United States: Immigration Under The New Administration: H-1B Visas And What To Expect

Tara L. Vance and Neal N. Beaton are Partners in our New York office.

HIGHLIGHTS:

  • While the initial immigration focus of the Trump Administration will likely be on undocumented workers and workers not working pursuant to the specific terms of their underlying U.S. work visas, the administration will almost certainly also target employers who employ such individuals and who are not in full compliance with the law.
  • Specifically, the new administration is expected to attempt to limit the number of years that an H-1B visa can be valid, with renewals, and compliance and enforcement are expected to be much more of a federal government focus.
  • These changes make it more important than ever for employers to make sure that they are complying with the terms of underlying Labor Condition Applications (LCAs) that they have filed with the U.S. Department of Labor (DOL) and the underlying H-1B visa petitions that they have filed with U.S. Citizenship and Immigration Services (USCIS).

With the Trump Administration taking office, it is expected that changes to immigration policies will be carried out swiftly and, to a large extent, in an unapologetically straightforward manner. While the initial public focus will likely be on undocumented workers and workers not working pursuant to the specific terms of their underlying U.S. work visas, the administration will almost certainly also target employers who employ such individuals and who are not in full compliance with the law. Specifically, it is expected that the new administration will try to limit the number of years that an H-1B visa can be valid with renewals, and it is expected that compliance and enforcement will be much more of a focus by the U.S. government. This means that not only could H-1B employees potentially face negative consequences but that employers will be targeted to a much stricter extent and in a more prevalent manner.

Initial Considerations for Employers

In order to protect your company, yourself and your employees, make sure that you are complying with the law. This sounds like an easy thing to do, but business realities sometimes make compliance difficult, possibly because the realities of business do not match the realities of the law or because when business is in high gear, the specifics of the law that must be complied with after an H-1B visa has been issued can easily be overlooked.

Specifically, it is now more important than ever to make sure you are complying with the terms of the underlying Labor Condition Applications (LCAs) that you have filed with the U.S. Department of Labor (DOL) and the underlying H-1B visa petitions that have been filed with U.S. Citizenship and Immigration Services (USCIS). Some questions to ask are:

  • If you employ H-1B visa holders, are they employed at the location reflected in the underlying LCA and underlying H-1B visa petition?
  • Are you paying at least the prevailing wage rate of similarly employed individuals as reflected in the underlying LCA?
  • Are you paying the H-1B visa holder at least the wage reflected on the underlying LCA and the underlying H-1B visa petition?
  • Have you properly prepared and maintained the required H-1B public access file for each H-1B visa employee?
  • If you have terminated an H-1B visa holder or an H-1B visa holder left employment with your company, did you properly notify DOL and USCIS of such employment termination?
  • Have you maintained up-to-date Forms I-9 for all H-1B (and other) employees?
  • Do you have a plan in place in case the company is subject to an on-site audit by DOL or USCIS?

What Employers Can Do Now

First, confirm that all of your H-1B visa holders are employed in a manner consistent with the underlying documents filed with DOL and USCIS, especially with respect to location and salary, but also with respect to job title and duties. Any substantive change in the employment reflected in the underlying documents requires the filing of an amendment with both DOL and USCIS. What constitutes a "substantive change" is not always clear – a change in location outside the geographic area reflected in the underlying LCA and a decrease in wages is clearly a substantive change. A title change may not be a substantive change, and you should discuss with your immigration lawyer whether the title change is accompanied by a substantive change in duties and responsibilities. If so, amendments should be filed.

Second, confirm that you are maintaining H-1B public access files for each H-1B visa holder and that you have maintained such information for each H-1B visa holder as required by law. Currently, the law requires that an employer create an H-1B public access file for an H-1B visa holder employee within one business day of filing an LCA with DOL and that such public access file be retained for a period of one year from the last date on which the H-1B visa holder is employed with the company pursuant to the underlying LCA. Further, payroll records for such H-1B employees and other employees in the same occupational classification are to be retained by the employer at the employer's principal place of business or at the place of employment for a period of three years from the date of creation of the record.

