Slide handout for webinar - 9 Costly H-1B Mistakes Employers Make and How to Avoid Them

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.
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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 Investigations
4 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
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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
ETA9035
Labor Condition Application (LCA)
I-129 H Petition
I-797 Approval Notice
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Mistake # 1
Failure to Provide Accurate Data
Employer •Correct Name
Information •FEIN
Employment •Rate of pay
Information •Locations
Business •H-1B employees
Information •Third party sites
Mistake #2
Failure to File on Time
H-1B Numerical Limitations
Extensions/ Renewals
Amendments
Labor Condition Application
Mistakes to Avoid
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Mistake #3
Failure 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
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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 #4
Violating Wage Deduction Rules
Employers may not deduct its
business expenses from
employee’s wages
•ACWIA fee
•Anti-Fraud fee
•Attorney fee
Mistake #4
Violating 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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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
employee
Bona Fide
Termination Offer of return transportation to
Required depart the U.S.
Written notice to USCIS
withdrawing H-1B
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Mistake #8
Failing 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 location
Identify company representative(s) to
meet with auditors
Establish 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
Questions? Need More Information?
Feel free to contact us.
Badmus Law Firm, PLLC
11325 Pegasus Street
Suite S-215
Dallas, Texas 75238
469-916-7900 Telephone
469-916-7901 Facsimile
immigration@badmuslaw.com
www.badmuslaw.com
Copyright 2009
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