White Collar Exemptions: Do Employers Need to Pay Overtime Compensation to H-1B Workers? [Part II] By: Michael Phulwani, Esq., David Nachman, Esq. and Rabindra K. Singh, Esq. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

In the context of an H-1B visa, it is the definition of "professional" employees that may pose a challenge for employers in deciding whether the employee qualifies for an exemption or not pursuant to the FLSA. There are two types of "exempt" professional employees under the FLSA: learned professionals and creative professionals. To qualify for the learned professionalemployee exemption, all of the following tests must be met: (1) The employee must be compensated on a salary or fee basis at a rate not less than $455 per week ($23,660.00 annually); (2) The employee's primary duty[iii] must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; (3) The advanced knowledge must be in a field of science or learning; and (4) The advanced knowledge must be 'customarily' acquired by a prolonged course of specialized intellectual instruction.

The FLSA regulations define "work requiring advanced knowledge" as work that is predominantly intellectual in character and that includes work requiring the consistent exercise of discretion and judgment. Professional work is distinguished from work involving routine mental, manual, mechanical, or physical work. A professional employee generally uses advanced knowledge to analyze, interpret, or make deductions from various facts or circumstances.

The FLSA regulation provides examples of "exempt" status as it relates to the fields of science or learning. Those include: law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical and biological sciences, pharmacy. In addition, the regulation specifies that there could be other occupations that have a recognized professional status and are distinguishable from the "mechanical arts" or "skilled trades" where the knowledge could be of a fairly advanced type, but is not in a field of science or learning.

The learned professional exemption is restricted to professions where specialized academic training is a standard prerequisite for entrance into the profession. The best evidence of meeting this requirement is having the appropriate academic degree. However, the word "customarily" alludes the possibility that the exemption may be available to employees in such professions who have substantially the same knowledge level and perform substantially the same work as the degreed employees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction.

The FLSA exemption is not available for occupations that customarily may be performed with only general knowledge acquired by an academic degree in any field, with knowledge acquired through an apprenticeship, or with training in the performance of routine mental, manual, mechanical or physical processes. The learned professional exemption also does not apply to occupations in which most employees have acquired their skill by experience rather than by advanced specialized intellectual instruction.

In the majority of the cases, H-1B employee(s) would generally be "exempt" under the FLSA unless the employee is working in an occupation that requires only general knowledge acquired by an academic degree in any field academic. Having said that, it is important to understand why the H-1B worker would typically not qualify for benefits under the FLSA. The threshold requirement for the H-1B visa is that the employer must demonstrate both: (1) that the position requires a professional in a specialty occupation; and (2) that the intended employee has the required qualifications. Offered position requiring a baccalaureate or higher degree or equivalent typically qualifies for the H-1B visa. Further, to qualify for the H-1B visa, the employee must have been conferred a baccalaureate or higher degree in the specialized field or have its equivalence in work experience. A combination of education and experience is treated as sufficient when the prospective employee holds some formal college-level education in addition to experience in the specialized field. Conversely, a general degree absent specialized experience may be insufficient because there must be a showing of a degree in a specialized field.

Because the prerequisite for obtaining an H-1B visa is that both the offered position and the prospective employee should possess a baccalaureate or higher degree or equivalent,employees working on H-1B visas would typically qualify for the FLSA's learned professional exemption. Consider, for instance, the case of a computer professional working on an H-1B visa in the Information Technology (IT) industry. As specifically stated in the FLSA regulations, H-1B computer professionals earning $27.63 per hour ($57,470.4 annually) would qualify for the exemption of overtime pay compensation. It is important to note that even those making less than that amount would qualify for exempt status under the learned professional exemption.

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[i] This article does not cover rights and benefits of public agency employees under FLSA.

[ii] This is the second part of the three part article. This part will explore the question of "why H-1B employees are usually treated as an "exempt employee" under the FLSA". Finally, Part III will build on the Part II discussion and will also examine situations involving H-1B employees working in occupation(s) that usually do not require an advanced specialized academic degree.

[iii] According to the FLSA, the term "primary duty" means the principle, main, major, or most important duty that an employee performs. Determination of an employee's primary duty must be based upon all the facts in a particular case, with the major emphasis on the character of the employee's job as a whole.

