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How to Avoid Costly H-1B Visa Compliance Mistakes in the Trump Era of Heightened Enforcement

The Trump administration has declared that "protecting American workers by combating fraud in our employment-based immigration programs is a priority."

As a result, the Department of Homeland Security, Department of Labor, and Department of Justice have announced plans to take a "more targeted approach" and aggressively audit H-1B employers and the work sites of H-1B employees.

Watch this webinar and find out how to protect your business and employees under the Trump enforcement policy.
Topics include:
✔What to expect from the Trump administration's newly announced H-1B policy of putting American workers first
✔How to avoid and address immigration discrimination claims by U.S. citizens and others
✔When employers are required to onboard and pay the new H-1B employee and the three steps you must undertake to effectively terminate employment of your H-1B workers.
✔How to document and support the salary offered for the H-1B position and avoid wage disputes and claims.
✔What are the recordkeeping requirements mandated by the Department of Labor (DOL) and how to maintain records that will survive a DOL audit.
✔How to deal wih company structure, employment conditions, and other changes that affect your H-1B worker's immigration status.
✔The timelines and deadlines you must observe to avoid loss of legal status and employment eligibility of your H-1B employee.
✔How to prepare for and survive government audits of your H-1B visa compliance program.

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How to Avoid Costly H-1B Visa Compliance Mistakes in the Trump Era of Heightened Enforcement

