Articles Posted in H1B Visas

Our office is busy with completing all our H1B petitions to be ready for April 1 deadline. This is a recent update regarding prevailing wage issues. Department of Labor issued revised Frequently Asked Questions (FAQ) for the H-1B 2012 filing season. I wanted to cover the Prevailing Wage topic.

Many of our readers will undergo labor certification in the process of obtaining permanent residence. Those who have been through the process know that documenting the prevailing wage is among the many challenges of a labor certification.

The prevailing wage is the average wage paid to similarly employed workers in a particular occupation in the geographic area of intended employment. In accordance with procedures issued in 1998, in most cases the State Employment Workforce Agencies (SWAs) are required to determine the prevailing wage rate based on wage surveys conducted by the Bureau of Labor and Statistics under the occupational employment statistics (OES) program. There are exceptions to this for certain positions that are covered under the Davis-Bacon Act (DBA) or other Service Contract Act (SCA), or where there is a negotiated collective bargaining agreement.

Administrative site visits of U.S. employers in connection with H-1B petitions are becoming increasingly common as USCIS is trying to preserve the integrity of H-1B program in response to the USCIS H-1B Benefit Fraud Analysis report of September 2008. This article is presented by Attorney Ekaterina Powell from our office.

Administrative site visits are conducted as part of USCIS anti-fraud initiative. The main goal of a site visit is to verify the beneficiary’s H-1B employment with the petitioning entity. Employers are not provided any notice in advance of the site visit, which may be a problem for unprepared employers who do not know what to expect and how to prepare for the site visit.

In the recently released California Service Center Stakeholder Engagement Meeting on November 8, 2011, CSC points out that, in connection with an administrative site visit, petitioners should be prepared to answer any questions related to the terms and conditions of H-1B employment.

According to the National Foundation for American Policy, USCIS dramatically increased denials of L-1 and H-1B petitions over the past four years, harming the competitiveness of U.S. employers and encouraging companies to keep more jobs and resources outside the United States. Data indicate much of the increase in denials involves Indian-born professionals and researchers. U.S. Citizenship and Immigration Services adjudicators have demonstrated a capacity to keep skilled foreign nationals out of the United States by significantly increasing denials, along with often time-consuming Requests for Evidence (RFE), despite no change in the law or relevant regulations between 2008 and 2011.

Employers report the time lost due to the increase in denials and Requests for Evidence are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States – beyond the reach of U.S. Citizenship and Immigration Services adjudicators and U.S. consular officers.

Given the resources involved, employers are selective about who they sponsor. The high rate of denials (and Requests for Evidence) is from a pool of applicants selected by employers because they believe the foreign nationals meet the standard for approval, making the increase in denials difficult to defend. Denying employers the ability to transfer in key personnel or

Attorney Ekaterina Powell from our office wrote this great article on maintaining H-1B compliance procedures by employers.

If you are an H-1B employer, you need to be familiar with the H-1B regulations and Labor Condition Application (LCA) compliance procedures. Each employer petitioning for an H-1B worker has to file a Labor Condition Application, containing a number of employer’s attestations, which each employer has to abide by. The penalties for LCA violations are severe, ranging from payment of back wages and civil money penalties to debarment from the H-1B program.

Many employers filing H-1B petitions are unfamiliar with the compliance measures that can, unfortunately, lead to employer’s sanctions.