Is an Amended H-1B Petition Required When the Worksite Changes?

September 7, 2012

The question of whether a new or amended H-1B petition is required when the beneficiary’s worksite changes has been raised with USCIS at the October 5, 2011 stakeholders meeting (AILA Doc. No. 11100570) and again at the March 29, 2012 stakeholders meeting (AILA Doc. No. 12033045). AILA supports the position taken in the October 23, 2003, Efren Hernandez letter, that an amended Form I-129 is not needed for geographic moves so long as the following conditions are met:

1) an LCA has been filed and certified for the new location prior to the employee’s move to the new location;

2) the LCA has been posted in accordance with DOL regulations;

3) other wage and hour obligations are met; and

4) there are no other material changes to the terms and conditions of employment (AILA Doc. No. 03112118).

In addition, 20 CFR §655.735 provides guidance on short-term placement of H-1B nonimmigrants at places of employment within and outside the areas of intended employment listed on the LCA.

At the March 29, 2012 meeting, USCIS stated that it is continuing to review and develop new guidance on amended H-1B petitions as part of its overall policy review and that it may issue additional guidance on this issue in the USCIS Policy Manual. However, the California Service Center (CSC) appears to be taking the position that an amended petition must be filed for a geographic job location change. At a CSC Stakeholder meeting held on August 10, 2011, the CSC stated that 8 CFR §214.2 requires an amended or new petition to reflect material changes in the terms and conditions of an H-1B petition. Generally, it is the position of the CSC that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition. (AILA Doc. No. 11093037).

Practitioners are reporting site audits and revocation of petitions where USCIS could not find the beneficiary of the petition at the worksite listed in the initial petition. Despite documentation of an LCA for the beneficiary’s new worksite, as well as additional documentation supporting the worksite change, the CSC nevertheless has revoked the H-1B petition stating that an amended petition must be filed because the new worksite was not shown on the original petition.

Until USCIS headquarters issues a definitive answer as to whether a new or amended petition is needed for a change in location, MVP Law Group will continue to exercise caution by advising their clients to file a new LCA and amended petition prior to the geographic relocation of the employee.

Source of Information: "AILA InfoNet Doc. No. 12083048 (posted Aug. 30, 2012)"

USCIS Office of Fraud Detection & National Security Commence H-1B Assessment Program: Site Visits

October 5, 2009

In an effort to detect, deter and combat immigration benefit fraud and strengthen efforts in ensuring benefits are not granted to those who threaten national security or public safety, the United States Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) have commenced an assessment of the H-1B nonimmigrant visa program. As part of the assessment program, FDNS officers collect information during site visits to verify information pertaining to petitions that are pending and already approved.

The FDNS consists of approximately 650 individuals, including Immigration Officers, Intelligence Research Specialists, and Analysts located in field offices throughout the United States. FDNS has also contracted with multiple private investigation firms to conduct site visits on behalf of FDNS.

These visits by FDNS officers are unannounced and may take place at the employer’s principal place of business and/or the H-1B non-immigrant’s work location (end client site). FDNS Officers do not need a subpoena for the site visit because the regulations governing the filing of immigration petitions allow the government to take testimony and conduct broad investigations relating to the petitions. However, USCIS will provide an opportunity for an Employer to address any adverse or derogatory information that may result from these types of site visits. An employer may request that counsel be present; however FDNS will not reschedule the visit just for counsel, therefore, if requested, counsel can be present via telephone for the site visit.

During a site visit, the FDNS Officer will ask questions to verify information contained in a specific immigration petition. They will have a copy of the petition, ask to speak with the employer’s representative (the one who signs immigration forms), and will ask questions regarding the employer’s business, locations, number of employees, and the number of H-1B petitions previously filed. They may also request to review company’s tax returns, quarterly wage reports, among other documents to verify that the Employer is a bona fide business entity. Additionally, the Officer may ask questions regarding the H-1B non-immigrant’s title, job duties, work location and salary; and may ask to review the non-immigrant’s most recent pay stub and Form W-2. FDNS Officers may also inquire about the Employer’s Immigration Counsel.

After interviewing the employer’s representative, the FDNS Officer may request a tour of the facility, take photographs, and may even request to interview the H-1B beneficiary. The Officer will then ask the beneficiary similar questions to the ones asked of the Employer’s representative: the beneficiary’s job title, job duties, responsibilities, employment dates, position location, requirements for the position, academic background, previous employment experience, current address, and information about family members (husband/wife and/or children). Additionally, the Officer may ask a colleague of the beneficiary similar questions about the beneficiary.

Typically, these H-1B site visits last for less than an hour after the walk thru, documentation gathering and interviews are complete.

