INSZoom Immigration Conference 2017 – The global landscape of immigration compliance: Current enforcement trends and global immigration program management
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The document summarizes key topics from a global immigration conference, including current enforcement trends, global immigration program management, and initiatives companies should take to improve compliance. It notes increased regulatory changes, focus on protecting local workforces, and collaboration among authorities. Companies are advised to implement comprehensive mobility frameworks, understand requirements and risks, monitor processes regularly through audits and dashboards, improve employee experience while ensuring compliance, and educate managers on immigration law changes rather than taking a policing approach.
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INSZoom Immigration Conference 2017 – The global landscape of immigration compliance: Current enforcement trends and global immigration program management
- 1. Day 2 : Global Immigration Conference The global landscape of immigration compliance: Current enforcement trends and global immigration program management
- 2. Immigration Compliance Current Enforcement Trends & Global Immigration Program Management
- 3. Changing Immigration Landscape… 1. Significant regulatory changes 2. Increased focus on “protecting” local workforce 3. Increased Enforcement – structured audits and random audits 4. Seek lot of data from employer / employee 5. Onus of being compliant with the Sponsor 6. Integration of immigration, tax, employment procedures – Collaboration among authorities 7. Increased monitoring of the impact of the regulation by authorities Which Means…
- 4. Increased Enforcement 1. Requirement of local market test 2. Increase in cost - application fees, documentation, minimum wages and processing time 3. Quota restrictions – Yearly , Project-wise Quotas , Company-wise 4. Increase in RFE’s and rejections 5. Audits – Yearly / Spot audits both at offices as well as at client locations
- 5. What Companies Should Implement 1. Comprehensive Mobility Framework 2. Spans all areas of mobility – Benefits, Immigration, Tax, Employment 3. Understand the span / requirement and assess risks 4. Identify “big ticket items” – take small steps with a wide vision 5. Detail out AS-IS & understand To-BE (Ask) 6. RASCI Matrix – Common Objective 7. Test the process 8. Monitor & Review regularly
- 6. Initiatives Company Should Take 1. Hand in the pie – know what is to be done and when 2. Collaborate as an organization 3. Conduct Internal / External Audits 4. Publish Dashboard & Track Coverage 5. Process integration a must – improve employee experience as well as compliance 6. Allow Tools to Talk to each other 7. Educate Managers / Employee – cannot be policing
- 7. Conclusion – What to Do to Monitor Compliance
- 8. Changes in U.S. Immigration Law Over Past Few Years • Amendments - On April 9, 2015, the USCIS Administration Appeals Office (AAO) issued a precedent decision called Matter of Simeio Solutions, LLC. which held that an H-1B employer must file an amended or new H-1B petition when moving a worker to a new work location that requires a new Labor Condition Application (LCA) to be filed or there’s a material change in the terms and conditions of employment. • H-4 Work Authorization - On February 25, 2015, USCIS published a final rule extending eligibility for employment authorization to certain H- 4 dependent spouses of H-1B nonimmigrants seeking employment-based Lawful Permanent Residence. The rule became effective on May 26, 2015. • Premium Processing Suspension - April 2017 USCIS temporarily suspended premium processing for all H-1B petitions. USCIS has since resumed H-1B Premium Processing for certain Cap-Exempt Petitions. • Increased Site visits – DOL and USCIS announced in April 2017 that they would increase targeted site visits. • More RFE’s on Level 1 Wages and Certain Computer Positions – March 2017 policy memo concluded level 1 designation covered under the computer programmer occupation classification, would not qualify as a specialty occupation position and officers should scrutinize the wage level on the labor condition application (LCA) to make sure wage levels correspond to job duties. • Scrutiny at Consulates – Foreign Affairs Manual (FAM) was updated to reflect April Executive Order “Buy American; Hire American” to “protect the interests of U.S. workers.” • Potential Changes to LCA – August 2017 DOL announcement with intent to revise LCA.
- 9. Latest Changes in other parts of the world Over Past Few Years • Brexit impact -. • Canada – Requirement of filing Labour Market Impact Assessment (LMIA) applications to a) advertise on Canada’s Job Bank; b) conduct at least two additional methods of recruitment; and c) use the Job Match service prior to filing an LMIA application will be extended to all Canadian provinces and territories • Australia - New changes with effect from 1st July 2017 • Singapore – increase in wages, market test.
- 11. Thank You
Editor's Notes
- U.S. Secretary of Labor Announcement to Confront Visa Fraud and Intent to Revise LCA In June, 2017, the U.S. Secretary of Labor Acosta announced actions to increase protections of U.S. workers by confronting entities committing visa fraud and abuse.[2] In his announcement, Secretary Acosta directed the DOL’s Employment and Training Administration (ETA) to develop proposed changes to the LCA. In accordance with this announcement, on August 3, 2017, the DOL published a 60-day notice in the Federal Register announcing its intent to revise the LCA for nonimmigrant workers.[3] This announcement included Proposed Form ETA 9035, Proposed Form ETA 9035CP Instructions, Proposed Form ETA 9035 Appendix A, and a Table of Changes to Form ETA 9035. Changes in the Revised LCA Secondary Employer The proposed LCA adds a question on whether the worker subject to the LCA will be placed with a secondary employer at the place of employment.[4] A secondary employer is another employer with whom LCA workers will be placed during the period of certification. The secondary employer must be disclosed in all circumstances where there are “indicia” of an employment relationship between the nonimmigrant worker and secondary employer.[5] The H-1B dependent employer must inquire as to whether the secondary employer has displaced or intends to displace a similarly employed U.S. worker in an essentially equivalent job. If the secondary employer displaces a similarly employed U.S. worker during the statutory period, the displacement will constitute a failure to comply with the terms of the LCA and the employer applicant may be subject to civil money penalties and debarment.[6] The DOL states that gathering this information will provide greater transparency to the public and U.S. workers about where workers under the LCA will work. Prevailing Wage Employers must attest to the DOL that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment, whichever is greater.[7] The new form streamlines the Prevailing Wage Information to allow employers to identify the source used for the prevailing wage and provides a breakdown of prevailing wage options. Indicating Basis for H-1B Exempt Worker H-1B dependent and willful violator employers are relieved from the additional obligations on the LCA with which they would otherwise be required to comply if they hire an “exempt” H-1B nonimmigrant.[8] An H-1B nonimmigrant is exempt if he or she receives $60,000 annual wages or higher or has received a master’s or higher degree (or its equivalent) in a specialty related to the intended H-1B employment. The new LCA form requires employers to indicate the statutory basis for the exemption of the H-1B worker on the LCA (rather than simply indicating whether the LCA is being used for H-1B petitions for exempt H-1B nonimmigrants). If the employer is exempt because the employee has a Master’s Degree or higher in a related specialty or both has a Master’s degree and is paid $60,000 or higher, the employer must complete the new Appendix A to the LCA. The appendix asks the employer to provide the number of workers that have attained a master’s degree or higher and the name of the accredited institution that awarded the degree, field of study in which the degree was awarded, and the date the degree was awarded. Impact of the LCA Modifications It is possible that this new requirement of indicating whether the employee will be placed at a secondary place of employment may lead to additional scrutiny for the petitions that indicate that the employee will be at a secondary employer. It is possible that this could also lead to added site visits for these employers that indicate the employee will be placed with a secondary employer. Finally, there could be additional risk of penalties for the petitioning employer with regards to the secondary employer’s compliance with the regulations. The requirement to indicate the field of study in which the degree was awarded appears to demonstrate the DOL may scrutinize whether the degree is related to the occupation for which the LCA is being filed noted in Part B of the LCA. Recent USCIS trends have shown that the government has been more highly analyzing whether the Beneficiary’s degree relates to the specialty occupation. [1] 8 CFR § 214.2(h)(4)(i)(B)(1). [2] https://www.dol.gov/newsroom/releases/opa/opa20170606. [3] https://www.foreignlaborcert.doleta.gov/news.cfm. [4] https://www.foreignlaborcert.doleta.gov/pdf/Table_of_Changes_Form_ETA_9035.pdf. [5] 20 CFR 655.738(d)(2)(ii) [6] 20 CFR 655.738 [7] https://www.dol.gov/whd/immigration/h1b.htm.
