Update from AILA Employer Immigration Compliance Conference: H-1B COMPLIANCE in the AGE of H-1B INVE
Updated: Aug 1
My colleague, business immigration attorney Danielle Atchison, and I are in Boston attending the AILA (America Immigration Lawyers Association) Employer Compliance and Worksite Enforcement Conference. I will be posting reports throughout the two days of the conference.
It has been clear from the start of the conference that employer immigration compliance issues will continue to be at the forefront of our practice. The first session covered employer issues triggered by the implementation of the April 2017 Buy American Hire American Executive Order (BAHA). BAHA directed government agencies to “propose new rules and issue new guidance, to supervise or revise previous rules and guidance…to protect the interests of Unites States workers in the administration of the immigration system, including through the prevention of fraud and abuse” and to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid beneficiaries.” DHS/USCIS, DOL, and the DOS have engaged in rule-making, policy making, and practical pushback against employers. This anti-employer pressure is truly unprecedented. So far, it has resulted in USCIS issuing an unreasonable number of RFEs (Requests for Evidence in 69% of all H-1B cases), mass H-1B denials, and the highest level of DHS on-site H-1B employer investigations.
Employees Should Be Aware of Increased H-1B DHS Investigations, On-Site Visits
Employers should be aware of a significant increase in investigative FDNS site visits from the DHS, where fraud officers are looking for possible technical and substantive H-1B violations. Many employers do not have an understanding of the risks presented by these on-site investigations, which are oftentimes unexpected. In some cases, we see that Legal and HR do not even know such visits have occurred. In addition, many employers do not understand that H-1B violations may be viewed by the government in the realm of H-1B “fraud.”
Employers Should Be Aware of H-1B DOL Investigations
We have seen the DOL pursuing employers for H-1B violations, with investigations ending in millions of dollars in fines. Interestingly, in one of the cases, the employer routinely paid more than the H-IB prevailing wage to its H-1B workers on an annual basis. However, the DOL determined that the annual amount was based on wages and end-of-year bonuses and therefore found that the employer was in violation because the monthly prorated wage was below the prevailing wage level.
What Does the Government Look For?
H-1B LCA CONDITIONS Violations: Location, Job Changes, Wage
Does the employer pay the H-1B employee as promised on the LCA (Labor Condition Application)? Specific attention is paid to the agreed LOCATION and WAGE. A typical violation is moving an employee from one worksite to another without first obtaining a new approved LCA and filing an amended H-1B petition with USCIS/DHS. DHS will look for evidence that the wage at a new location is higher but the employer continues to pay the lower prevailing wage for the initiation worksite location.
Another violation the government is looking for is employing the H-1B employee in a job classification inconsistent with the one on the LCA. For example, the LCA may say the worker is a programmer, but the employee has been promoted to a managerial role, and no new LCA/amended H-1B is on file.
Frequency of paying the required wage is important as well (end-of year bonus does not count). The employer may be exposed to having to pay back pay, significant fines, may be debarred from using the H-1B program in the future, and H-1B employees may be deemed to be out of status. We recommend employers review H-1B compliance procedures, update them, and conduct training for legal, HR, and managers with H-1B employees. We also recommend conducing internal LCA Public Access File audits, which may be helpful in identifying potential violations.
H-1B LCA PUBLIC ACCESS FILE Violations
Some employers may not know how to put together the LCA Public Access Files or fail to include all of the required documentation. The most frequent violation in this regard is failure to update the LCA Public Access File if there is a material change in employment, such as a new worksite or change in H-1B job classification caused by a promotion or other change of employment.
H-1B CONTRACTOR Violations
The DHS fraud investigators have come to our clients who use vendors to work on projects if some of the vendor’s workers are in the U.S. under H-1B status. These officers are looking for LCA violations by the vendor, whether the employee is at the location, wage level, and job classification specified on the LCA.
In addition, they investigate the control of employment of the H1B professional: is it truly controlled by the H-1B employer (vendor) or by the business where the project is being delivered. Our business clients are routinely asked to sign H-1B support letters requested by their vendors with H-1B employees. It is very important that these letters are reviewed by legal/business immigration attorneys to ensure the information provided is true and correct.
Another potential issue the DHS fraud investigators look for is whether the relationship is of the true contractor, or the H-1B workers may be reclassified as employees (with potential involvement from the DOL, we have seen to disastrous results for some employers).
EMPLOYERS NEED TO UPDATE COMPLIANCE PROCEDURES
Employers should review and update their H-1B compliance procedures. At a minimum, the following issues need to be addressed:
Any changes in H-1B employment – what needs to be done?
Need for a new LCA? Need to be filed with DOL?
Does a new/amended H-1B Petition need be filed with USCIS?
Internal LCA Audit procedures
Internal Contractor Audit procedures
Procedures for when the government is on-site or asks for H-1B information
H-1B/ LCA Compliance Training
Employers need to schedule H-1B/LCA Compliance Training and conduct H-1B Public Access Files internal audits to stay in compliance and mitigate potential risks of financial exposure and losing their international employees. Our trainings can be found HERE.
Business Immigration Lawyer
The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney.