Summary of Federal Laws

 

Employment

 

Miscellaneous Employment Laws

 

The Immigration and Nationality Act of 1952 (as amended)

 

8 U.S.C. § 1101 et seq.

 

For more information, see the Immigration and Nationality Act (as amended) in the sections of this summary on Students and Equal Employment Opportunity.

 

I-9 Compliance:  The Immigration Reform and Control Act of 1986 requires employers to verify that individuals hired after November 7, 1986 are legally entitled to work in the U.S.  The 1986 amendments prohibit employers from knowingly hiring undocumented aliens and authorize fines of up to $2,000 for each illegal hire. This is known as the employment eligibility verification process, and a Form I-9 must be completed and kept on file for all employees.  The form must be kept for three years after the date of hire or one year after termination.  See 8 C.F.R. § 274a.2.  The law also protects against discrimination on the basis of alienage and national origin.  See 8 U.S.C. § 1324B.

 

For a complete summary of the responsibilities of an employer in the I-9 process, as well as a checklist on completing the I-9 form, see for example, Immigration Compliance at CUA: Employment Eligibility Verification Form I-9.

 

I-9 verification is not required for independent contractors. However, an employer may not use contract labor to circumvent the law against hiring unauthorized aliens. For a look at how employment eligibility as well as independent contractor status is tracked at Arizona State University, see ASU COM 4225-02 Immigration Status--Eligibility to Receive Payment  and ASU COM 425-04 Nonresident Alien Independent Contractors .

 

 

Amended I-9 Form and the New Handbook for Employers, 72 Fed. Reg. 65974, Nov. 26, 2007
New I-9 Form

More than 10 years after Congress passed the Illegal Immigation Reform and Immigrant Responsibility Act of 1996, USCIS finally issued a revised I-9 Form. See the write up below for a summary of the documents that were removed from Part A of the old form. One document was added to List A, an unexpired Authorization Document (I-766). Employers who fail to convert to the new form may be subject to fines and penalties. For more see the Jackson Lewis newsletter on this issue, titled USCIS Issues New Employment Eligibility Verification Form. See also the USCIS November 7, 2007 Press Release and the newly revised (11-01-07) I-9 Handbook for Employers published by the Federal Government.  Employers must transition to the new form by Dec. 26, 2006. See also the Jackson Lewis article entitled USCIS Announces New Form I-9 Effective as of December 26, 2007.

 

 

Fines for I-9 non-compliance increased:  Inflation Adjustment for Civil Monetary Penalties Under Sections 274A, 274B, and 274C of the Immigration and Nationality Act: Final Rule, 73 Fed. Reg. 10130, Feb. 26, 2008

Effective March 27, 2008, the civil monetary penalties levied on employers who violate these rules will be raised (about 25%), with penalties ranging from $375 to $16,000.  See the NAFSA summary. 

 

Foreign Student Officers or Designated Officials:  The regulations at 8 C.F.R. § 214.1 contain the rules for on- and off-campus employment of foreign students, transfers, temporary absences from the country and extensions of stay.  The requirements for a designated official, i.e., the foreign student officer, are set forth at 8 C.F.R. § 214.3.  The president, owner, or head of the school must designate a designated official.  Any change in designated official must be reported to the BCIS within 30 days of the change.  Notification shall include the name, title, and a sample of the signature of the new designated official.  The notification must include a statement by the designated official certifying that he or she has read the BCIS regulations relating to the change of non-immigrant classification of students, the BCIS regulations relating to school approval, and the regulations relating to withdrawal of school approval, and affirming the official’s intent to comply with these regulations.  Withdrawal of the institution’s approval to have non-immigrant students in attendance may result from:

• failure of the designated official to notify the BCIS of the attendance of an F-1 transfer student;

• any conduct on the part of a designated official which does not comply with the regulations; or

• failure to provide BCIS with the name, title, sample signature and accompanying statement of the designated official.

 

Hiring of Non-Immigrants:  An employer wishing to hire certain non-immigrants on a permanent basis must file an application for alien employment certification (Form ETA-750).  See 20 C.F.R. § 656.  An employer hiring non-immigrant workers temporarily entering the U.S. on H-1B visas, or TN-1 Mexican workers (these are employees in specialty occupations, usually requiring at least a bachelor's degree or higher) must file a Labor Condition Application (LCA) (Form ETA 9035).  The LCA must show that the higher of the actual wage or the prevailing wage will be paid, and that the alien's employment will not adversely affect U.S. workers.  The exchange visitor regulations are contained at 22 C.F.R. § 62.

 

See NAFTA (19 U.S.C. § 3401) on hiring non-immigrants from Canada or Mexico.  See 65 Fed. Reg. 80,110 (Dec. 20, 2000) for the interim final rule (summarized above) which includes amendments to the way prevailing wage determinations are made for researchers employed by colleges and universities.

 

Supplemental Proposed Rule, Safe-Harbor Procedures for Employers Who Receive a No-Match
Letter: Clarification; 73 Fed. Reg. 15944, March 26, 2008

DHS published a final rule on August 15, 2007, setting out safe harbor procedures for employers who receive SSA no-match letters or notices from DHS calling into question the information previously
provided by their employees when establishing their work eligibility. 72 FR 45611 (Aug. 15, 2007). An injunction temporarily prevented imposition of this final rule. DHS proposes this supplemental rule to address the issues raised by the court in the preliminary injunction order. Most of the text in the supplemental proposed rule is a restatement of the position of DHS on this issue. In addition, DHS is proposing to further clarify two aspects of the August 2007 Final Rule. First, the rule instructs employers seeking the safe harbor that they must promptly notify an affected employee after the employer has completed its internal records checks and has been unable to resolve the mismatch. After reviewing the history of the rulemaking, DHS believes that this obligation for prompt notice would ordinarily be satisfied if the employer contacts the employee within five business days after the employer has completed its internal records review. Second, the proposed rule clarifies that the rule does not apply to employees hired before Nov. 6, 1986. See DHS Issues Supplement to No-Match Rule by Saqui and Raimondo. The authors point out the stay of the lawsuit expires on March 28, 2008,  and employers should monitor the issue closely. See also BNA article DHS Issues Rule on Court's Block of No-Match Letters.

 

Judge Suspends Key Bush Effort in Immigration
Social Security Mismatch Letters On Indefinite Hold for failure by government to follow proper procedures.  New York Times article dated Oct. 11, 2007 by Julia Preston.

 

See AFL et al v. Chertoff ( U.S. Dist. Court, N.D. California, Oct 10, 2007). The court found that the plaintiffs had demonstrated that the promulgated safe harbor rule would impose significant hardship on employers and employees, and also found a likelihood of success on the merits that the rule was not promulgated in accord with the Administrative Procedures Act.

Note: Rule Below on Hold

Safe-Harbor Procedures for Employers Who Receive a No-Match Letter: Final Rule 72 Fed. Reg. 45611, August 15, 2007.
This final rule (effective on September 14, 2007) describes the legal obligations of employers who receive a no match letter from the Social Security Administration, or a letter regarding employment verification from the Dept. of Homeland Security. No match letters are sent when the employees name and social security number do not match the SSA records. Safe Harbor procedures are set forth that the employer can follow. The safe harbor provides no protection from liability based on actual knowledge of an employee's ineligibility to work or on constructive knowledge of such ineligibility arising out of circumstances other than receipt of "No-Match" or "Suspect Documents" letters. See New Rules Issued Regarding Social Security "No Match" Letters for a detailed description of the safe harbor rules.

 

Adjustment of the Immigration and Naturalization Benefit Application and Petition Fee Schedule; Final Rule, 72 Fed. Reg. 29851 (May 30, 2007)

This rule is effective July 30, 2007. A chart of the new fee schedule is helpful. Note the increase in the H-1B fee to $320. See also Questions and Answers about the new schedule. See also a simplified version of the chart for those fees relevant to employers.

 

Labor Certification for the Permanent Employment of Aliens in the United States; Reducing the Incentives and Opportunities for Fraud and Abuse and Enhancing Program Integrity,Final Rule 72 Fed. Reg. 27903 May 17, 2007

The Final Rule provides a 180-day validity period for approved labor certifications; employers
will have 180 calendar days within which to file an approved permanent labor certification in support of a Form I-140 Immigrant Petition for Alien Worker (Form I-140 hereafter) with the Department of Homeland Security (DHS). The rule prohibits the sale, barter or purchase of permanent labor certifications and applications. In addition, this rule requires employers to pay the costs of preparing, filing and obtaining certification. An employer's transfer to the alien beneficiary of the employer's costs incurred in the labor certification or application process is strictly prohibited. This final rule is effective July 16, 2007 and applies to permanent labor certification applications and approved certifications approved filed under the PERM program and prior regulations.

