h-1b mistakes to avoid in 2012
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Slide handout for webinar - 9 Costly H-1B Mistakes Employers Make and How to Avoid ThemTRANSCRIPT
2/22/2012
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H-1B Compliance:9 Costly H-1B Visa Mistakes Employers
Make and How to Avoid Them
February 22, 2012
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Questions will be answered during the presentation and during the Q & A session.
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.
Presenters
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Copyright 20094
Webinar Agenda
H-1B Application Mistakes to Avoid
LCA Compliance Mistakes to Avoid
H-1B/LCA Internal Audits
DOL And DHS Investigations
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2
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How To Document LCA Compliance
Agencies
U.S. Department of Labor (USDOL)
U.S. Citizenship and Immigration Service (USCIS)
Wage and Hour Division (WHD) of USDOL
Enforcement and Investigation
USCIS• Surprise Site Visit• Petition Denial/Revocation
USDOL• Audit• Fines/Debarment
WHD• Complaint Investigation• Damages/Debarment
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Penalties
Civil Money Damages
Back Wages
Fringe Benefit Reimbursement
Debarment
Negative Publicity
H-1B Application Mistakes to Avoid
H-1B Application Process
ETA9035Labor Condition Application (LCA)
I-129 H Petition
I-797 Approval Notice
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Mistake # 1Failure to Provide Accurate Data
•Correct Name•FEIN
EmployerInformation
•Rate of pay•Locations
Employment Information
•H-1B employees•Third party sites
Business Information
Mistake #2Failure to File on Time
H-1B Numerical Limitations
Extensions/ Renewals
Amendments
Labor Condition ApplicationMistakes to Avoid
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Mistake #3Failure to Pay the Required Wage
Employers must pay higher ofactual 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) SurveyUSDOL 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
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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
Mistake #4Violating Wage Deduction Rules
Employers may not deduct its business expenses from employee’s wages•ACWIA fee•Anti-Fraud fee •Attorney fee
Mistake #4Violating Wage Reduction Rules (cont.)
Employers may not require repayment of petition costs or related business expenses upon employee’s termination of employment
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Mistake #5Failing 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
Bona Fide Termination Required
Written notice to USCIS withdrawing H-1B
Offer of return transportation to depart the U.S.
Written notice of termination to employee
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Mistake #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 changes
Mistake #9 – Failing to Maintain Required 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 Visits
How to Document LCA Compliance
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Public Access File
Certified LCA (ETA9035)
Rate of pay for the H-1B worker
Actual wage memorandum
Prevailing wage determination
Proof of LCA posting
Public 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
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Public 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.
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H-1B/LCA Internal Audits
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
Conducting an LCA Self-Audit
•Public Access File for each occupation
•Appropriate position classification
•Correct prevailing wage/actual wage
•Documentation of employment changes
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Conducting 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 & Investigations
Preparing 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 locationIdentify company representative(s) to meet with auditorsEstablish procedures for reception and training
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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 compliance
Badmus Law Firm, PLLC11325 Pegasus StreetSuite S-215Dallas, Texas 75238
469-916-7900 Telephone
469-916-7901 Facsimile
www.badmuslaw.com
Copyright 2009
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