ABCs OF H-1Bs (THIS IS PART II OF AN VIII PART SERIES): HOW MUCH PROSPECTIVE H-1B EMPLOYERS NEED TO PAY TO H-1B EMPLOYEES AND WHY THE PREVAILING WAGE IS IMPORTANT. By: Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

Employers who seek to
hire an H-1B nonimmigrant in a specialty occupation must first make a filing
with the Department of Labor (DOL) and obtain a Labor Condition Application
(LCA). The LCA, among other things, must specify the number of workers sought,
the occupational classification in which the H-1B will be employed, and the
wage rate and conditions under which the proposed H-1B nonimmigrant will be
employed. In addition, the employer must attest that it is offering, and will
offer, during the period of H-1B employment the greater of: (1) the actual wage level paid by the employer to all
other individuals with similar experience and qualifications for the specific
employment in question; OR (2) the prevailing wage level for the occupational
classification in the area of employment.

If required to pay the
prevailing wage, the wage must be 100% of the prevailing wage. The prevailing
wage is determined for the occupational classification in the area of intended
employment and must be determined as of the time of the filing of the LCA[i].
The regulations require that the
prevailing wage be based upon the best information available. An employer that
fails to pay wages as required is liable for back wages equal to the difference
between the amount that should have been paid and the amount that was actually
paid.

The prevailing wage is
determined by a Collective Bargaining Agreement (CBA) if one exists that
pertains to the occupation at the place of intended employment. If the job offer is for an occupation not
covered by a CBA and the employer does not choose to provide a survey or
request the use of a current wage determination in the area, the wage component
of the Bureau of Labor Statistics (BLS), Occupational Employment Statistics
(OES) survey[ii] should be used to
determine the prevailing wage for the prevailing wage in connection with an
employer’s job offer.

Although employers are not required to keep and maintain position
descriptions, regulations require an employer to keep and maintain a copy of
the documentation the employer used to establish the ‘prevailing wage’ for the
occupation for which the H-1B nonimmigrant is sought or the underlying individual
wage data relied upon to determine the prevailing wage. This information may
have to be made available to the public (if requested) or it may have to be
made available to the DOL upon request or in connection with an enforcement
action.

The regulations
governing the H-1B nonimmigrant visa require the Administrator, Wage and Hour
Division (WHD)[iii], to
determine whether an employer has the proper documentation to support its wage
attestation. Where the documentation is nonexistent or insufficient to
determine the prevailing wage, or where the employer has been unable to
demonstrate that the prevailing wage determined by an alternate source is in
accordance with the regulatory criteria, the Administrator may contact the Employment and Training Administration (ETA)[iv],
a part of DOL, to get the prevailing wage.

Once ETA provides the
prevailing wage, the Administrator is bound to use this determination as the
basis for determining violations and for computing back wages, if such wages
are found to be owed by an H-1B employer. It is important to highlight that the
regulation is permissive, and the ETA’s
determination is merely an option that the Administrator can use in its
investigation(s). This option is rarely used by Administrators during
investigations. If the employer fails to support, through proper
documentation, how it arrived at the prevailing wage level, the Administrator
can use the employer’s Letter of Support and I-129 forms submitted to the United States
and Citizenship Services (USCIS) for the approval of H-1B petition to determine
whether the employee was appropriately classified at the specific wage level. Thus, the alternative of not keeping
documents used in the determination of appropriate wage level is to maintain
the compatibility between the LCA and H-1B petition.

The nature of the job
offer, the area of intended employment, and job duties for workers that are
similarly employed are the relevant factors used in determining a prevailing
wage rate.  In determining the nature of the job offer, the first thing
to consider is the requirements of the employer’s job offer. Area of
intended employment means the area within normal commuting distance of the
place (address) of intended employment. 
Regulations define similarly
employed as substantially comparable jobs in the occupational category in
the area of intended employment[v].
The required work and education and/or experience for a job impact the
determination of the prevailing wage level. 

ETA provides guidance for determining the proper wage level for a
position. Level I wage rates are assigned to jobs offers for beginning or
entry-level employees who have only a basic level of understanding of the
occupation. Level I employees perform routine tasks that often requires limited
exercise of judgment. The guidance also states that Level II wage rates are assigned to job offers for qualified
employees who have attained, either through education or experience, a good
understanding of the occupation.  They
perform moderately complex tasks that require limited judgment.

Level III wage rates
are assigned to job offers for experienced employees who have a sound
understanding of the occupation and have attained, either through education or
experience, special skills or knowledge.  Frequently, key words in the job
title can be used as indicators that an employer’s job offer is for an
experienced worker. Words such as ‘lead’ (lead analyst), ‘senior’ (senior
programmer), or ‘head’ (head nurse) would be indicators that a Level III wage
should be considered. Further, the Level IV wage level applies to highly-competent employees who have sufficient
experience in the occupation to plan and conduct work requiring judgment and
the independent evaluation, selection, modification, and application of
standard procedures and techniques. Level IV employees generally hold
management and/or supervisory roles and responsibilities.

To better understand how the wage levels apply, consider an
example of job position that
requires either two years or more of experience or a Masters’ degree or higher.
Taking into consideration the above-mentioned guidelines, the employer should
use either a Level II or higher prevailing wage rate.

In addition, it is important to mention that if an entry level job has
additional requirements or duties beyond that of those ordinarily required; the
employer should refrain from using a Level I prevailing wage.

To summarize, and based on the foregoing, an employer hiring an H-1B
worker is required to pay the higher
of actual wage or prevailing wage. If paying the prevailing wage, the
wage must be 100% of the prevailing wage. Further, the determination of
prevailing wage depends on whether the occupation is covered by CBA or not. If the job offer is for an occupation not
covered by a CBA and the employer does not choose to provide a survey or
request use of a current wage determination in the area, the wage component of
the OES survey should be used to determine the prevailing wage. Moreover, the
employer is required to keep a copy of the documents used in determining the
appropriate wage level. If the employer fails to provide such documents, the
WHD Administrator may either contact the ETA to get the prevailing wage for the
offered position OR refer to the Letter of Support and/or I-129 forms submitted
to the USCIS with the H-1B petition to make a determination. Thus, the
alternative of not keeping documents used in the determination of appropriate
wage level is to maintain the compatibility between the LCA and the H-1B
petition.

In conclusion, a prospective
H-1B employer should exercise caution in offering a wage to the prospective
H-1B employees that should be the greater
of either the actual or prevailing wage. If paying prevailing wage, the
employer should take into consideration the nature of the job offer, the
area of intended employment, and jobs duties for the proffered position in selecting the appropriate OES wage
level, or else they may find themselves facing WHD challenges with regard to
paying back wages.

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[i]
In computing the prevailing wage for a job opportunity in an occupational
classification in an area of intended employment for an employee of: an
institution of higher education; an affiliated or related nonprofit entity; a
nonprofit research organization; or a governmental research organization; the
prevailing wage level should take into account the wage levels of employees
only at such institutions and organizations found in the area of intended
employment.

[ii]
The OES survey is a semi-annual survey of approximately 200,000 non-farm
business establishments conducted by the Bureau of Labor Statistics (BLS), headquartered
in Washington, DC with six regional offices and one office
in each state.

[iii]
The WHD, an agency of DOL, enforces Federal
minimum wage, overtime pay, recordkeeping, and child labor requirements of the
Fair Labor Standards Act.

[iv]
The ETA administers federal government job training and worker dislocation
programs, federal grants to states for public employment service programs, and
unemployment insurance benefits. These services are primarily provided through
state and local workforce development systems.

[v]
If no such workers are employed by employers other than the employer applicant
in the area of intended employment, it means: jobs requiring a substantially
similar level of skill within the area of intended employment; OR substantially
comparable jobs in the occupational category as employers outside of the area
of intended employment if there are no substantially comparable jobs in the area of intended employment.

White Collar Exemptions: Do Employers Need to Pay Overtime Compensation to H-1B Workers? [Part I] By: Michael Phulwani, Esq., David Nachman, Esq. and Rabindra K. Singh, Esq. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

The H-1B visa program allows U.S. employers to temporarily hire non-immigrants to fill specialized jobs in the United States. Specialized occupations are those occupations that require a "theoretical and practical application of a body of highly specialized knowledge, and ...attainment of a bachelor's or higher degree in a specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States." Employers who seek to hire an H-1B nonimmigrant in a specialty occupation must first submit a Labor Condition Application ("LCA") to the Department of Labor (DOL) with the goal of obtaining DOL approval. DOL approval ensures that the employment of H-1B visa holder does not adversely affect wages or work conditions of U.S. workers, as required by the Immigration and Nationality Act.

