Spring Cleaning During H-1B Cap Season

If your company will be sponsoring any individuals for H-1B visas, now is a good time to review compliance in your immigration-related matters, specifically with Department of Labor (DOL) and U.S. Citizenship and Immigration Services (USCIS) filings.

Spring is just around the corner, so dust off those Public Access Folders and Form I-9 Files to ensure they are being maintained properly and discarded at the appropriate time.

H-1B Compliance

The start of cap season is a good time to review Public Access Files (PAFs) as well as the H-1B compliance policies and procedures. PAFs must be available for public inspection and should contain all relevant LCA information, including wages, benefits and proof of notifications (intent to file postings).

The Office of Fraud Detection and National Security (FDNS) conducts random and unannounced site visits to H-1B employers of all sizes across all industries. As part of the program, FDNS officers collect information during site visits to verify information pertaining to petitions that are pending and already approved. The $500 H-1B Fraud Prevention and Detection Fee, paid by all employers seeking an H-1B for initial employment or a change of employer, funds these efforts.

In light of these ongoing H-1B site visits, HR managers should ensure that all existing H-1B employees:

• Have a complete and updated PAF in place that is readily available for public inspection.
• Have the correct LCA in place.
• Have evidence that the LCA was posted at the job location where the employee is working.
• Are working in the job that is noted on the H-1B petition.
• Are being paid the higher of the actual or prevailing wage.
• Are working at the salary noted in the H-1B petition.
• Have not experienced any material changes to the job description noted in the H-1B petition.

It is also a good time to ensure that older PAFs are discarded if they are past the dates required for retention, and that all items in the PAF are properly executed and maintained. Company policies in terms of legal fees, filing fees and other areas should also be reviewed at this time to ensure compliance with the law.

Berardi Immigration Law drafts the core PAF documents for our H-1B cases and forwards the file to our clients for review and execution. It is ultimately the employer’s responsibility for “good housekeeping” of immigration records and to ensure compliance with H-1B policies.

Form I-9 Compliance

H-1B cap season is also a good time to review the company’s Form I-9 compliance and ensure that re-verifications are completed timely and correctly. It is good practice to build the re-verification process of Form I-9 each time a petition for extension is filed on behalf of a nonimmigrant employee.

Re-verifications are required for aliens authorized to work for a certain period of time in the U.S., and it’s not uncommon for employers to neglect this process. When an employee’s employment authorization document expires, the employer must reverify his or her employment authorization prior to the date of expiration using Section 3 of the I-9 form. The employee must present an acceptable document that shows either an extension of his or her initial employment authorization or a new employment authorization.

The 240-day extension rule applies to individuals whose I-129 extension application is still pending at the expiration of their original I-94. These instances should still be recorded. The M-274 Handbook for Employers (http://www.uscis.gov/sites/default/files/files/form/m-274.pdf) notes that employers should write “240-Day Ext.” and record the date the I-129 was submitted in the margin of Section 2. Then, Section 3 should be updated once a decision is received from USCIS or before the 240-day period ends, whichever comes first. USCIS also recommends retaining copies of the new I-129, proof of payment for filing the new I-129, and evidence that the new I-129 was mailed to USCIS as part of the Form I-9 record.

Please contact our attorneys today regarding H-1B visa issues and for strategies in helping your company maintain full compliance with your employment immigration matters.

 

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