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2009 – The Year of Immigration Compliance

March 18, 2009

Tighter government oversight over the H-1B visa program and permanent employment-based immigration expected.

On October 8, 2008, the U.S. Citizenship & Immigration Service (USCIS) released a report that 13% of all H-1B petitions filed on behalf of U.S. employers are fraudulent. The same report also stated that another 7% of those petitions contain some sort of technical violation. The report’s conclusion states: “Given the significant vulnerability, USCIS is making procedural changes, which will be described in a forthcoming document.”

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Future Rule Tightening by the U.S. Department of Labor

August 14, 2008

The U.S. immigration system is constantly changing. At a recent stakeholders meeting, the U.S. Department of Labor (DOL) announced several upcoming changes to the Labor Certification and Labor Condition Application process.

Expect More PERM Audits
The DOL announced that with Backlog Elimination Centers (BECs) closing, the DOL will now be now focusing its resources on parts of the PERM regulations that were not focused on earlier, including audits and supervised recruitment. Since April 2007, Immigration attorneys have seen a spike in PERM audits by the DOL. It looks like Audits are going to be commonplace from now on. DOL announced that both targeted and random PERM audits will continue. The DOL stated that the 60 to 90 day timeframe discussed in the preamble to the PERM regulation is not binding and is irrelevant if there is an audit. Therefore, once a case has gone into audit, it will most likely not be adjudicated within the 60 to 90 timeframe.

As of July 15th, the DOL was working on cases that have not been audited with a priority date of April 2008. Currently, there is only one Audit queue. The DOL does not maintain separate queues for random and targeted audits. As of Mid July, DOL was working on audited cases with Priority dates of March 2007.

H-1B LCAs will be scrutinized more closely
The DOL also stated that Labor Condition Applications (LCAs) associated with the H-1B filing process will be scrutinized more closely beginning this fall. Currently LCAs are approved within a matter of seconds once they are applied for through the DOL’s online application system. The DOL expects such applications to take up to 7 days to be reviewed and certified by the DOL. If alternate wage surveys are submitted with the LCAs, the certification times would be even longer. Therefore, the days of starting a new H-1B petition in a couple of days pursuant to a change in employer will soon come to an end.

The fine for "Benching" H-1B employees

August 13, 2008

The Immigration and Nationality Act (INA) permits employers to employ nonimmigrant alien workers in H-1B specialty occupations in the United States. In order to employ H-1B non-immigrants, an employer must obtain certification from the United States Department of Labor (DOL) after filing a Labor Condition Application (LCA). The LCA stipulates the wage levels and working conditions that the employer guarantees for the H-1B non-immigrants. After the employer received a certified LCA, the employer then petitions The United States Citizenship and Immigration Services (USCIS) for an H-1B visa on behalf of the nonimmigrant. An employer violates the INA if, for employment-related reasons, it fails to pay an H-1B nonimmigrant worker who is in "nonproductive status." Employment-related nonproductive status results from factors such as lack of available work for the non-immigrant or a non-immigrant's lack of a permit or license. Furthermore, an employer violates the INA when it deducts from a nonimmigrant's wages filing fees that INS collects from the employer to process the H-1B petition.

In a recent decision, Rajan v. International Business Solutions, Ltd.,
03-104 (ARB 8/31/04), the U.S. Department of Labor’s Administrative Review Board (ARB) examined some important H-1B related issues relating to the LCA. In particular, the ARB benching in the context of the LCA, the validity of a beneficiary’s employment start and end dates and payment of H-1B fees by an H-1B beneficiary.

Case Background
International Business Solutions, Ltd (IBS), hired Ms. Rajan in a specialty occupation on an H-1B. IBS subsequently discharged Ms. Rajan after it failed to pay her salary while she was in nonproductive status (i.e., she was on “bench”). Ms. Rajan complained to theDOL’s Wage and Hour Division seeking back wages and reimbursement of $1,500 she paid to IBS, at its request, for the H-1B filing fee. After an investigation, the DOL found that IBS had violated the INA by failing to post notice of the LCA and failing properly to establish the prevailing wage rate. The DOL’s administrator did not make findings regarding Ms. Rajan's complaint that IBS failed to pay her wages and charged her for the H-1B filing fee. Ms. Rajan then requested a hearing before an Administrative Law Judge (ALJ) who found that IBS violated the INA by failing to compensate her while in nonproductive status and by assessing her money to pay the H-1B filing fee. The ALJ accordingly ordered IBS to pay Ms. Rajan back wages and to reimburse her for the money she had paid IBS for the fee. The ALJ remanded the case to the Administrator to determine whether to impose a civil money penalty for the filing fee violation. IBS petitioned for review of the ALJ's decision.