 

Summary of  Cost Allocation between employer and employee in place after adoption of new rule (Provided Courtesy of Russell Ford, Littler Mendelson, PC)

A. Lawful Permanent Residence ("green card")

1. PERM (Labor Certification Application): Under the DOL's new rules, the employer (i.e., college) must bear the costs associated with the preparation and filing of a PERM application with the DOL including, but not limited to, the advertising costs and attorney's fees (in most situations).

2. I-140 Immigration Petition for Alien Worker: There is no legal obligation for the employer to pay any costs associated with the preparation and filing of an I-140 with the USCIS.

3. I-485 Application to Adjust Status to Permanent Residence: There is no legal obligation for the employer to pay any costs associated with the preparation and filing of an I-485 with the USCIS.

B. Nonimmigrant Matters (i.e., H-1B, O-1, TN, etc.)

* Currently, the only obligation held by an employer in the nonimmigrant context is with regard to the H-1B. An employer must pay the $500 Fraud fee and cannot pass this cost along to the employee. (In addition, the employer must pay the $1,500 training fee but colleges are exempt from this fee). Finally, if the college terminates the employee before the end of his H-1B status, then the college must offer the H-1B employee return transportation home (including the offer to pay for this transportation).

Tax Issues:  The I.R.C. requires universities to make complex determinations as to the proper amount to withhold for tax on foreign students. Resident aliens are generally subject to the same withholding and filing requirements as U.S. citizens, and are subject to U.S. income tax on their worldwide income.  Nonresident aliens are subject to U.S. tax only on income from sources within the U.S.  Certain payments to nonresident aliens are excluded from taxation pursuant to treaty.  See Scholarships and Fellowships Paid to Foreign Students and Scholars for more information on this topic.

 

Recordkeeping:  Institutions must keep records on enrolled students with F-1 and M-1 visas for the entire period of their enrollment.  See 8 C.F.R. § 214.3(g).  This information must include name, date, place of birth, country of citizenship, residential address, student status (full- or part-time), date of commencement of studies, degree program and field of study, certification for practical training, termination date and reason, some admission documents, credits completed each semester, and the student’s I-20 copy.  Notification to BCIS in form of a report must be sent after student departs, with reasons for departure.  See the section on The Coordinated Interagency Partnership Regulating International Students (CIPRIS) in the summary of this law for Students for more detailed recordkeeping requirements.

 

University of Nebraska v. Michael Chertoff, et al.

Federal district court complaint filed March 2, 2007 by the University of Nebraska-Lincoln (represented by Michael Maggio) seeking to compel the U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services (CIS) to adjudicate the university's petition for an H1-B visa, filed on behalf of a Bolivian national whom the university seeks to hire as an assistant professor of history. Plaintiffs allege that the Dept. of Homeland Security has improperly withheld action on the petition for over a year and a half. The DHS is alleged to have improperly imposed a requirement for a security check on the Bolivian national to be employed by the university.

 

Final Rule: Documents Required for Travelers Departing From or Arriving in the United States at Sea and Land Ports of-Entry From Within the Western Hemisphere; 73 Fed. Reg. 18384, April 3, 2008.

Effective June 1, 2009, this rule finalizes the second phase of a joint Department of Homeland Security and Department of State plan, known as the Western Hemisphere Travel Initiative, to implement new documentation requirements for U.S. citizens and certain nonimmigrant aliens enteringthe United States. This final rule details the documents U.S. citizens1 and nonimmigrant citizens of Canada,Bermuda, and Mexico will be required to present when entering the United States from within the Western Hemisphere. See the Dept. of State Western Hemisphere Travel Initiative page for a short summary of current and future necessary documentation.

 

Documents Required for Travelers Departing From or Arriving in the United States at Air Ports-of-Entry From Within the Western Hemisphere, 71 Fed. Reg. 68411 Nov. 24, 2006: Final Rule 
Starting  Jan. 23, 2007 US Citizens and nonimmigrants from Canada, Bermuda, and Mexico departing or entering the US by air travel from within the Western Hemisphere will need a valid passport.

