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Employers: What You Must Know to Safeguard Your Business From
Costly H-1B Visa Violations
Cowles & Thompson, PC
Presenters
Ann Massey BadmusAttorney at Law
Thu T. NguyenAttorney at Law
Use your question or chat pane to type & send your questions.
Questions will be answered during the presentation and during the Q & A session.
Enforcement and InvestigationUSCIS
•Surprise Site Visit
•Petition Denial/RevocationUSDOL
• Audit
• Fines/Debarment
WHD•Complaint Investigation
•Damages/Debarment
Penalties
H-1B Application Process
ETA9035Labor
Condition Application
(LCA)
I-129 Petition for
Nonimmigrant Worker
I-797Approval
Notice
Employer • Use the official corporate name as shown on corporate
documents.• Use the federal employer identification number for the paying
entity.
Employment• Prepare detailed job description.• Identify all work locations.
Business • Track and identify number of H-1B employees.• Register for VIBE (recommended for small businesses)
http://fedgov.dnb.com/webform
Validation Instrument for Business Enterprises (VIBE) Program
VIBE allows USCIS to electronically receive petitioning company information from D&B
Business activities
Financial standing, e.g. credit rating
Number of employees, both on-site and globally.
Relationships with other entities
Type of office, e.g. single office
Type of legal entity.
Company executives.
Date of establishment
Current physical address.
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Critical timelines and deadlines
February Prepare petition
April 1 Apply for
H-1B
April 7 Lottery cutoff
May 1 Acceptance or Rejection
Notices
July Decision Notices
2017 FY H-1B Cap Timeline
H-1B Renewal Timeline
Employer must submit renewal petition before current H-1B visa expires.
Employee can continue to work up to 240 days after H-1B visa expires as long as renewal petition filed timely.
Premium processing available
Recommended: Apply for six months before visa expires or request premium processing if H-1B approval is needed for driver’s license renewal, travel plans, or other reasons.
H - 1 B A m e n d e d Pe t i t i o n s
8 CFR 214.2 –amended petition required for any material changes.
You must file amended petition before changes occur.
Change in number of work hours, i.e. full-time to part-time
Change in duties from one specialty to another (significant changes)
Change in place of employment requiring a new LCA per 22 CFR 655.734
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Labor Condition Application Rules
Wage Requirements
Employers must pay higher of actual or prevailing wage rate, pay for nonproductive time, and offer benefits on the same basis as offered to U.S. workers.
Prevailing Wage Options
Occupational Employment Statistics (OES) Survey – www.flcdatacenter.com
USDOL Prevailing Wage Determination (safe harbor) – Form ETA9141
Davis-Bacon, McNamara O’Hara Service Contract Act – www.wdol.gov
Collective Bargaining Agreement (union contracts)
Independent Survey – must meet specific DOL criteria
Choose Prevailing Wage:• Occupational Class
• Skill Level – I,II,III,IV
• Geographic area of intended employment
Actual Wage
Documented wage paid to all other employees with similar experience and qualifications for the specific employment
• Experience and qualifications
• Education
• Job responsibility and function
• Specialized knowledge
• Legitimate business factors
Wage Deduction Rules
Employers may not deduct its business expenses from employee’s wages
• ACWIA fee - $750 (25 or fewer employees) or $1500 (more than 25 employees)
• Anti-Fraud fee - $500
• Attorney fee, if such deduction would reduce salary below prevailing or actual wage
Wage Deduction Rules
Employers cannot require repayment of petition costs or related business expenses upon employee’s termination of employment.
Employer’s obligation to pay begins when the employee is available to work but no later than 30 days after employee enters U.S. with H-1B visa OR 60 days after H-1B validity date if employee is already in U.S. in H-1B status.
When is Payment Due?
Case Reference: Gabriele Wirth, M.D. v. University of Miami
Employer must pay required wage for all nonproductive time related to employment caused by:
• Lack of work or client contract
• Lack of licensing
• Studying for licensing
• Employer required training
Payment is not required for truly voluntary
absences
When is Payment Due?
Written notice to USCIS withdrawing H-1B
Offer of return transportation to depart the U.S.
Written notice of termination to employee
To avoid payment, bona fide termination required
When is Payment Due?
Recordkeeping Rules
Public Access File - LCA and other
documents available for public access
within one day of filing the LCA (required)
FDNS Audit File for Surprise Site Visits
(recommended)
Certified LCA (ETA9035)
Rate of pay for the H-1B worker
Actual wage memorandum
Prevailing wage determination
Proof of LCA posting
Public Access File
(PAF)
Acknowledgement of receipt of
LCA by H-1B employee
Summary of benefits offered to
all workers
List of entities included as “single
employer”
Public Access File
(PAF)(cont.)
Changes to employment conditions must
be documented in the PAF, and must
include: Copy of new LCA for new location(s)
New rate of pay, actual wage memorandum,
proof of posting, employee acknowledgement
of LCA, prevailing wage determination
Salary adjustments, e.g. cost-of-living,
promotion to advanced level in same
occupations
Public Access File
(PAF)(cont.)
Company merger or sale must be documented
in the PAF: Sworn or notarized statement by successor
accepting all liabilities
List of H-1B workers transferred to successor
Each affected LCA number and effective date
Description of actual wage system
Successors employer identification number (EIN)
Public Access File
(PAF)(cont.)
Employers must keep the PAF:
At employer’s principal place of
business or at the employee’s worksite,
and
Throughout the term of the H-1B
employee’s employment and one year
after termination of employment.
PAF Retention Rules
Maintain for USDOL (not disclosed to
public): All documents included in public access file
LCA receipt acknowledgement from H-1B employment
Records showing wage rate for all other employees for the
specific employment at the specific place of employment
Any documentation that supports the prevailing wage
determination
Documentation on the offer of benefits
Documentation on working conditions
Labor Condition Application (LCA)
File
How to Prepare for Government Audit of Your H-1B Records
Freedigitalphoto.net
Thoroughly review the H-1B
petition
Conduct H-1B/LCA self-audit
Inform your client of potential for
site visit if employee works at
third-party location
Identify company
representative(s) to meet with
auditors
Establish procedures for
reception and training
Preparing for an Audit or Surprise Site Visit
Prepare Site Visit File
Copy of H-1B petition including
amended petitions
Employee W-2 forms, 3 months
paystubs
Previous approval notices, current
passport, current I-94, educational
documents for employee
Current job description,
record/itinerary of off-site
assignments
Evidence of termination of
employment, if applicable
Preparing for an Audit or Surprise Site Visit (cont.)
Benefits of an Internal Audit
Identify correctable errors
Ensure consistency and integrity of
documents
Prepare for USDOL or USCIS audit
Reduce liability by showing good faith
Public Access File for each occupation
Appropriate position classification
Correct prevailing wage/actual wage
Documentation of employment changes
Conducting an LCA Self-Audit
Documentation of organization changes
Payroll records reflect compliant start date
Appropriate notifications/amendments to USCIS
Verify audit results with attorney
Conducting an LCA Self-Audit (cont.)
Legal Notice
The information provided in this presentation is general in nature and should not be relied upon for specific situations. Because each case is different, you should consult with an experienced immigration attorney for your specific situation.
Cowles & Thompson, PC
Cowles & Thompson, PC
901 Main Street
Suite 3900
Dallas, Texas 75202
214-672-2000 Telephone
www.ctimmigrationlaw.com
www.physicianimmigration.com
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