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UPDATE: USCIS Offers Premium Processing for I-140s on a Limited Basis

June 12, 2008

As I had recently mentioned in another one of my other recent blog postings, the American Immigration Lawyers Association (AILA) had reported that the U.S. Citizenship and Immigration Service (USCIS) was going to resume premium processing of I-140 applications for certain individuals. Today, the USCIS released an update and fact sheet addressing this issue.

In its update, the USCIS confirms that on June 16, 2008 it will make available its Premium Processing Service for individuals who are on H-1B status and are reaching the end of their sixth year on H-1B and have I-140 petitions (Immigrant Petition for Alien Worker) filed on their behalf (in our previous report we had reported that USCIS officials were going to open up premium processing on July 16, 2008).

Under the Premium Processing Program, the USCIS guarantees that petitioners would get a response (i.e., approval, denial, request for additional evidence, etc.) within 15 calendar days. This is really good news for individuals running our of time on H-1B status as according to the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), and H-1B nonimmigrant is permitted to extend their status for three years beyond the six year limit provided that the alien is the beneficiary of an approved I-140 petition and an employment-based preference visa is not available for that individual.

Click here to view the USCIS Update on I-140 Premium Processing.

Maintaining an H1B Audit (Public Access) File

June 11, 2008

The H-1B , is an employment based non-immigrant visa, that enables United States employers to seek highly skilled foreigner workers from around the world to increase productivity and develop new innovations within their fields which ultimately helps the U.S. economy. In return, the U.S. remains at the forefront of technology among other nations of the world, and continues as a major competitor in all other fields. The system was designed to protect both U.S. and foreign workers by: (1) including labor certifications and attestations; (2) implementing costly filing fees; (3) requiring extensive background documentation/proof; and (4) conducting on-site employer investigations and continuous oversight by several federal agencies.

The H-1B program contains strong provisions to ensure that U.S. and foreign workers are protected. Employers must guarantee that the U.S. workers will not be adversely affected upon the hiring of an H-1B professional. A U.S. employer using the program must also guarantee that: (1) the foreign professional will not adversely affect the working conditions of U.S. colleagues; (2) U.S. colleagues will be given notice of the foreign professional’s presence among them; (3) there is no strike or lockout at the worksite; and (4) the position requires a professional in a specialty occupation and the intended employee has the required qualifications. Employers who fail to comply with the Department of Labor (“DOL”) regulations may become subject to investigation, civil and administrative penalties, payment of back wages, and disbarment from participation in key immigration programs.

To ensure that U.S. and foreign workers are protected, each employer must maintain an audit/public access file for each H-1B applicant it has acquired. It is important to keep the public access file separate from all other employee and business files. The employer is required to have a public inspection file and DOL is able to audit that inspection file as well as payroll records to make sure the foreign worker is/was being paid the wage stated in the application. Public access files must be maintained for a period of one year beyond the last date on which any H-1B nonimmigrant was employed under the labor condition application.

Although H-1B audits are not that common, the H-1B program is currently undergoing scrutiny. Therefore, it is extremely important to maintain an organized H-1B audit/public access file, so you may expedite the audit and possibly save the company from any potential liability due to mingled or misplaced files. Audits may occur due to former employee complaints, randomly or on a profile basis. For a random audit, the DOL simply selects an employer to audit. However, a profile audit occurs when the DOL discovers a significant variation of offenses in a particular industry/area and the employer is part of the same industry/area, or the DOL has a profile for violators and the employer meets the profile. Evidently, an employer should expect an audit at some point because it is the DOL’s intent to eventually audit everyone who files LCAs.

To avoid potential costly fines, payment of back wages and/or disbarment from participation in key immigration programs, it is our recommendation that employers keep the following documents within each H-1B applicant’s separate public access file:

• A copy of each certified labor condition application (Form ETA 9035 or Form ETA 9035E) including all pages and cover sheet;
• Documentation which provides the wage rate to be paid to the non-immigrant (ex. Employment offer/agreement);
• A clear explanation of the system that the employer used to set the “actual wage” the employer has paid or will pay workers in the occupation sought (ex. Statement/evidence of employer’s pay-system or scale);
• Documentation which the employer used to establish the “prevailing wage” for the occupation sought (ex. Printout from http://www.flcdatacenter.com);
• A copy of the notice of posting including dates of posting, and a statement identifying the two posting locations;
• A statement confirming that a copy of the approved LCA was provided to the H-1B worker;
• If employer is H-1B dependent and/or a willful violator, and indicates on the LCA that only “exempt” H-1B non-immigrants will be employed, a list of such “exempt” H-1B non-immigrants should be within the file;
• If employer is H-1B dependent and/or a willful violator, and indicates such on the LCA, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers, or copies of documents establishing this information should be within the file