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Maintaining Documents of H-1B Employees

Posted by attorney Robinson Ng

Now that the H-1B filing season is in full swing, you should take some proactive steps to insure that you fully comply with the H-1B rules and regulations as best possible. In a recent decision, the Immigration and Custom Enforcement accepted a guilty plea from an employer in an H-1B visa fraud scheme. The employer filed for H-1B employees stating that they will work at his office location (traditional employees) when in fact the employees were assigned to third-party sites (contract employees) once they entered the

United States. Further, the employer provided “cheat sheets" to the employees on how to answer certain questions at the H-1B visa interview. In addition, some employees were benched without pay. Finally, the employer rented furniture to stage the office when served with an I-9 audit notice. These activities lasted for six years. Based on these findings, the employer pled guilty to visa fraud. Although the final sentence is yet to be set, the employer faces hefty fines and possible jail time for violating the CIS and DOL rules and regulations. What should you do to avoid this from happening to you?

First, you should insure that all information on the forms submitted to the CIS and DOL are as accurate as possible. Confirm that the duties expected of the H-1B employee are accurate and consistent with others similarly employed. If a person is at an entry-level position and receiving entry-level salary, verify that s/he will perform entry-level work. The DOL will look to the duties actually performed by the H-1B employee to confirm that you classified the person at the proper wage level.

Second, you can help the H-1B employee with the visa interview as long as the statements made are accurate. You should not coach the H-1B employee to say only what the consulate officer expects them to say. Advise the employee to answer the questions asked only and not volunteer information. The bottom line is that the employee will need to convince the consulate officer that the petition accurately reflects what he or she will do once in the United States and that the terms of the petition will be complied with by both you and the employee.

Third, make sure that the employee hired is working at the assigned location(s). If a person is going to work at a location for a very short term (usually less then 30 days), then s/he may be covered under the short-term placement rule. However, there are certain limitations that you need to be aware of and should consult with a qualified attorney before assigning your employee to this location. If the assignment is for an extended period of time (anything over 30 work days), contact your attorney as an amended petition may be needed.

Fourth, make sure that your payroll records accurately reflect that you are paying the H-1B employees the salary as listed on the forms filed with the CIS. If there are salary adjustments (increases), keep accurate notes in the employee file as to the reasons for the adjustment. Remember that any contingency payments (i.e. awards, bonuses, etc.) can not be included in the wage. The DOL will review your payroll records to confirm that you are paying at or above the wage stated on the forms to insure compliance.

Fifth, when terminating an H-1B employee, notify your attorney once you have exercised your right to terminate. The attorney should notify CIS of the termination, withdraw the LCA and inform you that you may need to offer to pay the individual his or her return ticket. Without complying with these requirements, you may still be obligated to pay the H-1B employee his/her salary and, in an audit, DOL may fine you back wages until the H-1B petition has been proper terminated.

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