- Posts by Leo PengPrincipal
Leo Peng is the current chief representative and Office Managing Director of Foster Garvey's Beijing office. He has wide-ranging experiences representing both foreign investors in China and Chinese enterprises investing ...
We sincerely hope everyone is staying healthy. We understand that many organizations are adjusting their operations to respond to the challenges of the COVID-19 outbreak and for the protection of employees, including closing office facilities and directing employees to remotely work from home or another location. As a reminder, H-1B and E-3 authorization approved for foreign workers is specific to a number of issues including the employer, wage, work location and job duties.
In general, any location where an H-1B or E-3 employee is performing work should be covered by a U.S. Department of Labor certified Labor Condition Application (“LCA”), which includes posting and notice requirements. H-1B or E-3 employee whose home is within normal commuting distance of the normal place of employment should re-post the existing LCA (even though it does not specifically include their home address as a work location) for 10 consecutive business days to comply with notice and posting requirements, and the posting notices must be placed in the Public Access File when taken down.
Please contact the Foster Garvey Labor, Employment & Immigration team if you have any questions regarding this and other worksite-related obligations of an H-1B or E-3 employer.
H-1B cap filing season is fast approaching. U.S. employers who sponsor foreign workers for temporary H-1B work visas should start preparing now for the upcoming new H-1B cap electronic registration commencing this year on March 1, 2020.
What Is The H-1B Cap
The H-1B visa is the standard professional US work visa. There is a quota (or “cap”) each year on the number of new H-1B visas available. Specifically, there are 65,000 H-1B visas available annually with an additional 20,000 for US master’s degree holders. Individuals who have not previously held H-1B status are generally subject to this annual cap. Over the last 5+ years, this cap has been oversubscribed. When this occurs, the US Citizenship & Immigration Service (“USCIS”) opens the filing window for a specific period and accepts electronic registrations for new H-1Bs during that period. Presuming the number of applicants registered during that period exceeds the annual quota, then USCIS plans to run a random lottery to select the applicants who will be eligible for making the H-1B petition filing in the following 90 days.
International travelers from and to the United States may increasingly encounter an inspection of personal electronic devices conducted by U.S. Customs and Border Protection (“CBP”) officers. The selection may be for a variety of reasons, which may include that the traveler does not have the proper travel document or visa; the person has previously violated U.S. laws; or the person might be selected randomly for a search.
What is the International Entrepreneur Parole?
On January 17, 2017, the United States Department of Homeland Security (“DHS”) formally released the final rule to allow International Entrepreneurs to legally remain and work in the United States in a Parole status. The rule will become effective on July 16, 2017.
The long anticipated and new option for International Entrepreneurs was first introduced by U.S. Citizenship and Immigration Services (“USCIS”) in August 2016. The new rule, included in 8 CFR 212.19, is aimed at providing an alternative method for those entrepreneurs who can meet the requirements to enter and remain in the U.S. for start-up employment. The rule provides automatic work authorization for those international entrepreneurs who are paroled into the U.S. for a start-up business. The advantage of making the rule is that it doesn't need to be first approved by the U.S. Congress, but by USCIS. International entrepreneurs may be allowed to enter the United States more easily and stay for a longer period of time for up to 30 months initially.
China has been quite successful in encouraging foreign investments since the Sino-Foreign Equity Joint Venture Enterprise Law was promulgated in the beginning of the country’s economic reform in 1979.
With the passage of time, the Chinese government has recognized the limitations of the old case-by-case approval regime which is typically time-consuming and burdensome for foreign investors. The government has sought to test various reform measures as seen through the establishment of several Free Trade Zones and new rules that only applied within the boundaries of these Free Trade Zones.
To all you aspiring billionaires:
If you are attracted by the $1.5 billion Powerball jackpot taking place this Wednesday, you are among a great number of peers – but please don’t throw away your dream by taking your winning ticket outside the United States.
