HR Liaisons Meeting August 19,2010
Agenda • Welcome • Tri-Rail Employer Discount Program • Benefits Update • Immigration Basics: H-1B Visas • Other Updates • Wrap Up
Tri-Rail Employer Discount Program
Tri-Rail Discount •
Effective immediately, employees may take advantage of the TriRail Employer Discount Program
FIU employees receive a 25% discount on monthly or 12-trip tickets
Tri-Rail Offers: •
A relaxed commute in air-conditioned comfort
Convenient ticket purchasing at all train stations
Free parking and easy connections to Metrorail and Metromover
Access to the Emergency Ride Home Program, which provides free taxi service in an emergency situation to those registered with South Florida Tri-Rail’s EDP
Access the online EDP member application by visiting www.trirail.com and clicking on “Programs”
Benefits Update Adoption Benefits Program • Effective July 1, 2010, the Florida Legislature passed House Bill 5305 that removed Adoption Benefits Program from Florida Statutes Open Enrollment • Open Enrollment begins on Monday, September 27 and ends on Friday, October 22 • In preparation, please ask faculty and staff in your area to visit http://hr.fiu.edu/uploads/Mail/08_16_2010/Preparing_for_O pen_%20Enrollment.pdf • Guide provides information on how to verify your mailing address, access PeopleFirst and upcoming “Understanding Your Benefits” workshops
Immigration Basics: Overview of Procedures and Obligations for Employers Part 1: Nonimmigrant Visas Fragomen, Del Rey, Bernsen & Loewy, LLP
Aaron M. Blumberg Associate Fragomen, Del Rey, Bernsen & Loewy, LLP One Alhambra Plaza Suite 600 Miami, Florida 33134 Telephone: (305) 774-5800 Fax: (305) 774-5800 E-Mail: [email protected]
3 Categories of People in the U.S. - Citizens - Immigrants - Nonimmigrants
Nonimmigrants Coming to the U.S. temporarily
Retain residence abroad Dual intent - only for H’s and L’s “Alphabet Soup” - A-V Important Visas to Know: H-1B, TN, E-3, F-1, J-1 Immigrants vs. nonimmigrants
Immigrants “Green card holders” = “permanent residents” = “immigrants” Coming to U.S. permanently Numerically limited - Visa bulletin - Priority date
Can become U.S. citizens after 3 - 5 years
Understanding the Documents
I-94 (Expiration Date)
I-797 Approval Notice & I-94 Card
H-1B Work Visa
H-1B Category: USCIS Provisions H-1B visas are for temporary (nonimmigrant) workers engaged in a specialty occupation that requires (1) theoretical and practical application of highly specialized knowledge and (2) attainment of a bachelor's or higher degree, or equivalent experience, in the specific specialty for entry into the occupation. “Specialty Occupation” -- Entry level requirement = minimum Bachelor Degree or equivalent 3 for 1 rule -- 3 yrs. experience = 1 yr. of college
Labor Condition Application (LCA) certified prior to filing petition Six-year maximum stay (can extend under certain circumstances - AC-21) 65,000 annual ceiling, of which 6,800 are set aside for citizens of Chile and Singapore 20,000 additional visas allocated to holders of advanced degrees from U.S. universities
H-1B (continued) Reasonable costs of return transportation for dismissed employee Cap Subject vs. Cap Exempt - Cap Subject: File on 4/1 for a start date of 10/1 - Cap Exempt: File at any time
Find out who sponsors H-1Bs: http://www.myvisajobs.com/
What are the government fees? ($320, $500, $750/$1500); What are standard legal fees?
H-1B (continued) H-1B visas are valid for 3 years and can be extended for an additional 3 year period for a total of 6 years in H-1 status. Previous stays in L-1 or H-1 status (but not L-2 or H-4 dependent status) count towards maximum period of stay. (See later slide on Calculating Max Stay.) H-1B visas can be extended past the 6-year maximum in certain situations.
Cap Gap Automatic Extension
Automatic Extension of your OPT work authorization to September 30th: This happens if your approved OPT end date (on your EAD card) is April 1st, 2009 or later. - For example: if your OPT ended on or before March 31st, you would not be eligible for extension of work authorization until September 30th, 2009. However, you would be allowed to stay in the US if you otherwise maintain your status.
Extension of your F-1 “duration of status.” This happens if your OPT had expired before April 1st, 2009. Again, you would be allowed to stay in the US if you otherwise maintain your F-1 status, but you are not authorized to work until the H-1b petition is approved and goes into effect October 1st, 2009.
Eligibility: - H-1B petition has been timely filed (within the acceptance period) - Requests an employment start date of October 1st - Requests a change of status
Beware of international travel during the cap gap!!
Labor Condition Application (LCA) Obligations
Procedural Requirements of the LCA
The U.S. employer must file a Labor Condition Application (LCA) with the Department of Labor. The employer must attest to certain things in the LCA, such as paying the FN at or above the prevailing wage for the position.
U.S. employer must post the LCA and, within 24 hours after filing, must include the LCA and other documentation in a public access file.
