In this five-part series, we highlight three important USCIS policy changes and provide eight best practice tips in light of the ever-tightening U.S. immigration environment. This is the third installment in the series. Click to read Part 1 and Part 2.
This post will discuss tips three and four:
3. Ensure Payroll Records Are Consistent with Wage Attestations
Employers who pay foreign workers less than the rate of pay promised in the underlying visa documentation are at risk for immigration and wage and hour violations. In the context of H-1B visas, the employee must be paid at least the promised wage and the higher of (a) what it pays other similarly situated US workers and (b) the prevailing wage. If payroll records demonstrate that the employee is earning anything less than what was promised (or anything less than what is required by law), this must be corrected and mitigated as soon as the discrepancy is found.
It is good practice to conduct an annual audit of payroll records for H-1B workers to ensure that there are no discrepancies between the pay statements and the required wages.
4. Monitor Any Changes to the Terms or Conditions of the Foreign Worker's Employment
Educate your workforce, including the managers of your foreign national employees, about the rapidly changing immigration rules and risks which impact the foreign worker and the employer. If there is a worksite location change, a payroll change, or if a change in job title or duties is contemplated, contact immigration counsel immediately to review and discuss whether any immigration filings will be needed.
While this has always been important, now that USCIS has granted itself the authority to initiate removal proceedings to those found no longer to be in a valid immigration status, such as a foreign worker who is working in a position or location that is different from what USCIS had previously approved, an unapproved deviation could have catastrophic consequences.
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.