U.S. Citizenship and Immigration Services (USCIS) today provides additional guidance regarding the Employ American Workers Act (EAWA) to employers seeking to file H-1B petitions.

The EAWA was enacted to ensure that companies that receive funding under the Troubled Asset Relief Program (TARP) or section 13 of the Federal Reserve Act do not displace U.S. workers. Under this legislation, any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” An H-1B dependent employer must make additional statements to the U.S. Department of Labor (DOL) regarding the recruitment and non-displacement of U.S. workers when filing a Labor Condition Application (LCA). Please refer to the DOL’s Web site for guidance regarding the LCA filing requirements.

Subsequent to the enactment of EAWA, USCIS revised its Form I-129, Petition for Nonimmigrant Worker, to include a question asking whether the employer received covered funding (Question A.1.d).  See the first page of the H-1B Data Collection and Filing Fee Exemption Supplement. Question A.1.d. is meant to identify petitioners who received funding under TARP or section 13 of the Federal Reserve Act when the petition is filed.

USCIS understands that some businesses who received covered funding may have subsequently repaid their obligations and may not know how to respond to Question A.1.d. (For information on whether covered funding obligations have been repaid, recipients of TARP funding should seek guidance from the Department of Treasury, or the Federal Reserve, respectively.) If you have repaid your obligations, then answer “No” to Question A.1.d. If you wish to provide further information with the petition to assist USCIS in determining that your status for purposes of EAWA is correct, you may do so.

USCIS reminds you that a valid LCA must be on file with DOL when the H-1B petition (with a copy of the LCA) is filed with USCIS. Processing delays or a denial of the H-1B petition may result if the LCA does not correspond with Question A.1.d of the H-1B petition, unless any inconsistency is explained to the satisfaction of USCIS. For example, if the LCA includes the additional statements, but Question A.1.d is answered “no,” you can explain that you had received covered funding at the time of filing the LCA but repaid the obligation before filing the Form I-129. However, please note that if you indicate on the petition that you are subject to the EAWA, but the LCA does not contain the proper declarations relating to H-1B dependent employers, USCIS will deny the H-1B petition.

USCIS additionally reminds employers that EAWA applies only to new hires and not to H-1B petitions seeking to change the status of a beneficiary working for the petitioning employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of H-1B status for a current employee to continue working for the same employer.

It’s been a month of increasing salary cuts and lay offs for the US economy. The financial crisis plaguing the US market is forcing many businesses to cut down on work hours, salary, benefits etc. But employers need to be aware that making these adjustments for foreign workers may amount violations of the regulations set by Department of Labor.

Pay Cuts

The DOL regulations stipulate that employers of non-immigrant workers must comply with the salary and work hours specified in the approved Labor Certification for every immigrant. The LCA legally binds the employer into treating the foreign employee at par with any local candidate hired in a similar position. Consequently, any changes in salary, work hours, holidays etc. without making changes in the LCA, can be viewed as violation of DOL stipulations.

Layoff

If an employer lays off an H-1B worker before the expiry date on his or her approval notice, DOL stipulates that the foreign worker’s return journey has to be financed by the employer. However, this obligation does not extend to dependents.

The Agency Finalizes H1-B LCA Compliance Guide for Employers!

A recent report published by the US Department of Labor (DOL) indicates that FY 2009 is slated to be the year of “Integrity” for the foreign labor certification program. The 2009 Congressional Budget Justification Of Foreign Labor Certification report provides a comprehensive review of DOL’s past record with Labor Certification issues as well as the proposed changes and is a must-read for employers, attorneys and all immigration practitioners. The report is exhaustive in its dealings with issues pertaining to both permanent and temporary labor certification program, at the federal level as well as state level.

The Labor Certification program is the first step in an immigrant workers legal path to USA, and even citizenship. As such, the program attracts the most number of frauds. Considering the large number of both Immigrant and Non-Immigrant petitions received, the Department believes that the short duration of seven days accorded them to certify the validity of the H-1B application is little too less to allow proper investigation. Moreover, the Department has also come under fire for backlogs created due to the federal and state level security checks undertaken to maintain the integrity of the program.

According to the report, the focus on “Integrity” in the coming fiscal year is mainly the result of the investigations done for this report, which “have identified vulnerabilities in Federal Labor Certification (FLC) programs and …fraud against these programs. The foreign labor certification process continues to be compromised by dishonest attorneys, labor brokers, and employers.”

