An employee in an employment authorized visa status is subject to a defined period of authorized stay. Employers should know, and keep tabs on, when an employee's visa status expires. If you want the employee to continue eligible for employment, there may come a time when the employer must timely petition to extend to change the status of the foreign national employee. Someone in your company needs to be tracking these employment-visa employees for you. A reputable employer will also notify the foreign national employee of any key visa expiration dates.
Form I-9 Verifications
Nearly all employers in the United States must complete Form I-9, Employment Eligibility Verification, for each employee hired on or after November 6, 1986. USCIS now only accepts the version of Form I-9 updated 03/08/2013. If you are not familiar with completing Form I-9, USCIS has a useful I-9 portal website: I-9 Central. Employers must remain knowledgeable about completing, correcting and retaining Forms I-9, and acceptable documents that can be presented when completing Form I-9.
Employers have certain responsibilities under immigration law during the hiring process. The employer sanctions provi-sions, found in section 274A of the Immigration and Nationality Act (INA), were added by the Immigration Reform and Control Act of 1986 (IRCA). These pro-visions further changed with the passage of the Immigration Act of 1990 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. Employers must: o Verify the identity and employment authorization of each person hired after Nov. 6, 1986. o Complete and retain a Form I-9 for each employee required to complete the form. Employers must not: o Discriminate against individuals on the basis of national origin, citizenship, or immigration status. o Hire, recruit for a fee, or refer for a fee aliens he or she knows to be unauthorized to work in the United States. Employers who violate the law may be subject to o civil fines that vary from $110--$1,100 for each Form I-9 and $375--$16,000 for each worker; o criminal penalties (when there is a pattern or practice of violations) that vary from $3,000 for each unauthorized alien and may include up to 6 months in prison; o debarment from government contracts; o a court order requiring the payment of back pay to the individual discriminated against; o a court order requiring the employer to hire the individual discriminated against.
Internal Audits of Forms I-9 Recommended
In addition to careful training of all company personnel involved in the Form I-9 process, employers should conduct regular in-house internal audits of their Forms I-9 and the I-9 process. During an I-9 internal audit, employers should verify that they have a properly completed Form I-9 for each current employee, ensure that Forms I-9 are being properly retained for terminated employees, and confirm that uniform policies are being used for processing and retaining these Forms I-9 and related documents.
LCAs and H1B Amendments
Employers with H1B workers also should audit their H1B required record keeping [public access files (PAFs)] periodically, including their labor condition applications (LCAs). Employers must retain a current, proper, unexpired LCA for each H1B worker. This LCA should be retained in the PAF, and must reflect the H1B worker's current work location(s) and position. Most changes in the work location of an H1B worker require, at the very least, the re-posting of the original LCA filing at the new work location in two conspicuous locations for ten days. If the new worksite is not in the same metropolitan statistical area (MSA) covered by the original LCA, then the employer must obtain certification of a new LCA for that location and comply with the applicable U.S. Department of Labor (DOL) posting regulations. Relocation and Change in Workplace Relocation of an H1B employee also frequently triggers the need to file an amended H1B petition. An amended H1B petition may be required if there has been a material change in the terms and conditions of employment, or changes that effect eligibility for H1B status. Substantial Salary Change If an H1B worker's salary increase results in an employee earning well above the offered wage listed in the H1B petition and labor condition application (LCA) currently in place for the worker, the employer should examine whether the employee still actually is working in the same position and performing the same job duties as those described in the H1B petition. If the individual is working in a higher or different position than what is listed in the H1B petition and underlying LCA, it may be necessary to obtain a new certified LCA and amend the H1B petition. "Prevailing" Versus "Actual" Wage Under the law, H1B workers must be paid the higher of the prevailing wage or the actual wage. The actual wage is the wage paid to other employees of the company who hold the same position. A memorandum regarding the actual wage, which is generally a range dependent upon various factors, must be included in the public access file. If there has been an overall adjustment to the employer's pay system or scale, the employer must retain documentation that explains the change and establishes that, even after the change, the H1B workers are receiving the greater of the actual or prevailing wage. It is necessary to properly identify wage levels in H1B filings. If an individual initially was working in a level I (entry level) position, but has advanced over time to a level II position or above, this should be reflected in an amended H1B petition and new LCA filing. Accordingly, it is important to accurately identify the wage levels and document and retain proof of the minimum job requirements used in preparing the LCA and H1B petition. Year End W-2 Should Match LCA/H1B Petition Wage Employers should look at their H1B employees' expected year-end gross wages to see if there is a discrepancy between the wages actually paid and wages listed in the LCAs and H1B petitions. While the U.S. Department of Labor (DOL) does not consider a W-2 to be conclusive proof of payment of the required wages, checking the year-end gross wages of each H1B employee tends to be a safe approach. Wage Discrepancy May be Indicative of Violation If it appears that an H1B employee has not been paid the required wage, the employer should consider consulting with an experienced immigration attorney. The reasons for the wage deficiency can be reviewed to determine whether there is a potential violation and back-wage obligation, or whether the employer has a valid claim to an exception. If there is an applicable exception, the file and human resources records should be well documented, in case of a DOL investigation. There can be many valid reasons that the W-2 wage does not match the LCA wage. The simplest situation is found during the H1B employee's first year of employment in the United States. Very few H1B employees start employment precisely on January 1st. In those cases, the W-2 for that year would not reflect the full annual salary. There can also be normal irregularities in pay cycles, as wages are almost always behind by at least a week or two because of payroll timing. Employers should verify, however, that their payroll systems are compliant with both federal and state laws. Terminated H1B Employees and No-Shows Employers are obligated to notify the Department of Homeland Security (DHS) immediately of materials changes in H1B worker terms and conditions of employment, including termination of employment. Failure to notify DHS/USCIS of an H1B worker's termination of employment may result in continued liability to pay the H1B worker's wages.
Corporate Mergers and Acquisitions May Affect Immigration Responsibilities
Corporate transformations, including Mergers, acquisitions, spin-offs, and asset purchases, may have specific consequences regarding immigration records. Employers should exercise their due diligence concerning immigration records for corporate transformations, including examining and determining compliance with regard to Forms I-9 forms, LCA public access files, as well as assessing the impact on the continuing employment eligibility of foreign nationals in specific visa classifications.
Every employer should have a planned system in place to monitor train certain employees to handle Forms I-9 and other immigration-related records. Every employer should regularly conduct in-house internal I-9 audits. If your company employs foreign nationals in any nonimmigrant employment-authorized visa status, you should also regularly review these immigration records. Who is training in maintaining these records, who is supervising the record keeping, and who is handling the internal audits of these records in your company?
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