The One Thing Employers Need to Know for This H-1B Season

February 22, 2018 | Henry M. Mascia | Corporate | Employment & Labor

The H-1B visa program has come under intense public scrutiny over the last year. In response to perceived abuses in the H-1B program, President Trump issued the “Buy American, Hire American” executive order, which directed the Department of Homeland Security (DHS) to advance policies to help ensure H-1B visas are awarded to only the most-skilled or highest-paid beneficiaries. The United States Citizenship and Immigration Services (USCIS) has doubled the annual number of unannounced site inspections conducted by the Fraud Detection and National Security Directorate (FDNSD) to ensure that the employee is working in accordance with the terms of the H-1B visa and that the employer has maintained the required documentation.

Employers nevertheless recognize the need to hire foreign nationals and frequently utilize the H-1B program to fill positions critical to their operation. Employers are required to pay the vast majority of the legal and filing fees associated with an H-1B petition and cannot pass those costs along to the employee. Despite this, many employers allow their employees to choose the immigration attorney who will prepare the employer’s application to sponsor the employee for an H-1B visa.

It is in employers’ best interest to choose the immigration attorney who will prepare the H-1B visa application. Employers can realize significant advantages by doing so. Here are a few:

Employers Have Ongoing Compliance Obligations after the H-1B Visa Is Approved

Employers have significant compliance obligations that exist before, during and after the foreign national’s employment in H-1B status. For example, the employee’s actual job duties must be consistent with the duties described in the H-1B petition, and if the employee’s job duties materially change after approval, the employer may be obligated to file an amended H-1B petition with a new labor conditions application. If, in this case, the FDNSD conducts an unannounced site inspection and the employer has not filed an amended H-1B petition, the FDNSD can issue significant fines. An immigration attorney who is chosen by, and has an ongoing relationship with, the employer stands in the best position to monitor developments that occur after the petition is approved and recommend a plan of action accordingly.

Immigration Regulations Require Employers to Retain Certain Documents

After the H-1B visa has been approved, immigration regulations also require employers to retain certain documents for inspection by USCIS during an onsite inspection. For example, employers must create and retain an internal memo describing the methodology the employer uses to determine employee salaries and a list of employee benefits. The memo must be signed an employer’s representative and must attest that the employer offers the same benefits to the foreign national working under an H-1B visa. The employer’s obligation to maintain certain H-1B documents continues long after the foreign national leaves the company. These document retention rules differ significantly from the document retention rules related to Form I-9, Employment Eligibility Verification and labor certifications for employment-based lawful permanent residence applications.

By choosing the same immigration attorney to handle the employer’s sponsorship applications, rather than a different immigration attorney for each individual employee, the employer gains a business partner who can coordinate and monitor the document retention policies to ensure that employers remain in compliance, avoiding the exposure to significant fines from USCIS.

Saving Time and Money

Choosing the same immigration attorney to handle the employer’s sponsorship applications also streamlines the application process, saving the employer and its staff time and money. A good immigration attorney will clearly define a procedure for the employer to follow and will provide templates for documents that must be modified for the particular application. Using the same procedures and templates for each application can reduce the amount of time the employer needs to invest for each application.

In addition, an attorney chosen by the employer can give candid advice about sponsorship. Employer sponsorship for an H-1B visa is usually in the foreign national employee’s best interest, but it is not always clear whether sponsorship is in the employer’s best interest. The most frequent sticking point for employers is the law’s requirement that employers pay H-1B employees a salary that is equal to or greater than prevailing wage. To determine the prevailing wage, an immigration attorney must choose the U.S. Department of Labor’s Standard Occupational Classification (SOC) Code that most closely resembles the employer’s job description. Selecting the proper SOC code is a balancing act. The immigration attorney must select a position with an SOC code that is likely to qualify as a “specialty occupation” but also has a corresponding prevailing wage that matches what the employer intends to pay the H-1B employee. An immigration attorney chosen by the employer is best-suited to select a position and corresponding prevailing wage that serves the employer’s interests.

Compliance Is Key in the Current Climate of Enforcement

The current enforcement climate multiplies the benefits an employer can realize by selecting the immigration attorney to file the H-1B petition. The Trump Administration has increased unannounced site inspections over the last year, and experts expect enforcement efforts to continue to increase this year. With the change in administration, USCIS has also announced new enforcement priorities, which include a targeted approach to detecting fraud. Some of the enforcement priorities affect larger employers in industries with a high proportion of H-1B workers. Others are likely to affect smaller employers. For example, USCIS is focusing its enforcement efforts on instances where it “cannot validate the employer’s basic business information through commercially available data.” An attorney chosen by the employer can best provide compliance advice before, during and after H-1B approval and recommend proactive steps to avoid or minimize financial exposure.

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