June 6, 2006 USCIS memo on H-1B cap exemption . This 11 page  memo clarifies  the definition of "institution of higher education" and "employed at" a qualifying institution rather than "employed by" in the H-1B context. There is also guidance on the following questions of  the nature of the affiliation that a nonprofit entity must have with an institution of higher education and to what extent must an organization be involved in "research" to be considered a "research organization." The memo provdies that third party petitioners will be permitted to claim the exemption if the beneficiary will perform job duties at the qualifying institution that directory and predominantly further the mission or essential of the qualifying institution.

 

Safe Harbor Procedures for Employers who Receive a No Match Letter, 71 Fed. Reg. 34281,  June 14, 2006
These proposed rules amend 8 CFR §274a.1 to clarify an employer's obligation when the employer receives a letter from the Social Security Administration stating that an employee's name and social security number do not match agency records, or the employer receives notice from the Dept. of Homeland Security that the immigration status or employment authorization documentation presented for an I-9 was not assigned to the employee. Under current law, an employer is in a difficult spot, on the one hand, being charged not to ask for specific documents or risk being guilty of discrimination, and on the other hand, commanded by the law not to hire illegal aliens. This proposed rule removes some of the risk  for the employer by clarifying the steps to be taken in the situation above. The first step is for the employer to check the records to see if there is a typo or some other error. If so, the employer should correct the records and reverify with the agency. If the records do not reveal a typo or some other error, then the employer must ask the employee to pursue the matter with the relevant agency. The discrepancy is resolved at this level only if the employer can verify  with the SSA or DHS. If not resolved, the employer has 60 days (from receipt of letter) to pursue verification.  If the employee's identity and work authorization cannot be verified, then the employer must take steps to terminate the employee. Under the proposed rule, both Section 1 (``Employee Information and Verification'') and Section 2 (``Employer Review and Verification'') of a new I-9 form would have to be completed within 63 days of receipt of the no-match letter. Therefore, if an employer tried to resolve the discrepancy described in the no-match letter for the full 60 days provided for in the proposed rule, it would have an additional 3 days to complete a new I-9. Comments due by Aug. 14, 2006. See the Jackson Lewis  legal update dated June 14, 2006 titled Proposed ICE Regulation on Social Security Mis-Match Letters.

 

Visas: Documentation of Nonimmigrants Under the Immigration and Nationality Act, as Amended, Final Rule, 71 Fed. Reg. 37494, June 30, 2006
This final rule reduces the level of review for visa refusals, and expands the scope of review of visa issuances. The final rule is effective June 30, 2006.

Electronic Signature and Storage of Form I-9, Employment Eligibility Verification, 71 Fed. Reg. 34510 June 15, 2006, Interim Rule, effective June 15, 2006

This interim rule amends Department of Homeland Security regulations to provide that employers and recruiters or referrers for a fee who are required to complete and retain Forms I-9, Employment Eligibility Verification, may sign and retain these forms electronically. This interim rule implements statutory changes to the Form I-9 retention requirements by establishing standards for electronic signatures and the electronic retention of the Form I-9. Written comments due on or before August 14, 2006.

 

H-1B Visas and Required Electronic Filing of Labor Condition Applications, 70 Fed. Reg. 72555 (Dec. 5, 2005)

The Employment and Training Administration (ETA) of the Department of Labor (is amending its regulations related to the H-1B programs to generally require employers to use Web-based electronic filing of labor condition applications (LCAs). The final rule is effective Jan. 4, 2006. The rule also implements congressional reinstatement of special attestation requirements for H-1B dependent employers and employers who have committed willful violations of H-1B requirements. 

 

Foreign Labor Certification Processing Notice, 70 Fed. Reg. 41430 July 19, 2005

The ETA  is issuing this notice to clarify the locations where applications may be filed and are being
processed, respectively, for the permanent labor certification and major temporary foreign labor certification programs administered by ETA's Division of Foreign Labor Certification and  to clarify key procedures within each program that may be impacted by ETA's transition from region-based to center-based review.

 

Labor Condition Applications and Requirements for Employers Using Nonimmigrants on H-1B Visas,   70 Fed. Reg. 16774, April 1, 2005

The Employment and Training Administration (ETA) of the Department of Labor (the Department or DOL) is proposing to amend its regulations related to the H-1B and H-1B programs to generally require employers to use Web-based electronic filing of labor condition applications (LCAs).

