DOL & USCIS Workforce compliance

1. DOL & USCIS Workforce compliance Presenter: Rakesh Mehrotra

2. 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

3. 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

4. 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

5. 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

6. 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.

7. 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

8. 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.

9. 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

10. 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

11. 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.

12. 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

13. 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

14. 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

15. 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

16. 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