The Department seems to have taken such instances as warning signs and shifted its focus on enhancing and maintaining the integrity of the program this year. And it has been already evident in the increasing number of DOL audits held in FY 2008. The Department believes the remedy lie in early detection i.e. detecting fraudulent LC applications. One of the measures taken against such fraud by the Department recently is the elimination of Labor Certification Substitution process, which used to allow the employer to substitute one foreign worker for another on an approved permanent labor certification application. This was done by passing the Fraud Rule, which came into effect on July 16, 2007.

These strong words were also backed up with evidence like the recent bust of an immigration employment racket run by the owner of an information technology company, who was charging tens of thousands of dollars to fraudulently sponsoring hundreds of immigrant aliens in the United States.  The conviction of the person involved and the resulting prison term and penalties amounting to millions of dollars only indicates DOLs new foreign labor certification policy. It is likely that the Agency will step up its enforcement activities. There are already reports of “site visits” by DOL officials and the significance of Dol’s “LCA compliance guide” is going to increase dramatically.

H-1B Labor Condition Application (LCA) Compliance Guidance

The DOL H-1B Labor Condition Application (LCA) Compliance Guidance will act as a employers’ checklist for preparation and development of the documentary evidence for H-1B petitions, specially with:

1. Preparation of Public Access Files
2. Internal audits of compliance and Public Access Files
3. Preparation for DOL Wage and Hour Audits
4. Overall H-1B process

The guideline will also allow employers and their representative attorney’s to make sure that the employer is LCA compliant, which will go a long way in securing the employer’s interest legally in view of DOL’s new ‘Integrity” policy.

Modifications to Forms

In keeping with the new policy and guidelines, DOL has released a notice for change in the following forms:

• • ETA 9141 as modified on 06/26/2008: Job Offer and Required Wage Determination Request Form for PERM, H-1B, H-2B, and H-2A
  • ETA 9142 as modified on 06/26/2008: Application for Temporary Employment Certification Form for H-2B and H-2A
  • ETA 9089 as Modified (as per AILA and Tindall law firm Comments) New PERM Application form (March 2008 version)
  • ETA 9089 Instructions as Modified (as per AILA and Tindall law firm Comments) (March 2008 version)
  • ETA 9035 revised form proposal soon to be released.

Source: USCIS

Higher civil fines will be imposed on employers who violate federal immigration laws. This was announced by the U.S Attorney General Michael B. Mukasey on February 22, 2008, in a joint briefing with Secretary of Homeland Security Michael Chertoff about newly enacted border security reforms put in place by the Departments of Justice and Homeland Security.

Under the new rule, which will be published in the Federal Register early next week and will take effect on March 27, 2008, civil fines will increase by as much as $5,000.

Current Law

Currently, employers in violation of federal employment eligibility requirements are subject to monetary penalties under the Immigration and Nationality Act. Violations can be of various kind, including

-        Knowingly employing unauthorized aliens
-        Failure to comply with employment eligibility requirements relating to verification forms
-        Wrongful discrimination against job applicants/employees on the basis of nationality or citizenship
-        Immigration-related document frauds

For each of these violations, the employer has the right to a hearing before an administrative law judge in the Executive Office for Immigration Review.

New Law

Under the new law, the monetary civil penalties are adjusted for inflation. The average adjustment is approximately 25 percent. These penalties were last adjusted in 1999. So for example, the new penalty for knowingly employing unauthorized aliens increases from $275 to $375, a 100$ increase. Some of the higher civil penalties are increased by higher margins; for example, the maximum penalty for a first violation increases from $2,200 to $3,200.

The biggest increase is in the maximum civil penalty for multiple violations, from the current $11,000 to $16,000. These penalties are on a per-alien basis, which means if an employer knowingly employed five unauthorized aliens, the penalty will be five times the amount.

In addition to the higher civil penalties, the new regulations include broader prosecutions and removals of criminal aliens, a streamlining of existing guest worker programs, and the Southwest Border Enforcement Initiative etc. 

The Southwest Border Enforcement Initiative includes a $100 million request in new Justice Department funding for FY 2009 for new hiring and resources to better enable the United States to combat the flow of illegal immigration, drugs, and weapons across the Southwest Border, and to arrest, detain, prosecute, and incarcerate violent criminals, drug offenders, and immigration violators along the Southwest Border. More information on this funding request can be found at http://www.usdoj.gov/opa/pr/2008/January/08_opa_079.html and
http://www.usdoj.gov/opa/pr/2008/January/08_opa_080.html .