 

PERM Rules on Labor Certification Process 69 Fed. Reg. 77325 (Dec. 27, 2004)

 

This final rule is effective on March 28, 2005, and applies to labor certification applications for the permanent employment of aliens filed on or after that date. The Department of Labor (DOL) is amending its regulations governing the filing and processing of labor certification applications for the permanent employment of aliens in the United States to implement a new system for filing and processing such applications. As of March 28, 2005, labor certifications will be filed directly with the DOL through an automated, on-line system, using the new Form ETA 9089.  Employers will have the option of filing applications electronically, using web-based forms and instructions, or by mail. See Questions and Answers about PERM (Program Electronic Review Management) by Maggio and Kattar, PC.

H-1B News from Helene Robertson, Director, CUA Office of Interntational Student and Scholar Services (December 2004)

On Dec. 8, 2004 the President signed an Omnibus spending bill (HR 4818) onto which was tacked a very important piece of immigration-related legislation of concern to us, The H-1B Reform Act of 2004.    Key provisions of the new law include:

• The permanent re-establishment and increase of the training fee that must be paid by non-academic employers.  The fee will be set at $1,500.  Colleges and Universities are exempt from this training fee since, by their very nature, they are engaged in the education and training of individuals in fields in which H-1B workers are hired.
• The wage offered by employers must meet 100% of the prevailing wage.  Current regulations require employers to meet only 5% of the prevailing wage.
• The law changes the way the Department of Labor computes wage levels by increasing the number of wage levels from two to four.  This should provide more realistic wage requirements for mid-level positions.  Under the current two-tiered system, Level One (entry level) and Level Two wages (any position requiring 2 or more years’ worth of experience) could vary as much at $40,000 or more.
• The law expands the Department of Labor’s ability able to launch an investigation of an employer if it suspects that the employer has violated the terms of the H.  Current regulations require that a complaint be filed before DOL can investigate.
• The law implements a new $500 anti-fraud fee must be paid by all employers seeking to hire individuals on H1s.  This is in addition to the basic $185 filing fee associated with the H-1B petition.  All employers must pay this fee.  This essentially raises CUA’s cost of sponsoring an individual for H-1B from $185 to $685.
• The law effectively increases the cap on the number of H-1Bs that Immigration can approve from 65,000 to 85,000, with 20,000 of those being available only to students who obtain advanced degrees at U.S. academic institutions.  It should be noted that academic institutions are exempt from this cap altogether and so this provision would be a greater benefit to our graduates pursuing employment opportunities outside of academia.

Some of the provisions take effect immediately while others take effect 90 days (March 8, 2005) after enactment.  The Department of Labor and the Department of Homeland Security will still have to write the regulations they will use in administering the program. 

Employers who are subject to the training fee experience an even greater increase.  They are looking at having to pay $2185 in filing fees for the normal processing of an H-1B.  If expedited processing is needed, an additional $1,000 must be paid.

For a basic overview of the H-1B process at CUA see http://international.cua.edu/recruiting/h-1b.cfm .

 

 New Law will Allow Electronic I-9s: Public Law 108-390 Oct. 30, 2004

 

Section 274A(b) of the Immigration and Nationality Act (8 U.S.C. 1324a(b)) is amended to allow the I-9 attestation to be manifested by either a hand-written or an electronic signature. The I-9s will also be able to be stored electronically.  The amendments made by the law will  take effect on the earlier of--(1) the date on which final regulations implementing the  amendments take effect; or (2) 180 days after the date of the enactment of the Act. See the Seyfarth Shaw Newsletter for more on this issue.

 

Labor Certification for the Permanent Employment of Aliens in the U.S.;  Backlog Reduction; Interim Final Rule

69 Fed. Reg. 43716 (July 21, 2004) This interim final rule is effective Aug. 20, 2004 and provides a mechanism for reducing the  backlog of applications for labor certification for the permanent employment of aliens in the US. The amendment will allow the National Certifying Officer to transfer to a centralized ETA processing center applications now awaiting processing by State Workforce Agencies or ETA Regional Offices. The interim final rule does not affect the status of the May 6, 2002 (67 Fed. Reg. 30465) proposed rule streamlining the labor certification process, which is expected to be finalized later this year.

 

Interim Rule on H and J visas: Personal Appearance Required

 

68 Fed. Reg. 40127 (July 7, 2003)

This interim rule  significantly reduces the number and kind of situations in which the usual requirement that a nonimmigrant visa applicant appear before an officer for a personal interview may be waived by the consular officer. This rule is effective August 1, 2003. The Interim Rule allows the consular officer to waive the personal appearance requirement in certain narrow categories, including for persons age 60 or older and for applicants who within 12 months of the expiration of their previous visas seek re-issuance of a non-immigrant visa of the same classification. The interim final rule does not affect the status of the May 6, 2002 proposed rule streamlining the labor certification process, which is expected to be finalized later this year.

 

Immigration Guidance on H-1B Visas for Registered Nurses

 

On Nov. 27, 2002 the Bureau of Citizenship and Immigration Services (BCIS, formerly INS) issued a field guidance that clarifies when a nurse will be eligible for an H-1B visa. Summaries of the guidance are provided by Jackson Lewis: Immigration Issues Guidance on Adjudication of H-1B Petitions for Nurses and VisaLaw.Com: INS Provides New Guidance on H-1B Visas for Registered Nurses.

 

Fast track process for employment based visas:  The BCIS has instituted premium visa processing for employment based visas. This program allows employers to pay a $1,000 fee, which guarantees that visa applications will be processed within 15 days after receipt. See How Do I Use the Premium Processing Service?, a Q and A on the BCIS web page for more on this option. Form I-907 is used to request Premium Processing. See also the BCIS web page on the Premium Processing Service which contains further information for employers. 

 

Interim Final Rule on H-1B Regulations

 

The interim final regulations were published by the Employment and Training Administration of the Department of Labor at 65 Fed. Reg. 80,110 (Dec. 20, 2000).  These regulations accomplish two things.  First, the regulations incorporate the changes made to the Immigration and Nationality Act (INA) by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) (Pub. L. No. 105-277, 112 Stat. 2681).  Second, the regulations incorporate the amendments made to the INA by the American Competitiveness in the Twenty-first Century Act of 2000 (Pub. L. No. 106-313, 114 Stat. 1251) enacted on October 17, 2000 (the "October 2000 amendments").  The regulations generally become effective January 19, 2001, with certain sections retroactive to December 20, 2000.  The Labor Condition Application (LCA) provisions are effective for LCAs filed on or after February 5, 2001.

Statutory changes made by the October 2000 amendments, which are of interest to colleges and universities, include the following:

• Removal of the cap on H-1B visas for those non-immigrants employed by institutions of higher education and by their related or affiliated nonprofit entities.

• A portability option for H-1B non-immigrants, by authorizing their change of employers (from one H-1B employer to another) upon the filing by the prospective employer of a new petition on behalf of the prospective H-1B employee (no need to await BCIS adjudication of the petition prior to beginning new job).

• Authorization of extension of H-1B status for non-immigrants in cases of delayed BCIS adjudication of petitions for employment-based immigration or applications of adjustment of status for permanent residence.

 

Other changes made pursuant to the interim final rule are as follows:

• The revised version of Form ETA 9035 is now the proper form for use by employers and their attorneys, and submission of the old form will result in a rejection.  The new cover page, Form ETA 9035CP contains instructions for completing Form ETA 9035.  Form ETA 9035 no longer contains the full required attestations. Instead, employers must  read the attestation statements set forth in the cover page (i.e. Form ETA 9035CP) and indicate on Form ETA 9035 concurrence with the statements in Form ETA 9035CP.  The LCA may be submitted by fax transmission to 1-800-397-0478.  Employers should fax to the Department of Labor only Form ETA 9035, not Form ETA 9035CP.  The form submitted by the employer should be an original document, rather than a fax of a fax, or the new electronic system will not read the document properly.  The forms are available at www.ows.doleta.gov and as an appendix to the rule. 

• Employers must retain copies of all fringe benefit plans, and summary plan descriptions, including all rules regarding eligibility and benefits, evidence of what benefits are provided to individual workers, and how costs are shared between employers and employees.  This information is already required under ERISA.

• Wage recordkeeping requirements now state that the employer’s public inspection file must include a description of the actual wage system used. It will not have to be a detailed objective wage determination such that a third party can determine the wages.  Rather, it must explain how a worker’s wage is set in relation to other workers, and factors used to differentiate pay.