After the LCA, the employer must file an H-1B visa petition with USCIS. On the USCIS petition, the employer must show that job offered is professional and that there is a nexus between foreign national’s credentials and the position offered.
General Requirements LCA required for every H-1B petition and all H-1B1 & E-3 applications
Purpose – to protect wages and working conditions of U.S. workers Employer makes attestations on LCA 10 day posting requirement at work site (2 locations)
LCA form filed electronically with DOL Public Access File (PAF) created and maintained within 24 hours of filing LCA Copy of LCA provided to employee on/or before 1st day of employment.
Information Needed to Prepare the LCA
Minimum requirements for the position
LCA Attestations All employers must attest: Working conditions of U.S. workers will not be adversely affected There is no strike or lockout H-1B workers will be paid the higher of the prevailing or actual wage Notice has been provided to all employees
Wages Actual Wage
paid by the employer to US workers in the same position at the same work site with similar experience and qualifications
Prevailing Wage State Workforce Agency (SWA) Published survey Other source
Required Wage – higher of the actual or prevailing (must meet 100% of prevailing)
Prevailing Wage Determine Prevailing Wage Source Must be for area within commuting distance Use weighted average (mean) or median
Employer must pay at least 100% of prevailing wage
Fringe Benefits Same benefits as “similarly situated” US workers “Multi-national” H-1B worker may stay on “home country” benefits plan, if: - in US less than 90 consecutive days; - if greater than 90 days - reciprocal treatment for US expatriates, employed abroad, foreign benefits are comparable, US health coverage, same “direct benefits”
Documented in Public Access File
Public Access File (PAF) To be maintained by employer For every LCA Retain for 1 year from expiration of LCA or withdrawal of LCA
Must be available for inspection by anyone Must be created within one working day after the filing of the LCA
Required Documents for the PAF 1.
Copy of signed approved LCA
Statement of actual wage (Handout 6)
Explanation of actual wage system (Handout 7)
Copy of document used to establish the prevailing wage
Posting confirmation (Handouts 8 & 9) -
electronic or manual posting
Required Documents for the PAF (cont’d) 6.
Summary of benefits *
Cover pages 9035CP *
If change in corporate structure, sworn statement * may be placed in a Master File
LCA penalties Assessment of back wages Civil fines of $1,000 - $35,000 Debarment from receiving approval for nonimmigrant and immigrant petitions for 1-3 years Debarment from filing labor certifications or LCAs for 1-3 years
Fragomen Specific Policies and Procedures
How to Process an H-1B
The IHP (Immigration Home Page)
The Dept must obtain authorization from HR to proceed with the sponsorship
The Dept and/or HR MUST initiate a case online on the IHP (https://fiu.fdbl.com/) by completing the “Nonimmigrant Visa Employer Questionnaire”
Once we get the employer questionnaire, we contact the employee to complete the employee questionnaire
We cannot begin working on a case until we have the completed Employer and Employee questionnaires.
When Should I Initiate a Case? THE EARLIER THE BETTER! Recommended: Initiate Cases 6-8 months in advance BUT, do not issue filing fee checks right away
Fragomen Rush Fees vs. USCIS Premium Processing Fees Fragomen Rush Fee = $735 The Fragomen Rush Fee must be paid when a case needs to be FILED within 60 days
USCIS Premium Processing Fee = $1000 Normal USCIS Processing Time = 3 months Premium Processing = 15 calendar days
When is Premium Processing NOT Needed? Premium Processing is almost never NEEDED for a change of employer or extension of H-1B status Change of Employer = Employee is currently working for another employer in H-1B status - We can only file a change of employer if the employee has not been out of work for more than 30 days -
Example: Employee stops working for Company A on 7/10/2010; it is now 8/19/2010 and we want this person to start working ASAP. This person must depart the US and apply for the H-1B visa abroad, change of employer is not allowed in this situation
Extension of Status: As long as the extension petition is filed BEFORE the current H-1B expires, the employee is authorized to work pursuant to their receipt notice for up to 240 days
When is Premium Processing Sometimes Needed? Change of Status: Most common is changing from F-1 or J-1 to H-1B; employee cannot start working until petition is APPROVED Consular Notification: When the employee is abroad - Please factor in added delays such as scheduling a visa appointment and getting the visa stamp
Who Pays for Premium Processing? Employer: When the University needs the individual to start working immediately Employee: When the employee wants the approval so that they can travel or for piece of mind
Prevailing Wages Two ways to get PW: Through Dept of Labor OR through FLC Data Center (website) DOL Wages: DOL will issue a wage by going on FLC Data Center themselves and finding the appropriate job code and wage level SAFE HARBOR
When we get the wage on our own, we run the risk of creating liability for the University Wages for Professors are straight forward and do not require DOL assistance
Wages for Computer and Administrative Jobs should be sent to DOL for their wage determination
Actual Wage Memo & Form Should be completed and submitted along with questionnaire We need to demonstrate that the University is paying H-1B employees at least, if not more, than all other similarly situated employees
University Actual Wage Form Please complete this form for all others in the Department/Division/Center with the same classification as the H-1B employee. Name
Employee ID #
Date Started at University
Date Started in New Position
Contract Length 9/12
Year Institution Degree where Highest Earned Degree Earned
Florida International University
University of Miami
65874 Marilyn Monto John Stuck
Miami Dade College
Computer 01/19/2009 N/A 12 $48,200 BA 2008 Florida Systems International Analyst University The salary of the prospective/current H-1B employee has been determined by comparing the education, experience, specialized knowledge and other relevant factors with those for all other persons in the same job classification within the Department/Division/Center.