An H-1B public access file must include the following:

  • an original of the certified LCA signed by the employer and the accompanying cover pages
  • documentation confirming the salary to be paid to the H-1B employee
  • a full, clear explanation from the employer explaining how it determined the salary it has paid or will pay workers in the occupation for which the H-1B employee is hired, including any periodic increases that the employer's system may provide; for example, the employer may include a memorandum summarizing the analysis used to determine the salary, or a copy of the employer's pay system or pay scale (while payroll records are not required to be placed in the public access file, they must be made available to DOL in an enforcement action).
  • a copy of documentation the employer used to establish the prevailing wage for the occupation for which the H-1B employee was sought, such as a copy of the salary survey from the DOL website that is used for the underlying LCA
  • a copy of the employer documents used to satisfy the union/employee notification requirements, such as evidence of the notice provided to the bargaining representative, the two internal posting notices dated and signed by the employer, or other notification permissible under the law
  • a summary of the benefits offered by the employer to U.S. workers in the same occupational classification as the H-1B employee and a statement detailing how any differentiation in benefits is made when not all employees are offered or receive the same benefits and, where applicable, a statement that some or all H-1B employees are receiving "home country" benefits
  • if the employer goes through a corporate restructuring, a sworn statement by an authorized representative of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employer, together with a list of each affected LCA and its date of certification, and a description of the actual wage system and Employer Identification Number (EIN) of the new employing entity (even if the EIN is the same); such a statement should include specific language confirming the new employing entity's agreement to abide by DOL's H-1B regulations applicable to LCA forms, maintain a copy of the statement in the new employing entity's H-1B public access file and make the statement available to any member of DOL, upon request.

There are additional requirements for employers who are H-1B dependent or willful violators, as referenced in the LCA and related regulations.

While not specifically required under the law, many employers also maintain a separate file for each H-1B visa employee- to be provided to the authorities in case of an audit, site visit or investigation by DOL or USCIS. Such a file should be maintained separately from the public access file and should include the following: 1) a statement identifying the two internal posting locations for the LCA and the dates of the postings, or such information should be written on the back of the actual posted LCAs or related notices posted internally; 2) a statement confirming that a copy of the approved LCA was provided to the H-1B worker, which the employer usually has signed by the H-1B employee when the employer provides a copy of the approved LCA to the employee; 3) a copy of the H-1B visa petition, including all supporting materials, as filed with USCIS; 4) payroll records for the H-1B employee and other similarly employed individuals (such payroll records must be maintained for at least three years); and 5) a statement confirming the benefits offered and provided to the H-1B employee.

Additionally, in order to further protect your company, you should confirm that once an H-1B visa holder's employment terminates, that you have withdrawn the underlying LCA with DOL and sent a written notice to USCIS advising it of the employment termination.

Also make sure that all of your company's Forms I-9 are up to date and properly completed. You are not permitted by law to conduct an audit of Forms I-9 for any specific category of employees, but you can always conduct an audit of all Forms I-9. Because enforcement is expected to be more of a focus with the new administration and Form I-9 violations affect the employer, this is a critical step in ensuring that you are compliant with the law.

Lastly, make sure that your company has a plan in place in case it is subject to an audit by the authorities. In the past, most such audits or site visits were relatively routine and for the purposes of confirming that the H-1B employment was consistent with the underlying documents filed with the government authorities. However, under the new administration's expected focus on compliance and enforcement, any violation could have more severe consequences. As such, all employers should make sure they have designated employer representatives to handle any such audits or site visits and make sure other employees know not to answer any questions relating thereto and to refer investigators to the employers' authorized representatives. All employer representatives should be familiar with the names of the H-1B visa employees and the contents of the underlying LCAs and H-1B visa petitions or have easy access to such materials. If the subject of an audit or site visit, an employer representative should first check the investigator's credentials and get the investigator's name (ask for the investigator's business card), stay with the investigator for the duration of the audit or site visit and take notes, especially relating to the questions asked and answered and documentation provided to the investigator. And always let your immigration lawyer know about any audit or site visit.

Final Takeaways

All employers hiring H-1B visa holders should ensure that they are in full compliance with the related laws of DOL and USCIS. If you need to create a checklist to be used for such purposes, then do so to ensure compliance. If additional training, new recordkeeping procedures and other internal controls are needed, then make whatever adjustments are needed. If you are unsure how to take such corrective actions, speak with your immigration lawyer, who should be able to assist. Violations of the law can result in not only fines, but – in instances where the U.S. government proves a pattern and practice – jail time.

Holland & Knight has experienced immigration attorneys who can assist employers in complying with H-1B laws and in evaluating and analyzing their current internal practices and procedures to determine what changes need to be made to ensure compliance. We also regularly walk clients through the H-1B process, including analysis of applicable H-1B visa options and the steps needed to protect a company upon termination of an H-1B visa holder.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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