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.

Cowles & Thompson, PC

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

Cowles & Thompson, PC

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

immigration@cowlesthompson.com

www.ctimmigrationlaw.com

www.physicianimmigration.com

Questions? Need more information and advice?

Contact us at: