H-1B Mistakes to Avoid in 2012


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H-1B Mistakes to Avoid in 2012

  1. 1. 2/22/2012 H-1B Compliance: 9 Costly H-1B Visa Mistakes Employers Make and How to Avoid Them February 22, 2012 Ask Questions Anytime Use your chat pane to type and send your questions. Questions will be answered during the presentation and during the Q & A session.Presenters Angela M. Lopez has more than 8 years of experience representing and counseling employers in all aspects of immigration law. Ann M. Badmus has more than 18 years of experience providing strategic advice and counsel to employers on various issues of immigration law. 1
  2. 2. 2/22/2012 Webinar Agenda 1 H-1B Application Mistakes to Avoid 2 LCA Compliance Mistakes to Avoid 3 How To Document LCA Compliance 4 H-1B/LCA Internal Audits 5 DOL And DHS Investigations4 Copyright 2009 Agencies U.S. Department of Labor (USDOL) U.S. Citizenship and Immigration Service (USCIS) Wage and Hour Division (WHD) of USDOL Enforcement and Investigation • Surprise Site Visit USCIS • Petition Denial/Revocation • Audit USDOL • Fines/Debarment • Complaint Investigation WHD • Damages/Debarment 2
  3. 3. 2/22/2012 Penalties Civil Money Damages Back Wages Fringe Benefit Reimbursement Debarment Negative PublicityH-1B Application Mistakes to Avoid H-1B Application Process ETA9035 Labor Condition Application (LCA) I-129 H Petition I-797 Approval Notice 3
  4. 4. 2/22/2012Mistake # 1Failure to Provide Accurate Data Employer •Correct Name Information •FEIN Employment •Rate of pay Information •Locations Business •H-1B employees Information •Third party sitesMistake #2Failure to File on Time H-1B Numerical Limitations Extensions/ Renewals Amendments Labor Condition Application Mistakes to Avoid 4
  5. 5. 2/22/2012Mistake #3Failure to Pay the Required Wage 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 Resources Occupational Employment Statistics (OES) Survey USDOL Prevailing Wage Determination (safe harbor) Davis-Bacon, McNamara O’Hara Service Contract Act Collective Bargaining Agreement Independent Survey Prevailing Wage Choose the appropriate criteria •Occupational Class •Skill Level – I,II,III,IV •Geographic area of intended employment 5
  6. 6. 2/22/2012 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 factorsMistake #4Violating Wage Deduction Rules Employers may not deduct its business expenses from employee’s wages •ACWIA fee •Anti-Fraud fee •Attorney feeMistake #4Violating Wage Reduction Rules(cont.) Employers may not require repayment of petition costs or related business expenses upon employee’s termination of employment 6
  7. 7. 2/22/2012 Mistake #5 Failing to Pay Wages on Time 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. Mistake #6 - Benching 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 Mistake #7 - Failing to Properly Document Employment Termination Written notice of termination to employeeBona FideTermination Offer of return transportation toRequired depart the U.S. Written notice to USCIS withdrawing H-1B 7
  8. 8. 2/22/2012Mistake #8Failing to Document Changes New work locations in a different prevailing wage location Significant changes in job duties or working conditions Mergers & acquisitions or other corporate changesMistake #9 – Failing to MaintainRequired Documentation Public Access File - LCA and other documents available for public access within one day of filing the LCA FDNS Audit File for Surprise Site VisitsHow to Document LCA Compliance 8
  9. 9. 2/22/2012Public Access File Certified LCA (ETA9035) Rate of pay for the H-1B worker Actual wage memorandum Prevailing wage determination Proof of LCA postingPublic Access File (cont.) 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 (cont.) Post-employment changes must be documented: • 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 9
  10. 10. 2/22/2012Public Access File (cont.) Corporate organizational changes must be documented: • 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) LCA File Maintain for USDOL: • All documents included in public access file • 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 Retention Requirements Public access file must be maintained: •At employer’s principal place of business or at the employee’s worksite. •Throughout the term of the H-1B employee’s employment and one year after termination of employment. 10
  11. 11. 2/22/2012 H-1B/LCA Internal AuditsBenefits of an Internal Audit Identify correctable errors Ensure consistency and integrity of documents Prepare for USDOL or USCIS audit Reduce liability by showing good faithConducting an LCA Self-Audit •Public Access File for each occupation •Appropriate position classification •Correct prevailing wage/actual wage •Documentation of employment changes 11
  12. 12. 2/22/2012Conducting an LCA Self-Audit (cont.) • Documentation of organization changes • Payroll records reflect compliant start date • Appropriate notifications/amendments to USCIS • Verify audit results with attorney Preparing for USDOL and USCIS Audits & InvestigationsPreparing for an Audit/Site Visit 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 12
  13. 13. 2/22/2012 Preparing for an Audit/Site Visit Prepare FDNS Compliance File •Copy of H-1B petition •Employee W-2 forms, three months paystubs •Previous approval notices, current passport, current I- 94, educational documents for employee •Current job description, record/itinerary of off-site assignments •LCA if work location has changed •Evidence of termination of employment, if applicable Legal Notice . Facts of individual situations differ. The information provided here is general in nature and should not be relied upon for specific situations. Consult with an experienced immigration attorney to ensure complianceQuestions? Need More Information? Feel free to contact us.Badmus Law Firm, PLLC11325 Pegasus StreetSuite S-215Dallas, Texas 75238469-916-7900 Telephone469-916-7901 Facsimileimmigration@badmuslaw.comwww.badmuslaw.com Copyright 2009 13