On April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) should again be open for business for a flood of H-1B petition filings, which are subject to the annual cap. Employers are required to pay the higher of the actual or prevailing wage for the area of intended employment to sponsor an H-1B specialty occupation visa. Last year, USCIS received enough petitions (199,000) to meet the numeric cap (85,000) on April 7, 2017.
Based on developments which followed the execution of the “Buy American, Hire American” (BAHA) Executive Order (EO) on April 18, 2017, both employers and employees have a new list of compliance considerations to review as part and parcel of their H-1B petition process.
One of the key considerations is tied to increased oversight of submissions by an H-1B visa applicant and the petitioning employer with the various applicable branches of government. Stove-piped legal representation is not advisable. (e.g., only focusing on one agency segment or one portion of a filing process) While USCIS still struggles with its transformation project to achieve electronic filing for its petitions, attorneys and employers must make sure that representations made to USCIS and to the Department of Labor (DOL) in the petition process are also being addressed with any Department of State (DOS) consular visa application, which is also an adjudicative process. In addition, employers must be ready for increased site visits as well as inquiries from federal agencies regarding ongoing compliance with terms stated in visa applications and petitions. Just as employers must prepare for increased Form I-9 form compliance visits,  they must be equally ready for visa/petition based agency oversight visits or inquiries as to compliance with visa/petition representations.  Immigration Customs and Enforcement (ICE) Director Thomas Homan announced on October 17, that he planned to increase I-9 form worksite compliance operations by four to five times.
For more information on the background and history that have led to this point as well as a sample of typical compliance questions, please click here.
Some Must Dos:
- Employers should conduct an internal compliance audit to make sure that they have procedures in place to monitor that the terms of the nonimmigrant visa as to location, duties, and compensation remain unchanged.
- Employees should be a part of the compliance process and must know the scope of their authorized duties and the locations authorized. Reporting to human resources regarding possible changes must be encouraged.
- Any communications with compliance agents from the government should be documented and addressed by those with training and responsibility as to compliance with the nonimmigrant visa requirements.
- Each interaction with an agency, whether USCIS, DOL, or DOS should be treated as an adjudication. (There is no just going to get a stamp at the consulate.) It is critical that benefit applicants and their employers be prepared for compliance related questions. A visit with competent legal counsel should also be on the list.
About the author:
Kathleen Campbell Walker is a prior national president and general counsel to the American Immigration Lawyers Association. She has practiced business immigration law for more than thirty years. She is one of 11 lawyers in the United States ranked in Band One by the Chambers and Partners independent lawyer ranking service in its Global Guide. She may be reached in our El Paso, TX office at 915-541-9360 and you may view Kathleen’s bio here.