Dol uscis workforce compliance
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DOL & USCIS Workforce compliance PowerPoint PPT Presentation


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DOL & USCIS Workforce compliance. Presenter: Rakesh Mehrotra. H-1B QUOTA STILL OPEN. Roughly 54,000 applications filed Quota likely to get exhausted in the next few days File your H-1B petitions ASAP New LCA Portal since July Need seven days or more to get LCA certified.

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DOL & USCIS Workforce compliance

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DOL & USCIS Workforce compliance

Presenter: Rakesh Mehrotra


H-1B QUOTA STILL OPEN

  • Roughly 54,000 applications filed

  • Quota likely to get exhausted in the next few days

  • File your H-1B petitions ASAP

  • New LCA Portal since July

  • Need seven days or more to get LCA certified.

  • Problem with FEIN number verification

  • Exact street address required for work location


RFEs TARGETING COMPUTER CONSULTING COMPANIES

  • September 2008 H-1B Benefit Fraud & Compliance Assessment report of USCIS

  • Found fraud and technical violation specially with respect to computer consulting companies

  • RFEs for new and well-established companies and new, extension and transfer petitions

  • Computer consulting companies are deemed “job shops”

  • Presumption petitioner not the actual employer where consultant placed at client site

  • RFEs requests end client contracts and detailed work orders


RFEs TARGETING COMPUTER CONSULTING COMPANIES Contd…

  • We can help prepare adequate responses to RFEs

    • With certain language end clients are happy to give letters

    • Other strategies: use of email between end client & consultant, badges, time sheets etc.

    • Properly filed petitions can avoid cumbersome RFEs


RFEs REQUESTING DETAILS OF INTERNAL PROJECTS

  • Just a write up on a project is not enough.

  • Evidence required that you generally engage in software development

  • Detailed marketing plans

  • Evidence of purchase of product

  • Team members assigned, titles, duties,

  • Invoices of development of product for client

  • We can help your company sort through this issue


RFEs REFER TO HIGH NUMBER OF H-1B PETITIONS IN PAST YEARS VS. CURRENT NUMBER OF EMPLOYEES

  • Revoke H-1B petitions of terminated employees.

  • Be prepared to explain discrepancy:

  • Employees may have changed jobs, declined employment or been terminated.

  • We can help you prepare the documentation to explain this discrepancy.


FDNS SITE INSPECTIONS: PURPOSE, HISTORY AND FUNDING

  • FDNS created 2004 to detect deter and combat fraud AND

  • To ensure that the immigration benefits are not granted to people who can pose to be a threat to national security or public safety

  • In the past FDNS has already assessed other programs

  • FDNS has now begun the assessment of H-1B program

  • To ensure that these employers are complying the rules and regulations of the H-1B program and no fraud involved in H-1B petition.

  • FDNS Collaborating with other governmental agencies including ICE and DOL.

  • Funded by fraud detection fee of $500 paid by employers


STRONG LIKELYHOOD OF FDNS VISIT

  • VSC & CSC have transferred almost 40,000 cases to FDNS for review

  • USCIS adjudicators also refer cases as a part of regular H-1B adjudication process

  • FDNS consists of approximately 650 Immigration Officers & several private investigation firms

  • Very likely that FDNS officers will be visiting the offices of several H-1B employers

  • We have received information form several of our clients that a site visit has been conducted.


HOW IS FDNS H-1B SITE VISIT GENERALLY CONDUCTED

  • Visit mostly unannounced

  • At employer’s principal place of business and/or work location mentioned on petition

  • Immigration attorneys can be present in person or by phone

  • Will not agree to reschedule the site visit so that the attorney may be present at a later date.

  • Generally concentrate on only a single petition filed by the employer.

  • Will request to speak with the employer’s representative whose signature is on petition

  • Will request the company’s representative for detailed information on company and H-1B worker

  • Will tour the company’s facility and take photographs.

  • Will interview the H-1B beneficiary

  • Will interview the beneficiary’s colleague and/or beneficiary’s manager


RECOMMENDATIONS FOR COMPANIES THAT RECEIVE SITE VISIT FROM FDNS

  • Request identifying the information of the site investigator

  • Request presence of your immigration attorneys before officer initiates the interview

  • Speak in the presence of attorney or witness

  • Take notes of whatever information/documents asked for and provided and inform attorney

  • Retain copy of filed H-1B petitions and supporting documents and any amendments.

  • Provide a copy of filed I-129 petition and supporting documents to the beneficiary:

  • Provide accurate information of the company to the officer

  • Request for some time to be granted if any information is not available at that time.

  • Request presence of the company representative during the tour of facilities and interview of the H-1B beneficiary

  • Historically such requests denied

  • Best thing to do: Call us before the site visit to help organize your documents


ORGANIZE YOUR PUBLIC ACCESS FILES

  • Public access file needed for each H-1B worker

  • Take LCA compliance seriously

  • DOL has never published a sample public inspection folder that is acceptable.

  • Take expert legal advise to have best chance of passing DOL’s test.

  • A yearly internal LCA audit will improve legal compliance

  • Do not rely on misinformation, assumptions and past practices.

  • Best time to change your business practices.


SATISFY DEPENDENT EMPLOYER ATTESTATION

  • Displacement: Non-displacement of US Workers in employer’s workforce

  • Secondary Displacement: Non-displacement of US Workers in another employer’s workforce ( e.g. client location)

  • Recruitment and Hiring: Recruitment of US workers & hiring of US workers who are equally or better qualified than H-1B nonimmigrant(s)

  • Must develop and maintain documentation supporting LCA attestations.

  • Our attorneys can help maintain and develop required documentation


EMPLOYER IS OBLIGATED TO PAY THE REQUIRED WAGES FOR BENCHED EMPLOYEES

  • Wages are due to H-1B worker if

    • Worker is benched: i.e. “Non productive” status due to a decision by the employer OR

    • Because of lack of assigned work

  • No wages are due to H-1B worker if

    • There has been a bona fide termination of the employment relationship; OR

    • The H-1B nonimmigrant is in non-productive status due to a decision of the employee

  • Two choices only:

    • Terminate OR pay benched employees helpful; OR

    • File amended petitions if work is available part time


PROPER TERMINATION OF EMPLOYMENT FROM USCIS POINT OF VIEW

  • Termination letter alone not enough

  • Remove from payroll

  • Letter offering return cost of transportation required

  • Revocation of H-1B petitions required

  • Document termination and revocation


EXTENDED LEAVE OF ABSENCE LETTERS TO AVOID WAGE OBLIGATIONS

  • Quite transparent to disguise benching and can be tantamount to fraud or misrepresentation

  • Should be used for genuine reasons i.e. Maternity / family emergency / higher education

    • Need to be well supported and

    • Consistent with normal business practice


WHY US?

  • Filed over 10,000 petitions

  • Very high success rate

  • Represent over 500 consulting companies nationwide

  • Acutely aware of USCIS policies and requirements

  • Can help your organization save time, money and hassles

  • Current environment: More challenges and tougher requirements

  • Experienced attorneys at competitive rates


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