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I-9 E-Verify Immigration Compliance

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  1. H-1B Site Visits Will Be Increasing

    By: Bruce R. Buchanan, Sebelist Buchanan Law PLLC

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    Due to a report by the Office of Inspector General (OIG) of the Department of Homeland Security (DHS), the USCIS plans to substantially increase their H-1B site visits. On October 27, 2017, the OIG issued a report - “USCIS Needs a Better Approach to Verify H-1B Visa Participants” where it made four recommendations, all which USCIS said it would strive to achieve.

    The OIG report made these findings:
    1. USCIS does not track their site visits as to the type of visa category the visit pertains;
    2. USCIS does not assess the information it collects from site visits;
    3. USCIS is to conduct site visits, that will target – a) employers where basic business information cannot be verified; b) employers who are H-1B dependent; and c) employers who place beneficiaries offsite;
    4. USCIS should deny new petitions for an employer, which has recurring violators;
    5. USCIS should revoke petitions, where site visits are unverified; and
    6. Immigration Officers are not all trained and site visits are not conducted on a uniform basis.
    OIG’s four recommendations are:
    1. USCIS should develop a process to collect and analyze all data collected from an H-1B site visit, including tracking the information and the program costs. USCIS also needs to analyze adjudicative actions for unverified site visits, and use the data collected to develop performance measures to assess the effectiveness of the site visit program;
    2. USCIS should identify data and assessments through the site visits and share it with external stakeholders;
    3. USCIS needs to identify where resources need to go for the site visit program, including adjusting the number of required site visits and time and effort spent; updating policies, procedures, and training so that site visits are conducted efficiently and uniformly; streamlining the employers visited and applying a risk-based approach; providing Immigration Officers a career path so that they do not leave; and
    4. USCIS should develop comprehensive policies to ensure that adjudicative action is prioritized on fraudulent or noncompliant petitions.
    Employers should be ready for more H-1B site visits. To be ready, an employer should:
    1. Have a system in place if USCIS shows up for site visit, which includes calling their attorney;
    2. Designate a contact or contacts to handle USCIS site visits;
    3. Ask for and record the credentials and contact information of the USCIS official;
    4. Keep copies of the public access files in a location where they can be accessed quickly;
    5. If unsure of an answer to a question posed by the USCIS official, ask for additional time and offer to follow-up; and
    6. At the end of the site visit, write down a detailed report, including questions USCIS asked.
    For more information on other immigration compliance topics I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
  2. Trump’s Extreme Vetting – L-1B Site Visits

    By: Bruce Buchanan, Sebelist Buchanan Law

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    As many immigration attorneys had anticipated, L-1B site visits by the USCIS and its Fraud Detection and National Security (FDNS) officers have recently begun. This appears to be another example of the Trump administration’s extreme vetting. These site visits have occurred while companies have pending L-1B visa extensions with the USCIS.

    An L-1B visa is a transfer of an employee with specialized knowledge from a foreign office of the company or its affiliate or subsidiary to a United States facility. It is dissimilar to the H-1B visa in that it is not subject to a cap nor any salary restrictions. But, it can only be utilized by multinational corporations. It is like an H-1B visa in that it is a vehicle for a company to employ a skilled foreign worker on a non-immigrant or temporary visa. An L-1B visa holder is eligible to be employed for up to five years.

    Historically, site visits have taken place on H-1B visas, especially where the H-1B visa holder was employed off-site. As a result of Trump’s April 2017 Executive Order “Buy American and Hire American”, the administration has stated it will use a “more targeted approach” to H-1B visits – meaning more site visits where there is possible fraud or abuse in the visa application.

    Some of the pending legislation in Congress to reform or change the H-1B visa also includes changes to the L-1B visa. Senator Chuck Grassley (R – Iowa) has made the L-1B visa a target for immigration reform. Thus, this seems in keeping with the administration and their friends in Congress grouping H-1B visas with L-1B visas.

    At this point, it is difficult to determine how widespread the L-1B site visits are; however, the fact that there are L-1B site visits while a petition is pending is a change from prior administrations. I would anticipate these L-1B site visits to increase as this appears to be part of the Trump administration’s extreme vetting. I will keep you updated as more information becomes available.
    Tags: fraud, h-1b, l-1b, trump, uscis Add / Edit Tags
  3. H-1B Employer Allowed to Deduct Attorney Fees in This Case

    By Bruce Buchanan, Sebelist Buchanan Law

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    A Department of Labor Administrative Law Judge (ALJ) ruled that an employer who deducted an H-1B visa holder’s attorney’s fees from the employee’s accrued vacation time did not violate the Immigration and Nationality Act (INA). Administrator, Wage and Hour Division, Department of Labor v. Woodmen of the World Life Insurance Society.

