Handling Compliance Issues for Foreign National Employees in the Modern Workforce: Update from AILA
We have recently returned from a weekend of learning about in-depth compliance issues for business immigration matters at AILA’s Conference on Worksite Enforcement and Compliance. My colleague, Mira Mdivani, recently posted an article about scrutiny in the H-1B program and about FDNS fraud investigations, which is a significant discussion. Another important discussion for employers to have surrounds handling compliance issues for foreign national employees in the modern workforce. How should employers tackle contractor status, third party placement, and movement of personnel outside of direct H-1B employment scenarios?
F-1 STEM OPT:
The F-1 program is run by Immigration and Customs Enforcement (ICE) and has very strict requirements that are changed and updated frequently. The program has become more limited over the years. It used to be okay for F-1 students to be self-employed during OPT or volunteer for companies to get experience in a field, but this changed several years ago via policy memo. Just a few months ago, the rules changed again with a website update!
Additionally, the F-1 STEM program has stricter requirements. Employers should read and understand all requirements under the STEM OPT training program. The I-983 should be drafted with specificity so that the Designated School Official (DSO) understands how your position relates to the foreign national’s degree program. The employer may not place the employee on a third party worksite. This employer should also update the DSO when required. Ultimately, with the rapidly changing rules (both through policy memos and simple website changes), employers should check with their immigration attorney in all employment scenarios for an F-1 employee to ensure compliance with the program rules.
The TN program is more “relaxed” regarding movement and employment status. However, TN applicants must come to US to perform pre-arranged services for the company. The employee may be a contractor for the U.S. entity, but s/he cannot be coming to the United States to be self-employed. If your company files for a TN or signs a TN visa application support letter, you should ensure that your relationship with the employee is spelled out and valid.
is important to also note that if you bring on H-1B contractors you are also in compliance with what is required of you in these scenarios. The auditors will come on-site and look at the employee’s work location. The auditors will check to see if the employee’s worksite matches the LCA. Some FDNS auditors have also been known to bring end client letters that you may have signed to confirm the employee’s activities at your site. It is important to make sure the letters you are signing have correct information and do not promise anything on behalf of your company (the non-H-1B employer). Make sure you are having your attorney review these letters before signing them and make sure you (and all individuals who may have contact with an auditor) are prepared for FDNS site visits for these contractors. Employers should ensure they are trained on compliance requirements for the H-1B program and DOL regulations to avoid fines and possible debarment from participating in the program.
Training 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.