• Employers no longer need keep hourly wage records for full-time H-1B employees paid on a salary basis, but must keep hourly wage records for part-time H-1B employees, even if they are paid on a salary basis.

• The Department of Labor has clarified record retention requirements.  Where there is no enforcement action, the employer shall retain required records for a period of one (1) year beyond the last date on which any H-1B non-immigrant is employed under the LCA.  If no non-immigrants were employed under the LCA, the employer shall retain required records for a period of one (1) year from the date the LCA application expired or was withdrawn.

• Employers must still post notice of H-1B filing in two locations, but now have the option of electronic  postings of LCA filings.  This can be either an e-mail sent to all similarly situated employees via a one-time e-mail, or posting the notice for 10 days on the employer’s Web site where vacancy announcements are posted.  Evidence of electronic posting must be placed in the inspection file.

• H-1B employees must be paid in accordance with the terms of the LCA, even if they are in non-productive status, unless that status is for reasons unrelated to employment, such as an unpaid leave or sabbatical.

• Employers may not require an H-1B worker to pay the employer’s petition filing fees or impose a penalty for early cessation of employment.

• In computing the prevailing wage for a job opportunity as an employee of an institution of higher education; a related or affiliated nonprofit entity; a nonprofit research organization or a governmental research organization, the prevailing wage level shall only take into account employees at such institutions and organizations in the area of intended employment.

 

Electronic compliance material will be available through the Department of Labor Web page at www.dol.gov, under DOL Agenicies:  ESA, Wage and Hour Division (WHD), then to laws and regulations, then Compliance Assistance Information:  Wage and Hour Division.

 

Petitioning Requirements for the H-1B Non-Immigrant Classification Under the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA)

 

Final Rule – 65 Fed. Reg. 10,678 (Feb. 29, 2000)

Employers filing H-1B petitions should be aware that Form I-129W (Petition for Non-Immigrant Worker Filing Fee Exemption) must also be submitted, effective March 30, 2000.  As part of ACWIA, a $500 additional filing fee (raised to $1,000 by the October 2000 amendments) was imposed on employers seeking to hire H-1B non-immigrants. Institutions of higher education, as defined in Section 101(a) of the Higher Education Act of 1965, and related or affiliated nonprofit entities are exempt from this additional filing fee.  (According to the the October 2000 amendments, nonprofit entities engaging in established curriculum-related clinical training of students registered at such institutions are also exempt from the filing fee.)  To claim the exemption, universities must complete Section B of the Form I-129W, whenever they are filing an H-1B petition. Form I-129W can be downloaded from the BCIS Web site at http://www.bcis.gov/graphics/index.htm.

 

Honorarium Payments to B Visa Holders

8 U.S.C. § 1182q

 

In 1998, Congress inserted a provision in immigration law that allows colleges and universities to make honorarium and associated incidental expense reimbursement payments to B-1 (business) and B-2 (tourist) visa holders for "usual academic activity or activities," limited to a maximum of 9 days at any single institution.  In addition, the non-immigrant must not have accepted such payments or expenses from more than 5 institutions or organizations in the previous 6-month period. 

 

See 67 Fed. Reg. 37727 (May 30, 2002) for the proposed regulations.

 

For a summary of the mechanics of hiring an H-1B, including a list of documents needed, see for example, Immigration Compliance at CUA: Responsibilities of an Institution Hiring H-1B

Professionals.  The article addresses filing the labor condition application, as well as the H-1B petition, and has a list of questions and answers on the process.

 

Resources

 

Social Security Numbers and Foreign Nationals: A resource page from The Catholic University of America International Student and Scholar Services Office

Social Security Numbers have become a key element many aspects of life in the U.S.  Recent developments restrict the availability of Social Security Numbers for foreign nationals.  This page provides resource documents for understanding the role of SSNs in various parts of U.S. business/society. 

 

NACUA Resource Page on Immigration and Employment (password protected)

NACUANOTES: Changes to the Alien Worker Labor Certification Process Vol 3, No. 2, March 24, 2005

The Department of Labor (DOL) is amending its regulations governing the filing and processing of labor certification applications for the permanent employment of aliens in the United States to implement a new system for filing and processing such applications. As of March 28, 2005, labor certifications will be filed directly with the DOL through an automated, on-line system, using the new Form ETA 9089.  This is a comprehensive guide by Russell Ford, Esq. Strickland Brockington Lewis LLP.