PDF version What you will learn on the Webinar : 1 Who is responsible for attorney fees and application costs associated with the H-1B petition. 2 How to document and support the salary offered for the H-1B position and avoid wage disputes and claims. 3 When employers are required to onboard and pay the new H-1B employee. 4 How to deal wih company structure, employment conditions, and other changes that affect your H-1B worker's immigration status. 5 What are the recordkeeping requirements mandated by the Department of Labor (DOL) and how to maintain records that will survive a DOL audit. 6 The timelines and deadlines you must observe to avoid loss of legal status and employment eligibility of your H-1B employee. 7 The three steps you must undertake to effectively terminate employment of your H-1B workers. 8 How to prepare for and survive government audits of your H-1B visa compliance program, and much more ...

1. Employers: What You Must Know to
Safeguard Your Business From
Costly H-1B Visa Violations
Cowles & Thompson, PC

2. Presenters
Ann Massey Badmus
Attorney at Law
Thu T. Nguyen
Attorney at Law

3. Use your question or chat pane to
type & send your questions.
Questions will be answered during the presentation and during the Q & A session.

4. Enforcement and Investigation
USCIS
•Surprise Site Visit
•Petition Denial/Revocation
USDOL
• Audit
• Fines/Debarment
WHD
•Complaint Investigation
•Damages/Debarment

5. Penalties

7. H-1B Application Process
ETA9035
Labor
Condition
Application
(LCA)
I-129
Petition for
Nonimmigrant
Worker
I-797
Approval
Notice

8. 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)

9. 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

10. Critical timelines and deadlines

11. 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

12. 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.

13. H-1B Amended Petitions
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

14. Labor Condition Application Rules

15. 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.

16. 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

17. Choose Prevailing Wage:
• Occupational Class
• Skill Level – I,II,III,IV
• Geographic area of intended employment

18. 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

19. 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

20. Wage Deduction Rules
Employers cannot require repayment of petition
costs or related business expenses upon
employee’s termination of employment.

21. 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

22. 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?

23. 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?

24. Recordkeeping Rules

25.  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)

26. 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)

27. 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.)

28. 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.)

29. 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.)

30. 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

31. 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

32. How to Prepare for Government Audit of Your H-1B Records
Freedigitalphoto.net

33.  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

34. 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.)

35. 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

36. Public Access File for each occupation
Appropriate position classification
Correct prevailing wage/actual wage
Documentation of employment changes
Conducting an LCA Self-Audit

37. 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.)

39. 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

40. Cowles & Thompson, PC
901 Main Street
Suite 3900
Dallas, Texas 75202
214-672-2000 Telephone
immigration@cowlesthompson.com
www.ctimmigrationlaw.com
www.physicianimmigration.com
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