According to a little known U.S. law, "all persons are prohibited from importing into the United States from any foreign country any … lottery ticket, or any printed paper that may be used as a lottery ticket, or any advertisement of any lottery." Why? According to 17 U.S. Code Section 1305, the U.S. government views lottery tickets, among other listed items, as “immoral articles,” which are therefore banned from import into the country by any means of transportation.
Although foreigners are not barred from purchasing lottery tickets and claiming any winnings while inside the country, transporting lottery tickets beyond the border means that the winner will be unable to bring his or her ticket back into the U.S. to claim the prize. U.S. Customs and Border Officers have been warning cross-border travelers (who come to the U.S. intending to buy lottery tickets) that a ticket may be seized, confiscated and destroyed according to the law if a winner attempts reentry with the winning ticket.
So, whether you are a Canadian citizen or resident (who lives just minutes across the U.S. border) or a Chinese citizen (who is trying to hit the jackpot from across the ocean) – you have been warned. Do not gamble on your chance of winning the big one by carelessly taking your potentially winning ticket outside the United States.
On June 23, 2015, the State Council of the People’s Republic of China issued “the Opinions of the General Office of the State Council on Accelerating the Registration Reform of Consolidating Three Certificates into One Certificate.” The reform, aimed to simplify the previous bureaucratic delay and complication in business registration, has progressed and has since been implemented in China nationwide on October 1, 2015.
The so-called "Three-in-One Registration Reform" means that the business license, organization code certificate and tax registration certificate are combined into one integrated business license document: one certificate with one unified code.
The implementation of the "Three-in-One Registration” simplifies the longstanding business registration procedures, shortens the administrative processing time, facilitates a unified registration system, and is aimed to push and accelerate the continued development of the market-driven economy in China.
The stated targets of the reformation are to:
1) Simplify the required application materials. Applicants used to be required to submit the same or similar set of materials to Administration of Industry and Commerce Office, Administration of Quality and Technology Supervision Office and Tax Bureau. Now, applicants can expect to experience a one-window service, and submit only one set of application materials;
2) Reduce duplication in review process. Application materials will be mutually recognized by the above offices, and will be reviewed by one entity: Administration of Industry and Commerce Office. Other government agencies will not need to review again;
3) Reform the annual audit systems. For companies that have applied for the new business license, annual audits won’t be performed on the organization code certificates;
4) For companies that have applied for the new business license, the validity period of their organization code certificate will be made consistent with the new business license;
5) Eliminate the administrative fees associated with the previous three certificates;
The "Three-in-One Registration Reform" is expected to benefit new and existing business entities alike. Applicants only need to visit one government authority for submission of application and supporting materials. Time and transaction costs will likely be greatly reduced. One set of original application materials will improve work flow efficiency and streamline administration. The goal is to encourage investments and to link to the newly established enterprise credit system.
In the old registration system, companies are required to apply and maintain three separate certificates, which are the business license, organization code certificate and tax registration certificate. An applicant may be required to prepare and submit several sets of up to 30 supporting documents and to make at least eight trips to various government authorities to complete the required registration processes. The final registration approval would sometimes take several weeks. The implementation of "Three-in-One Registration Reform" makes the registration process much more seamless. Now, applicants can expect to make no more than two trips to a single location, and to submit one set of original application materials, which may include approximately thirteen items, half of which were previously required. The processing time has shortened to up to three days, with some locations reporting a two-day only process.
The "Three-in-One Registration Reform” is applicable to all forms of business entities except for self-employed individuals.
The reform will have a transition period. For enterprises that have already applied for the business license before the "Three-in-One Registration Reform," they should continue to use the old business license and other certificates. However, by the end of 2017, it is mandated that all enterprises must move to the new business license format with one unified code. (For certain enterprises in special industries that may have difficulties in obtaining new business licenses, the grace period is no later than 2020.)
Foster Garvey’s International practice group comprises a cross-disciplinary group of attorneys practicing in areas ranging from business transactions, immigration, maritime, government regulatory work, transportation and logistics and estate planning. The group members include bilingual and multicultural attorneys who are well-versed in handling these subject matters in a cross-border context. A number of attorneys have been actively practicing in the international arena since the early 1970s.