The employer, on the LCA, must attest that it is offering, and will offer during the period of employment, the greater of: (1) the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question; or (2) the prevailing wage level for the occupational classification in the area of employment. In addition, the LCA, among other things, must specify the occupational classification in which the worker will be employed, the wage rate and conditions under which they will be employed. Once DOL certifies the LCA, the employer submits paperwork on behalf of the employee to the United States Citizenship and Immigration Services ("USCIS") and requests an approval of H-1B (I-129) petition.

Although the LCA requires the employer to specify the wage rate, it is silent on the issue of overtime compensation. To understand why the LCA is silent on overtime compensation, OR, in the alternative, whether employers employing H-1B workers are required to pay overtime compensation, it is pertinent to go beyond the regulations governing the LCA and to closely examine the provisions of the Fair Labor Standards Act (FLSA) and its related regulations.

The FLSA, a federal law, requires that employees in the United States be paid at least the federal minimum wage for all hours worked and overtime pay at time and one-half of the regular rate of pay for all hours actually worked in excess of 40 hours in a workweek[i]. The FLSA applies to: (1) employees who are engaged in interstate commerce or in the production of goods for commerce (commonly referred as "Individual Coverage" Test); or (2) employees who are employed by an enterprise[ii] engaged in commerce or in the production of goods for commerce, unless the employer can claim an exemption from coverage (commonly referred as "Enterprise Coverage" Test).

Several exemptions exist that relieve an employer from having to meet the statutory minimum wage, overtime, and concomitant record-keeping requirements. Exemptions are narrowly construed against the employer asserting them. Consequently, employers and employees should always closely check the exact terms and conditions of an exemption in light of an employee's actual duties before assuming that exempt status might apply to the employee. The ultimate burden of supporting the actual application of an exemption rests on the employer. Note that nothing in the FLSA or DOL regulations prevents an employer from paying a worker at or above the minimum wage or to provide overtime pay even if the worker is not, by law, subject to the minimum wage or overtime pay requirements.

Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as a bona fide executive, administrative, professional and/or outside sales employee. Among others, Section 13(a)(17) also exempts certain computer professionals paid at least $27.63 per hour from the overtime provisions of the FLSA. It is important to highlight that job titles do not determine "exempt status" under the law. A job title can be indicative of potentially exempt status but it is not wholly determinative of the issue. In order for an exemption to apply, an employee's specific job duties and salary must meet the parameters set forth in the FLSA and its concomitant regulations.

To qualify for the executive employee exemption, in addition to being compensated on a salary basis at a rate not less than $455 per week ($23,660.00 annually), the employee's primary duties must involve managing the enterprise, or managing a customarily recognized department or subdivision[iii] of the enterprise. Moreover, the exempt employee must: customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and have the authority to hire or fire other employees, or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.

Similar to executive employees, administrative employees qualifying for exempt status must be compensated on a salary or fee basis at a rate not less than $455 per week ($23,660.00 annually). Also, to claim an exemption, the administrative employee must satisfy the following two requirements: (1) The employee's primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and (2) The employee's primary duty must involve the exercise of discretion and independent judgment with respect to matters of significant importance to the business.

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[i] A workweek is a fixed and regularly recurring period of 168 hours, or seven consecutive 24-hour periods. The workweek does not have to coincide with the calendar week, but instead it may begin on any day of the week and at any hour of the day.

[ii] An enterprise is defined as an individual, corporation, school, university, government agency or healthcare institution engaged in interstate commerce that directly or indirectly employs workers and that has an annual gross volume of sales made or business done of not less than $500,000. (The dollar volume test, however, does not apply to health care institutions, schools, universities and government agencies, which are covered by the Act if engaged in interstate commerce regardless of their volume of business.)

[iii] The phrase "a customarily recognized department or subdivision" is intended to distinguish between a mere collection of employees assigned from time to time to a specific job or series of jobs and a unit with permanent status and function

ABCs OF H-1Bs (THIS IS PART I OF AN VIII PART SERIES):WHAT PROSPECTIVE H-1B EMPLOYERS AND H-1B EMPLOYEES NEED TO KNOW IN ORDER TO GET H-1Bs FILED AND APPROVED IN APRIL 2014. By: Michael Phulwani, Esq., David H. Nachman, Esq. and Rabindra K. Singh, Esq. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

There are Only 58,200 Regular H-1B Visas: Do Not Delay - It's Now Time to Strategize for the H-1B Season.