  1. 1. How to Avoid Costly H-1B Visa Compliance Mistakes in the Trump Era of Heightened Enforcement By Ann Massey Badmus
  2. 2. Type in the “Ask a Question” pane & send your questions. Questions will be answered during the presentation and during the Q & A session.
  3. 3. Ann Massey Badmus Attorney at Law → Helped thousands of clients gain legal immigration status in the U.S. since 1993 → Appeared as immigration expert on numerous local and national radio and TV shows → Author of Immigration Prescription book → Selected as Best Lawyers in Dallas for Immigration by D Magazine
  4. 4. Presidential Executive Order on Buy American and Hire American “Hire American. In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)).”
  5. 5. Presidential Executive Order on Buy American and Hire American • Directs DOL, DOJ, DHS, and DOS to review the current laws governing the H-1B program and suggest changes to prioritize the most skilled and highest paid positions. • Directs federal agencies to review all visa programs and take prompt action to crack down on fraud and abuse in order to protect U.S. workers. • Has no immediate impact on H-1Bs. Many of the changes to the H-1B program would require congressional action or rulemaking and would take many months or years.
  6. 6. U.S. Immigration & Citizenship Services (USCIS) Announcement – April 3, 2017 “Protecting American workers by combating fraud in our employment-based immigration programs is a priority for USCIS.” Targeted and unannounced worksite visits of H-1B employers and employees focused on: →Cases where USCIS cannot validate the employer’s basic business information through commercially available data, e.g. VIBE; →H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers; and →Employers petitioning for H-1B workers who work off-site at another company or organization’s location.
  7. 7. U.S. Immigration & Citizenship Services Reporting Fraud & Abuse Announcement Established an email address for reporting suspected H-1B fraud or abuse. Anyone (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) can email to report the name and address of the H-1B petitioning employer and work location, and a description of the alleged violation, abuse, or suspected fraud.
  8. 8. U.S. Immigration & Citizenship Services Reporting Fraud & Abuse Announcement Examples of fraud or abuse – • The H-1B worker is not or will not be paid the wage certified on the Labor Condition Application (LCA). • There is a wage disparity between H-1B workers and other workers performing the same or similar duties, particularly to the detriment of U.S. workers. • The H-1B worker is not performing the duties specified in the H-1B petition, including when the duties are at a higher level than the position description. • The H-1B worker has less experience than U.S. workers in similar positions in the same company
  9. 9. U.S. Department of Labor (DOL) Plans to Protect American Workers “Protect U.S. Workers from the H-1B program discrimination by providing greater transparency and oversight.” DOL plans to initiate investigations of H-1B program violators with greater coordination with other agencies and consider changes to the labor condition application to provide greater transparency
  10. 10. U.S. Department of Justice (DOJ) Plans to Protect American Workers “. Will not tolerate employers misusing the H-1B visa process to discriminate against U.S. workers” Immigrant and Employee Rights Section (IER) is responsible for enforcing anti-discrimination laws prohibiting citizenship, immigration status and national origin discrimination in hiring, firing or recruitment or referral for a fee.
  11. 11. Anti-Discrimination Rules • Citizenship/Immigration Status Discrimination • National Origin Discrimination • Retaliation or Intimidation • Unfair documentary practices migrant-and-employee-rights- section
  12. 12. Citizenship Status Discrimination Prohibits different treatment because of citizenship • “Preferring H-1B Visa holders” • “Preferring undocumented workers” • “U.S. citizen only hiring policy”
  13. 13. Enforcement and Investigation USCIS •Surprise Site Visit •Petition Denial/Revocation DOL • Audit • Fines/Debarment DOJ •Complaint Investigation •Damages
  14. 14. H-1B Application Process ETA9035 Labor Condition Application (LCA) I-129 Petition for Nonimmigrant Worker I-797 Approval Notice
  15. 15. 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 which establishes complexity of the job duties • Identify all work locations. Business • Track and identify number of H-1B employees. • Register for VIBE (recommended for small businesses) Documentation of the H-1B Petition
  16. 16. H-1B Dependent Employers 25 or fewer full-time equivalent (FTE) employees, including 8 or more H-1Bs 26-50 FTE employees, including 13 or more H-1Bs 51 or more FTE employees, including at least 15% H-1Bs
  17. 17. Critical timelines and deadlines
  18. 18. 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.
  19. 19. 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
  20. 20. Labor Condition Application Rules
  21. 21. 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.
  22. 22. Prevailing Wage Options Occupational Employment Statistics (OES) Survey – USDOL Prevailing Wage Determination (safe harbor) – Form ETA9141 Davis-Bacon, McNamara O’Hara Service Contract Act – Collective Bargaining Agreement (union contracts) Independent Survey – must meet specific DOL criteria
  23. 23. Choose Prevailing Wage: • Occupational Class • Skill Level – I,II,III,IV • Geographic area of intended employment
  24. 24. 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
  25. 25. Additional Labor Condition Rules for H-1B Dependent Employers Non-Displacement: Employer will not displace a similarly employed U.S. worker within 90 days before or after an H-1B visa petition is filed Secondary Inquiry: Employer must inquire of a secondary employer whether an H-1B will displace a similarly employed U.S. worker Recruitment: Employer will make good faith efforts to recruit U.S. workers Employer will offer the job to an equally or better qualified U.S. applicant
  26. 26. 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
  27. 27. Wage Deduction Rules Employers cannot require repayment of petition costs or related business expenses upon employee’s termination of employment.
  28. 28. 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
  29. 29. 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?
  30. 30. 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?
  31. 31. Recordkeeping Rules Public Access File - LCA and other documents available for public access within one day of filing the LCA (required)
  32. 32. 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)
  33. 33. 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.)
  34. 34. 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.)
  35. 35. 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.)
  36. 36. 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
  37. 37. 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
  38. 38. Displacement of U.S. Workers Super Penalty Violation A three year debarment and Civil Money Penalty (CMP) for each violation may be assessed where an employer (in a final determination) was found to have a willful violation, in the course of which a U.S. worker in an essentially equivalent job was laid off within 90 days before or after the filing of the H-1B petition. For current maximum penalty amounts, see (currently $51588 maximum)
  39. 39. How to Prepare for Government Audit of Your H-1B Records
  40. 40.  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
  41. 41. H-1B Worksite 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.)
  42. 42. 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
  43. 43. Public Access File for each occupation Appropriate position classification Correct prevailing wage/actual wage Documentation of employment changes Conducting an LCA Self-Audit
  44. 44. 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.)
  45. 45. 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.
  46. 46. Scheef & Stone, LLP 2600 Network Boulevard Suite 400 Frisco, Texas 75094 214-472-2161 Telephone Questions? Need more information and advice? Contact us at: