DOL & USCIS WORKFORCE COMPLIANCE Presenter: Rakesh Mehrotra

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

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

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 between end client & consultant, badges, time sheets etc.  Properly filed petitions can avoid cumbersome RFEs

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

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.

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

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.

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

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

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.

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

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

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

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

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