Information and Tools for Employers
More topics coming soon
- Compliance issues in case of company spin off
H-1B LCA compliance
H-1B Employers And Increasing Site InspectionsThe USCIS’s Office of Fraud Detection and National Security (FDNS) recently reviewed the H-1B program. FDNS may conduct unannounced physical site inspections of residences and places of employment and hold interviews.The visits may occur at the principal place of business and/or at the H-1B non immigrant work location as indicated on the 1-29 petition. USCIS may use a variety of ways to verify namely- review public records and information by written correspondence, Internet, facsimile or other electronic transmission, or telephone. Although most H-1B site visits have occurred post adjudication, a USCIS adjudications officer may refer an H1-B petition to the FDNS for a site visit prior to the completion of an adjudication. This may be especially true with H1-B extensions with the same H-1B employer. The USCIS Vermont Service Center has transferred approximately 20,000 cases to FDNS as part of the H-1B assessment program USCIS California Service Center has also forwarded a sizable number of cases for review. Hence the visits by the FDNS officers may increase.
Some general guidelines for the employers who are employing H-1B employees:
- Employers should request the name, title and contact information for the site investigator, as there are multiple agencies that may audit H-1B program.
- The employer may request the presence of the attorney. If the attorney is not immediately available the site inspection must be terminated.
- The employers should not speak with the government agents or contractors without a witness.
- Employers should retain complete records of public access file. It should be reviewed prior to meeting with the FDNS officer.
- If the beneficiary has been placed at a client site not controlled by the employer, the employer should notify the end user about the current H-1B assessment program and the possibility of a site visit.
- The end user should be made aware of the identity of the H-1B employer and review the terms of the agreement.
- Generally the employer/or the end user should comply with the reasonable requests of the FDNS officer.However, if the FDNS officer requests to access secure areas, an employer may suggest less sensitive areas to conduct interviews with the beneficiary.The employer should explain if it has strict policies against tours and photographs of the sensitive areas.
- The employer should not guess about any information and should indicate to the FDNS officer that he will follow up to provide accurate information.
- The record should be kept of any documentation provided to the FDNS officer during the site visit.
Compliance Issues for H-1B Employers in a Bad EconomyWith the Downturn of IT due to the economy turmoil and critical H-1B investigations and immigration raids around the country, it is suggested that it is worth spending some of the slow time in self auditing your files for compliance and reviewing the current workforce to adapt to the needs.
If you are facing reduction in work and the bench period is being extended, you must take appropriate measures. If the change in business is temporary and you expect your business to pick up in few months, it is not good to lay off your employees. One of the options to retain your good employees without hurting their immigration status and also to reduce your burden of payroll is to amend the previously approved H-1B for part time or flexible hours H-1B. This creates benefits for both employer and the employee. The employee is able to maintain his status and able to look for another part or full time job if needed. Or he uses his time to wind up his affairs in US such as dependents' education, job, selling cars or other property. On the other hand the employer is able to retain his workforce until the economy improves.
Here are the few reminders for employers to stay in compliance.
- Must pay your H-1B workers for Bench time.
- Must have approved LCA for each location H-1B worker is placed at and must satisfy the posting requirements.
- Must have written documentation that your H-1B worker's actual employment location(Client site) did not displace US workers( if had layoffs), or had strike or lockout.
- Must pay H-1B employee return transportation to his country if his employment is terminated.
- Must amend H-1B petition if there are material changes in employment terms and conditions such as decrease in hours, salary and benefits, change in job duties or employment location.
- Must notify USCIS to revoke the petition if H-1B employment terminated/laid off.