    Woodman Life hired Oscar Garcia initially under TN non-immigrant visa status. Later, Woodmen Life submitted an H-1B visa to the USCIS, which was approved. After approval, Woodmen Life and Garcia entered into an agreement whereby Garcia would repay certain expenses, including attorney’s fees, related to the H-1B petition. When Garcia’s employment ended, based upon Garcia’s resignation, he received a final paycheck which deducted $5,800 for attorney’s fees from $9,644 which was owed for accrued but unused vacation.

    The DOL Administrator filed suit against Woodmen Life alleging $4,575 was unlawfully deducted from Garcia’s wages. (DOL determined $1,225 for premium processing was included in the $5,800 and was an allowable expense to be paid by Garcia.) The Administrator stated the $4,575 deducted from Garcia’s last paycheck was not allowed because it took his wages below the required wage. Woodmen Life asserted Garcia’s final paycheck did not fall below the required wage because Garcia’s vacation pay was accrued and did not affect the required wage. Under Woodmen Life’s vacation policy, if an employee resigns or is terminated, “accrued but unpaid vacation leave” will be paid in the final paycheck. Furthermore, Woodmen Life stated it treated Garcia the same as other employees who owed money to the company, such as for a tuition repayment plan.

    Under the statute, employers are prohibited from seeking repayment of H-1B attorney’s fees and expenses from the required wage. However, the ALJ found in this case the $4,575 was not deducted from the required wage; rather, it was deducted from Garcia’s benefits. The ALJ found the statute allowed this type of deduction, especially where it was consistent with Woodmen Life’s policy of repayment for certain expenses from accrued but unused vacation time.
  4. Employer Not Obligated to Offer Return Airfare to Discharged H-1B Employee

    By Bruce Buchanan, Sebelist Buchanan Law

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    The U.S. Department of Labor’s Administrative Review Board (ARB) found a consulting company was not obligated to offer or pay a fired H-1B employee’s airfare to India, her home country, because she took no initiative to leave the United States. See Vinayagam v. Cronous Solutions (ARB Case No. 15-045 Feb. 14, 2017).

    Cronous, a consulting company, took several months to place Vinayagam. Eventually, it placed her with another company as a contract worker, where she worked for a few months before Cronous’ contract expired. Several months later, Cronous shut down its business and notified Vinayagam of her termination and her need to immediately leave the United States. Vinayagam stated she needed to be paid all the salary owed for her time she was “benched” (available for employment but not employed) and requested airfare to India. Cronous’ representative said he would check on that matter.

    Thereafter, Cronous sent a letter to the USCIS asking for revocation of its approval of the I-129 petition. Two months later, the USCIS did so. Cronous continued to pay Vinayagam until the revocation was approved.

    Vinayagam continued to reside in the United States for another 1 ½ years seeking other employment and unsuccessfully petitioning for a change of status to B-2 - visitor. She conceded she made no effort to leave the United States.

    Vinayagam filed a complaint with the Department of Labor (DOL) on underpayment of wages and a lawsuit in federal court. The parties resolved the lawsuit with Vinayagam receiving $45,000 in back pay for the period of February 2008 to February 2009. Vinayagam asserted at the DOL that she was entitled to back pay continuing until September 28, 2010 because Cronous did not offer or provide payment of return transportation costs upon her discharge.

    As most readers know, normally an employer who discharges an H-1B employee must offer to pay the employee’s airfare to his/her home country. Other conditions which employers must meet to affect a bona fide termination of an H-1B employee are express termination of employment relationship with the H-1B employee and notification of the USCIS of the termination in order that the I-129 petition can be revoked.

    The ARB determined Cronous had ended its obligation to Vinayagam by paying her wages through February 2009 and notifying her of her termination. It did not need to pay her costs home or offer to do so because Vinayagam voluntarily chose to remain in the United States without a valid visa, sought employment with other employers, and unsuccessfully sought to change to a B-2 visa.

    In this case, the employer was successful in not offering return transportation costs based on these particular facts. Your company may not be so lucky if it fails to offer the return transportation costs. Therefore, employers should always offer these return transportation costs when discharging an H-1B employee.
  5. Consulting Firm Settles with DOL Concerning H-1B Workers

    By: Bruce Buchanan, Sebelist Buchanan Law

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    U.S. Department of Labor Administrative Law Judge Larry S. Merck approved a settlement between consulting firm, Indus Group Inc., and the administrator of the DOL’s Wage and Hour Division, under which Indus will pay $214,785 in back wages to three H-1B computer programmer workers. Of the three employees, one is being paid $106,860 and the others - $57,760 and $50,160. The company has also agreed to pay $9,120 in penalties.

    According to the consent findings, the administrator found that in addition to owing back wages to the H-1B employees, the company did not cooperate in the investigation. However, Indus has now agreed to pay to pay the back wages as a “good faith resolution” of the dispute, according to the settlement.
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