The current annual cap on the H-1B category is 65,000. All H-1B nonimmigrants are not subject to this annual cap. Up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program specifically designed for the citizens of Chile and Singapore. Unused numbers in H-1B1 pool are made available for H-1B use for the next fiscal year. Thus, in effect, only 58,200 H-1Bs visas are granted each year except 20,000 additional H-1B visas which are restricted to individuals who have received master's degrees or higher from U.S colleges or universities.

U.S. Citizenship and Immigration Services (USCIS) reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period, which ended on April 5, 2013. USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.

On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a "lottery") to select a sufficient number of petitions. Given that, in FY 2014, the H-1B cap was met by the first week of the filing period, it is imperative that employers file all new quota-subject H-1B petitions on March 31, 2014. Employers should immediately begin identifying persons for whom H-1B sponsorship will be needed. This will allow sufficient time for petition preparation, including the time required to file and receive certification of the prerequisite Labor Condition Application (LCA). Thus, strategically strategizing the filing of H-1B Petition is a key to hiring an H-1B employee for the financial year beginning on October 1, 2014.

The H-1B Employer Must Exercise Sufficient Level of "Control" Over the Prospective H-1B Employee.

In order for the H-1B petition to be approved by United States Citizenship and Immigration Services (USCIS), Department of Homeland's agency responsible for adjudication of H-1B petitions, petitioning employer must establish that employer-employee relationship exists and will continue to exist with the employee throughout the duration of the requested H-1B validity period. Hiring a person to work in the United States requires more than merely paying the wage or placing that person on the payroll of the H-1B petitioning organization. In considering whether or not there is a valid "employer-employee relationship" for purposes of H-1B petition adjudication, USCIS must determine if the employer exercises a sufficient level of "control" over the prospective H-1B employee.

Thus, the prospective H-1B petitioner organization must be able to establish that it has the "right to control" when, where, and how the prospective H-1B nonimmigrant beneficiary will perform the professional and specialty occupation job and USCIS considers various factors in making such a determination (with no one of the following factors being decisive with regard to the issue of "control").

Both the Proffered Position and Prospective H-1B Employee Must Qualify for the H-1B.

Not only the prospective employee but both the proffered position and prospective employee should qualify for the H-1B visa. For a proffered position to qualify for H-1B visa, it must be a "specialty occupation". "Specialty occupation" is an occupation that requires: (1) theoretical and practical application of a body of highly specialized knowledge; and (2) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States.

The H-1B regulations further requires that a position also meet one of the following criteria, in order to qualify as a specialty occupation: 1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement for entry into the particular position; 2) The degree requirement is common to the industry in parallel positions among similar organizations, or, in the alternative, an employer may show that its particular position is so complex or unique that it can be performed only by an individual with a degree; 3) The employer normally requires a degree or its equivalent for the position; or 4) The nature of the specific duties are so specialized and complex that knowledge required to perform the duties is usually associated with the attainment of a baccalaureate or higher degree.

Therefore, reading the law and regulations together, in order to qualify as a "specialty occupation," a proffered position must 1) require theoretical and practical application of a body of highly specialized knowledge, 2) necessitate a bachelor's degree or higher in the specific specialty (or its equivalent) as a minimum for entry into the occupation, and 3) meet one of the four alternative criteria listed above.

For a prospective employee to qualify for the proffered H-1B position, regulations specify that s/he should have either one of the following: (1) Full state licensure to practice in the occupation (if required); (2) Completion of the degree required for the occupation; or (3) progressively responsible work experience in the specialty equivalent to the completion of such degree. Thus, a general degree absent specialized experience may be insufficient because there must be a showing of a degree in a specialized field.

The H-1B Filing Fee depends upon the Type and Size of H-1B Employer.

Besides legal fee, the employer needs to pay the USCIS filing fee. Remember there is no flat fee that every employer is required to pay. The amount of H-1B filing fee depends on the size and type of employer. All employers are required to pay the base filing fee of $325.00 for the H-1B petition. Additionally, pursuant to the American Competitiveness and Workforce Improvement Act (ACWIA), employers are required to pay an additional fee (commonly referred as ACWIA fee) of $750 or $1500 unless exempt under Part B of the H-1B Data Collection and Filing Fee Exemption Supplement.

