervisor is off-site, how is supervision accomplished without Intel giving direction to the CW? If supervision is off-site, how does the visa sponsor supervise (weekly calls, reporting back to main office routinely, site visits?) • If supervision is off-site, how does the visa sponsor employer (and not Intel) exercise control on a daily basis? • If Intel provides the tools needed to perform the CW duties, the relationship can look more like work for hire. • Does the visa sponsor employer hire, pay, and have the ability to fire the CW beneficiary? (For example, what would happen to the CW’s employment if Intel no longer wants/needs the CW?) • Compare characteristics of an Outsourced Relationship: • Outsourced CW’s remain under direction and control of Supplier so O/S CW roles are open to visa workers if the supplier is the CW’s direct employer/immigration sponsor and the supplier otherwise complies with U.S. immigration law. • O/S is work related to Intel’s core functions and outside of Intel’s expertise that can be fully performed by contingent workers without the supervision or direction of Intel employees • Intel often selects outsourcing suppliers with particular expertise • To qualify as O/S work, the same work is not performed by Intel blue badge employees • Intel does not give day-to-day work instructions and direction to O/S CW’s: all direction and management responsibility remains with the supplier • The outsourcing supplier selects the individual workers for assignment at Intel without input from Intel • The outsourcing supplier is responsible for salary, benefits, taxes, performance mgt., etc. • Examples : Café Services, Janitorial Services, Landscaping, Construction Projects, IT related projects where the Supplier has a deliverable beyond mere providing services.
Intel Risks of Non-Compliance • Direct legal risk of non-compliance with USCIS rules falls only on Intel Supplier. Supplier risks include: • Revocation of Visa • Fines and penalties • Debarment from future immigration sponsorship • Breach of Intel contract insofar as contract requires compliance with immigration laws • Intel’s risks are derivative and include: • Operational losses if mission critical CWs are subject to visa revocation or if Supplier cannot place personnel because it cannot obtain visas • Supplier’s non-compliance injures Intel’s own compliance reputation • Note: If Intel manager makes misrepresentation in letter of support for Supplier, the manager and possibly Intel could be prosecuted for material false statements under 18 USC 1000.
