California Apparel News

It’s no secret that the fashion industry is a labor-intensive business in California that is fueled by the availability of foreign workers in various sectors of the industry. In fact, the apparel business employs as many as 45,000 workers in Los Angeles County alone, many of them immigrants.

Given the importance of foreign workers, it’s crucial for California employers in the fashion industry to be very cautious in navigating U.S. immigration laws when they hire new employees. Here are 10 tips to consider for your organization:

1. The “B” tourist visa or a visa waiver (no visa required for those countries that qualify) can be used for conferences, business meetings, conventions and professional seminars in the U.S. The length of stay is a maximum of 90 days.
2. Work visas are required for foreign workers who are performing productive employment in the U.S., regardless of the source of the income (foreign or U.S.) and regardless of whether payment is being received or not. If the foreign worker will be performing any productive employment in the U.S., he/she may be able to obtain a temporary work visa if qualified under the categories that follow.
3. The “H-1B” work visa is the most well-known and widely used temporary work visa. The H-1B requirements for the foreign worker include a bachelor’s degree or its foreign equivalent, a specialized occupation that requires a university degree for entry into the occupation, and prevailing wage for the area of employment and the occupation as determined by the Department of Labor (DOL).
4. There are Labor Condition Application (LCA) requirements by the DOL that include attestations regarding state wages/working conditions; non-displacement of U.S. workers; and mandatory posting of the LCA notice, including job, title, salary, etc.
5. The “O-1” work visa is for foreign individuals with “extraordinary ability” in business, the arts and sciences, including designers and “super” executives. The O-1 visa criteria include honors and awards, articles/press about the foreign individual and his/her work, and evidence of his/her critical and leading roles for distinguished companies in the field.
6. Fashion models are eligible for both H-1B and O-1 visas. They do not need to be employed by one U.S. petitioner company for the O-1, but an agency or management company suffices. The H-1B for fashion models is filed with the DOL first and must indicate hourly and part-time work to avoid issues as well as proof that the position/service requires a fashion model of prominence and that the model is one of distinguished merit and ability.
7. The “L-1” work visa category was designed for multinational corporate groups to facilitate the transfer of executive and/or managerial personnel (L-1A) or personnel with “specialized knowledge” (L-1B). Requirements include the following: (A) The foreign worker must have been continuously employed abroad by a branch or corporate affiliate of the U.S. employer for at least one year in the preceding three years before the L-1 is filed; (B) The foreign enterprise and the U.S. organization to which the individual will be transferred are linked by common ownership and control to establish the requisite parent/subsidiary or affiliate relationship; and (C) The U.S. enterprise is in need of the services of an executive, managerial or specialized knowledge employee by virtue of the volume of its business operations and number of employees.
8. Section 274B of the Immigration and Nationality Act (INA) 8 U.S.C. § 1324b prohibits discrimination based on national origin or citizenship status. According to the statute, it’s an unfair immigration-related employment practice for a person or other entity to discriminate against any individual with respect to the hiring of the individual for employment—or the discharging of the individual—because of such individual’s national origin. The statute has certain exceptions.
9. The North American Free Trade Agreement (NAFTA) provides for the temporary entry into the U.S. of “professional workers” who are Canadian or Mexican citizens under the “TN” category. NAFTA contains a list of specific professions. An individual can qualify for TN-1 work authorization if he/she has a job offer from a U.S. employer in one of the listed professions and can demonstrate the prerequisite educational and/or employment background.
10. Finally, an employer should conduct an internal audit of the Form I-9 for each and every employee since the industry has been the subject of numerous Immigration Customs Enforcement (ICE) audits. Forms I-9 are required for all employees regardless of nationality and are a matter of establishing employer compliance with U.S. immigration laws/statutes.

Frida P. Glucoft is a partner in the Los Angeles office of Mitchell Silberberg & Knupp (MS&K) and chair of MS&K’s Immigration Practice Group. Janice K. Luo is an associate who splits her time between the firm’s Los Angeles and New York offices and is also a member of MS&K’s Immigration Practice Group. For more information, visit www.msk.com or contact Glucoft at fpg@msk.com or (310) 312-3151.