Sponsoring employer is required to pay a fee of $750.00 if it employs 25 or fewer full-time equivalent employee. In all other cases, the employers need to pay $1500.00. Employers such as institution of higher education; nonprofit organization or entity related to, or affiliated with an institution of higher education; nonprofit research organization or governmental research organization, etc. are exempt from paying the ACWIA fee. Additionally, employers, either seeking initial approval of H-1B or seeking approval to employ H-1B nonimmigrant working for a different employer, must pay $500 Fraud Prevention and Detection fee as mandated by the H-1B Visa Reform Act of 2004.

Those H-1B employers required to submit the $500.00 Fraud Prevention and Detection fee are also required to submit $2,000.00 fee mandated by Public Law 111-230 if petitioners employ 50 or more employees in the United States; more than 50% of those employees are in H-1B or L nonimmigrant status; petition is filed before October 1, 2014. Further, either the employer or employee can pay an optional premium processing fee of $1,225.00 to expedite the adjudication of petition. Thus, the H-1B filing fee depends upon the size and type of employer and can range from $825.00 to $5,550.00.

Be Aware of the Salary and Costs to Be Paid by Prospective H-1B Employer.

Prospective employer must obtain a certification from Department of Labor ("DOL") that it has filed an LCA in the occupational specialty. The employer attests on the LCA that H-1B nonimmigrant worker will be paid wages which are at least the higher of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question OR the prevailing wage level for occupational classification in the area of intended employment. Thus, Congress has been careful to build in safeguards to the H-1B program to ensure that H-1B foreign professionals do not undercut wages paid to the comparable U.S. workers. Additionally, employers are required to pay the costs for the petition process.

The Employer's obligation to pay H-1B workers the required wages begins on the date on which the worker "enters into employment with the employer." The H-1B worker is considered to "enter into employment" when he first makes himself available to work or otherwise comes under the control of the employer. Alternatively, even if the worker has not yet "entered into employment," where the worker is present in the U.S. on the date of the approval of the H-1B petition, the employer shall pay to the worker the required wage beginning 60 days after the date the worker becomes eligible to work for the employer. The H-1B worker becomes eligible to work for employer on the date set forth in the approved H-1B petition filed by the employer.

An employer must continue to pay an H-1B employee who is not working due to a nonproductive status at the direction of the employer (e.g., benching because of lack of work, lack of a permit or license). Thus, employer is liable for nonproductive time as well as productive time once employee becomes eligible for work. Furthermore, if the H-1B employee is terminated prior to the end of the period of admission, the employer is liable for "the reasonable costs of return transportation of the alien abroad

Note the Key Compliance Issues: Posting Notice of LCA & Maintaining Public Access files - Employers Beware of the H-1B Audit and H-1B Site Visit.

Notice of the LCA must be posted, or where there is a union it must be given to the union before filing the LCA. The notice may be the LCA itself or a document of sufficient size and visibility that indicates: (1) that H-1Bs are sought; (2) the number of H-1Bs; (3) the occupational classification; (4) the wages offered; (5) the period of employment; (6) the location(s) at which the H-1Bs will be employed; and (7) that the LCA is available for public inspection. The notice should state where complaints may be filed. Notice must be posted "in a least two conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed" and the notice "shall be posted on or within 30 days before the date the labor condition application is filed and shall remain posted for a total of 10 days.

Notice may be posted in areas where wage and hour and OSHA notices are posted. An employer may also provide electronic notice to employees in the "occupational classification" for which H-1Bs are sought, through any means it normally communicates with employees including a home page, electronic bulletin board or e-mail. If accomplished through e-mail it need only be sent once; other electronic forms (e.g., home page) should be "posted" for 10 days. Notices must be posted at each worksite including ones not originally contemplated at the time of filing but which are within the area of intended employment listed on the LCA.

Additionally, an employer must maintain a public access file accessible to interested and aggrieved parties. The public access file must be available at either the employer's principal place of business or at the worksite. An interested party is one that has "notified the DOL of his or her/its interest or concern in the administrator's determination."

The public access file must be available within one day after the LCA is filed with all supporting documentation including: A copy of the completed LCA; Documentation which provides the wage rate to be paid; A full, clear explanation of the system used to set the "actual wage"; A copy of the documentation used to establish the prevailing wage; Copy of the notice given to the union/employees; and A summary of the benefits offered to U.S. workers in the same occupational classification, and if there are differences, a statement as to how differentiation in benefits is made (without divulging proprietary information).

