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Compliance with Work Visa Rules Requires Vigilance

Business Immigration

12/01/2015

By: Alla Nowowiejski

With the pace of technology quickening each day, the H-1B work visa program has played an increasingly important role for Gulf Coast employers seeking to meet their need for high-skilled professionals.

Moreover, many of the region’s industries, especially the petrochemical sector, have aging staffs and are nearing what some experts have dubbed a retirement bubble. The bottom line is that the number of high-skilled, foreign-born workers in the United States is likely to continue increasing throughout the next several years.

The H-1B program, a non-immigrant visa established under the Immigration and Nationality Act, allows U.S. employers to temporarily employ foreign workers in specialty occupations. The program has proven popular, though the rules have grown significantly more complex. It’s essential for employers to remain vigilant in ensuring they fulfill all work-visa requirements.

Employers are encouraged to be in regular contact with their immigration attorneys. Even between H-1B seasons, employers should stay abreast of updates and check in with their attorney when anything in a foreign national’s employment changes.

To remain in H-1B compliance, employers should remember CAP – call, arrange, prepare.

Call your immigration attorney when:

  • Changes occur with the title, job duties or salary of the foreign worker’s employment.
  • Any change in the location of employment. After a recent ruling, employers are now required to file amended petitions whenever an employee moves to a new location that was not specified in the initial petition or LCA.
  • Projects take longer than 10 days. Unless it’s a shorter visit, contact your attorney to confirm details of the assignment, location, and if any steps need to be taken prior to the employee’s visit.
  • There is a leave of absence. Likewise, call if there is a break between projects, and the employee will be in unproductive status to discuss the consequences, requirements and obligations.
  • Employment is terminated. Employers are required to take specific steps for a bona fide termination of employment of a foreign national. Additionally, company-wide layoffs could affect employers’ pending immigration matters. Contact your attorney to plan for handling those matters, as well as advising foreign workers.
  • Your company undergoes any corporate restructuring.

Arrange systems and coordinate with various departments to make sure compliance issues are handled ahead of time. Arrangements should cover several things.

  • Ensure H-1B public access files are complete for each H-1B worker. Those files were likely sent from your attorney and should be stored safely. Spend a few minutes each quarter making sure the files are complete, updated and have all the required signatures. Maintaining a complete file is vital. 
  • Include a regular review with your attorney on actual wage determination, safe harbor and prevailing wage sources to ensure compliance with LCA regulations.
  • Confirm human resources updates are made to all applicable employees’ Form I-9 once the H-1B came into effect on Oct. 1. Also, ensure the payroll department or company is aware of changes in visa classification so that any updates are made with applicable changes in tax withholdings.
  • Maintain complete payroll records for all H-1B workers and have them readily available.
  • Collaborate among immigration, corporate travel, human resources and other departments to enable your company’s immigration policies to run smoothly.
  • Organize an annual meeting with human resources managers, recruiting managers and your immigration attorney to review changes to your immigration policy and any other updates to plan accordingly.

Prepare for a worksite inspection at any time of day. Most site inspections are random, unannounced and meant to detect fraud. They’re nothing to be overwhelmed or overly concerned about. In most cases, inspections are not an indication of a problem. Nevertheless, your company should be prepared when a site visit occurs.

  • Have a plan in place and review it with all the affected members of your staff.
  • Speak to all personnel about the possibility of site visits. Make sure they know what to do and which staff members should be contacted when inspectors arrive.
  • Ask inspectors for identification and make a copy or write down names and credentials.
  • Advise your staff not to guess at responses to inspectors’ questions. It’s best to direct inspectors to a person within your organization who can answer questions or knows where to direct them.
  • If personnel will be interviewed during the visit, have a designated company contact present during the interview.
  • Have your foreign workers’ immigration files easily accessible and up to date.
  • Inspectors typically focus on three topics: whether an employee works at the site listed in the petition; whether the employee is paid an equal or greater salary than what is listed in the petition; and if the worker is employed by the employer listed in the petition.
  • Advise your attorney of any changes to foreign workers’ employment, including title, job duties, job location and salary.
  • Advise your attorney when a worksite inspection occurs and have a record of all the facts.

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Lugenbuhl associate Alla Nowowiejski (noh-voh-vee-ā-ski) focuses on U.S. immigration and nationality law. As leader of the firm’s business immigration section, she helps domestic and foreign businesses and investors in obtaining business-related visas for their workforce. Her expertise covers a wide range of issues, including assistance in obtaining Extraordinary Ability, Outstanding Researchers and Multinational Executives and Managers visas, EB-5 permanent residency, evaluating I-9 compliance in audit cases, designing human resource and immigration compliance policies and defending employers in Department of Labor and Department of Homeland Security administrative proceedings. More information about her experience is available here.

The content of this article is not intended to serve as an exhaustive review of the laws, statutes or issues related to immigration law and is not intended to provide legal advice. The opinions expressed through this article may not reflect the opinions of the firm, individual attorneys or clients.