- U.S. Secretary of Labor Announcement to Confront Visa Fraud and Intent to Revise LCA In June, 2017, the U.S. Secretary of Labor Acosta announced actions to increase protections of U.S. workers by confronting entities committing visa fraud and abuse.[2] In his announcement, Secretary Acosta directed the DOL’s Employment and Training Administration (ETA) to develop proposed changes to the LCA. In accordance with this announcement, on August 3, 2017, the DOL published a 60-day notice in the Federal Register announcing its intent to revise the LCA for nonimmigrant workers.[3] This announcement included Proposed Form ETA 9035, Proposed Form ETA 9035CP Instructions, Proposed Form ETA 9035 Appendix A, and a Table of Changes to Form ETA 9035. Changes in the Revised LCA Secondary Employer The proposed LCA adds a question on whether the worker subject to the LCA will be placed with a secondary employer at the place of employment.[4] A secondary employer is another employer with whom LCA workers will be placed during the period of certification. The secondary employer must be disclosed in all circumstances where there are “indicia” of an employment relationship between the nonimmigrant worker and secondary employer.[5] The H-1B dependent employer must inquire as to whether the secondary employer has displaced or intends to displace a similarly employed U.S. worker in an essentially equivalent job. If the secondary employer displaces a similarly employed U.S. worker during the statutory period, the displacement will constitute a failure to comply with the terms of the LCA and the employer applicant may be subject to civil money penalties and debarment.[6] The DOL states that gathering this information will provide greater transparency to the public and U.S. workers about where workers under the LCA will work. Prevailing Wage Employers must attest to the DOL that they will pay wages to the H-1B nonimmigrant workers that are at least equal to the actual wage paid by the employer to other workers with similar experience and qualifications for the job in question, or the prevailing wage for the occupation in the area of intended employment, whichever is greater.[7] The new form streamlines the Prevailing Wage Information to allow employers to identify the source used for the prevailing wage and provides a breakdown of prevailing wage options. Indicating Basis for H-1B Exempt Worker H-1B dependent and willful violator employers are relieved from the additional obligations on the LCA with which they would otherwise be required to comply if they hire an “exempt” H-1B nonimmigrant.[8] An H-1B nonimmigrant is exempt if he or she receives $60,000 annual wages or higher or has received a master’s or higher degree (or its equivalent) in a specialty related to the intended H-1B employment. The new LCA form requires employers to indicate the statutory basis for the exemption of the H-1B worker on the LCA (rather than simply indicating whether the LCA is being used for H-1B petitions for exempt H-1B nonimmigrants). If the employer is exempt because the employee has a Master’s Degree or higher in a related specialty or both has a Master’s degree and is paid $60,000 or higher, the employer must complete the new Appendix A to the LCA. The appendix asks the employer to provide the number of workers that have attained a master’s degree or higher and the name of the accredited institution that awarded the degree, field of study in which the degree was awarded, and the date the degree was awarded. Impact of the LCA Modifications It is possible that this new requirement of indicating whether the employee will be placed at a secondary place of employment may lead to additional scrutiny for the petitions that indicate that the employee will be at a secondary employer. It is possible that this could also lead to added site visits for these employers that indicate the employee will be placed with a secondary employer. Finally, there could be additional risk of penalties for the petitioning employer with regards to the secondary employer’s compliance with the regulations. The requirement to indicate the field of study in which the degree was awarded appears to demonstrate the DOL may scrutinize whether the degree is related to the occupation for which the LCA is being filed noted in Part B of the LCA. Recent USCIS trends have shown that the government has been more highly analyzing whether the Beneficiary’s degree relates to the specialty occupation. [1] 8 CFR § 214.2(h)(4)(i)(B)(1). [2] https://www.dol.gov/newsroom/releases/opa/opa20170606. [3] https://www.foreignlaborcert.doleta.gov/news.cfm. [4] https://www.foreignlaborcert.doleta.gov/pdf/Table_of_Changes_Form_ETA_9035.pdf. [5] 20 CFR 655.738(d)(2)(ii) [6] 20 CFR 655.738 [7] https://www.dol.gov/whd/immigration/h1b.htm.