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.

1. How to Avoid Costly H-1B
Visa Compliance Mistakes in
the Trump Era of Heightened
Enforcement
By Ann Massey Badmus

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. www.badmuslaw.com
www.immigrationMD.com
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. 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. 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. 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. 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 ReportH1BAbuse@uscis.dhs.gov
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. 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. 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. 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. Anti-Discrimination
Rules
• Citizenship/Immigration
Status Discrimination
• National Origin Discrimination
• Retaliation or Intimidation
• Unfair documentary practices
https://www.justice.gov/crt/im
migrant-and-employee-rights-
section

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. Enforcement and Investigation
USCIS
•Surprise Site Visit
•Petition Denial/Revocation
DOL
• Audit
• Fines/Debarment
DOJ
•Complaint
Investigation
•Damages

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

16. 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

17. 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

18. Critical timelines and
deadlines

19. 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.

20. 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

21. Labor Condition Application Rules

22. 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.

23. 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

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

25. 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

26. 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

27. 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

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

29. 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

30. 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?

31. 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?

32. Recordkeeping Rules
Public Access File - LCA and
other documents available for
public access within one day
of filing the LCA (required)

33. 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)

34. 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.)

35. 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.)

36. 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.)

37. 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

38. 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

39. 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
https://www.dol.gov/whd/immigration/h1b.htm#cmp
(currently $51588 maximum)

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

41.  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

42. 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.)

43. 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

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

45. 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.)

47. 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.

48. Scheef & Stone, LLP
2600 Network Boulevard
Suite 400
Frisco, Texas 75094
214-472-2161 Telephone
ann.badmus@solidcounsel.com
www.badmuslaw.com
www.physicianimmigration.com
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