This article is Part I in a series of VIII that will provide helpful and basic information to employers considering the use of the H-1B for an employee. For any additional H-1B information or for information about options for avoiding the H-1B cap, please feel free to contact the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. at info@visaserve.com or by calling our offices at 201-670-0006 (x107). Our highly qualified immigration lawyers and immigration attorneys stand ready to assist employers with the H-1B nonimmigrant visa process.

RECENT IMPORTANT CHANGES TO NAFTA FOR MEXICAN PROFESSIONALS. | Bergen County Employment Immigration Lawyers | Ridgewood Citizenship Law Firm

The Department of State (DOS) recently amended its regulation pertaining to The North American Free Trade Agreement (NAFTA), by removing the petition requirement for Citizens of Mexico applying for nonimmigrant TN classification as NAFTA professionals. The rule reflects changes to the documentary and procedural requirements under the Immigration and Nationality Act, in implementation of NAFTA.

The rule is effective on February 10th, 2014. A citizen of Mexico wishing to come to the United States in TN classification no longer needs an approved petition to meet the qualification requirements, but may apply directly to the U.S. Embassy or Consulate abroad for a visa. The Consular Officer will adjudicate the eligibility for TN classification and, upon approval and issuance of a visa, the applicant may apply to the Department of Homeland Security for admission to the United States under TN classification.

A Citizen from Canada or Mexico may apply for TN (Trade NAFTA) status if he or she qualifies as a "professional." The specified profession must be listed on the Annex of the North American Free Trade Agreement. The dependent spouse can apply for TD status to accompany the TN professional. The initial period of permissible stay in the U.S. is generally 3 years. There are unlimited extensions available.

In order to be classified as a "professional," individuals must have at least a bachelor's degree or a license as required by their profession. If the applicant does not have a bachelor's decree or license, a combination of experience and education will not be accepted. As indicated by the list set forth in the NAFTA , certain professions such as librarians require an advanced degree beyond a bachelor's degree.

On the other hand, "management consultants" are required to have either a bachelor's degree or "five years of experience in consulting or related field." A management consultant should generally not be a regular, full-time, employee of the company sponsoring the alien. According to the FTA (Free Trade Agreement), management consultants should be (1) independent consultants coming to the U.S. to render services to an American employer for a particular project; or (2) employees of consulting firms under contract to a U.S. business to render services; or (3) employees of U.S. companies hired for special projects as opposed to an existing position or a newly-created permanent position.

If the management consultant falls into the third category, he/she must satisfy the Officer that his/her position is temporary. The TN classification is not a "dual intent" classification. Generally, management consultants provide services that are intended to improve the managerial, operating, and economic performance of public and private entities by analyzing and resolving strategic and operating problems and thereby improving the entity's goals, objectives, policies, strategies, administration, organization, or operation.

TN professionals, as opposed to business persons and professionals listed in the "general service" business visitor category (who must be paid by an overseas source), are permitted to be employed and compensated in the United States by an American organization. The List of Professionals does not include athletes and entertainers. It should be noted that individuals who are self-employed are subject to very strict rules which limit the circumstances in which they may obtain TN classification.

For additional information about TN classification as a professional from either Canada or Mexico under the TN Annex 1603.d.1, please feel free to contact the U.S. and Canadian immigration lawyers and immigration attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. - THE IMMIGRATION LAWYERS AT VISASERVE - at info@visaserve.com or by calling our office at 201-670-0006 (x107).

Inside immigration’s “black box” on marriages

Inside immigration’s “black box” on marriages




With marriage of convenience being
Ottawa's catchphrase on the abuse of the immigration system in recent
years, Canada has tightened sponsorship rules by making permanent
residence conditional upon a couple living together for two years and
banning the sponsored spouse from sponsoring another partner within five
years. 

South Jersey fears foreign-labor visas in jeopardy - pressofAtlanticCity.com: Business

South Jersey fears foreign-labor visas in jeopardy - pressofAtlanticCity.com: Business



The U.S. Senate passed a bill in July that makes it illegal for sponsors
to lie to students about the available jobs, fees and costs in their
promotional or recruiting materials. It also imposes limits on how much
these sponsor groups can charge students in fees and requires the
sponsors to post a bond to help the students get back home if their
employer or employment situation turns out to be exploitative.