Printed Name and Title
Public Access File
From: Kenneth G. Furton, Dean of the College of Arts & Sciences Re:
Actual Wage Memorandum for Manny Delcarmen
Date: August 19, 2010 As indicated by the attached Actual Wage Form, in addition to Manny Delcarmen, there are three other Computer Programmers in the College of Arts & Sciences. Two of those employees earn a higher salary as they both have more years of experience in the field and one of them holds a Master’s Degree. The reason that Manny Delcarmen’s salary is lower is because he just recently obtained his Bachelor’s Degree and has only 1 year of work experience.
Offering Jobs to Potential H-1Bs Make it clear that the job offer is contingent upon obtaining valid work authorization NEVER promise someone an H-1B! H-1B prevailing wages have increased significantly this year H-1B denials have increased as well Think about H-1B sponsorship when you hire someone on OPT
Additional H-1B Issues
Maximizing H‐1B Time: 1 year Extension: If PERM has been filed at least 365 days prior to the date the H‐1B expires [AC 21 §106(a)]
3 year Extension: If an I‐140 has been approved, and the individual cannot adjust status due to visa retrogression (usually someone from China or India) [AC 21 §104(c)]
No “Benching” H-1B Workers Must start payroll when H-1B “enters into employment”, i.e., when he/she first makes him/herself available for work or comes under control of employer but no later than 30 days after entering US or If in US, 60 days after start date on petition or change of status by USCIS, whichever is later No exception where awaiting license No unpaid status due to lack of work Unpaid leave OK if: H-1B unable to work Worker’s voluntary request
H-1B Portability Enables nonimmigrants currently in H-1B status to begin new employment upon USCIS receipt of an H-1B petition by new employer. Though there is no official guidance, time from termination of earlier employment to filing of new petition should be minimal (usually less than 30 days). Eligibility Requirements Must have been lawfully admitted into the U.S No unauthorized employment subsequent to lawful admission Non-frivolous H-1B petition must be filed for new employment before expiration of current status
Don’t forget – porting from cap-exempt nonprofit to a for-profit employer means that the foreign national is submit to the H-1B cap.
H-1B Portability (continued) • Employment Guidelines - LCA should be certified before employee starts work - Permissible for employee to start on day USCIS received H1B petition - If H-1B petition denied, employee must be taken off payroll and stop work immediately
H-1B Portability (continued) Travel Considerations: If employee must travel, he/she must carry: - Valid unexpired passport - Previously issued H-1B visa stamp (except Canadians) - H-1B receipt notice (if available) or other evidence of timely filing that can be validated through a query in USCIS CLAIMS System - Copy of previously issued Form I-94
Terminated H-1B Employees When are they out of status? Is there a “grace period?” Technically out of status upon last day of actual productive employment In practice, USCIS provides “reasonable time” to file change of status or new employer petition after termination of employment Is changing to B-2 status an option? Employers must offer to pay principal’s transportation costs home (preferably in writing at the time of termination)
Other Temporary Work Visas
E-3 Visa for Australian Nationals Visa category for citizens of Australia to take up professional positions in the U.S. – 10,500 per year available Job offered must be for a “specialty occupation” as defined for H-1B visa category Requires certified LCA
Visas can be applied for at consulates without prior USCIS approval Filings can be submitted to USCIS, but premium processing is not available 2-year validity; renewable indefinitely Dependent spouses may apply for employment authorization
TN Category for Canadian and Mexican Professionals Must be nationals of either Canada or Mexico Coming to U.S. to work in profession listed on NAFTA schedule Generally require a Bachelors degree in field Canadians apply at border (non-national dependents must obtain visa at U.S. Consulate) Mexicans apply at Consulate Three year stay, renewable in three year increments Extensions and changes of status may be filed at USCIS Service Center
Managing Immigration in an Economic Downturn
Impact of Termination on Nonimmigrant Visa Status Options available to terminated employees Depart U.S. Change of status to another visa classification Secure position with another U.S. based employer
Timing No “grace period” in the Regulations Unlawful presence issues Withdrawal of petition
Particular considerations for H-1B employees LCA issues Return transportation
Impact of Changes in Conditions of Employment on Nonimmigrant Visa Status Benching Changes in compensation Changes in position Changes in job location Position remains in U.S. Position located abroad
Thank You! If you have additional questions, please send me an email: [email protected]
This presentation is not intended to be construed as legal advice.
Other Updates • Faculty under- and over-payment issue have been addressed from the employee perspective • Payroll is now focused on processing payroll transfers for the department/projects impacted • Salary Encumbrances will be rolled out in the next few months • ALA Expiration Reports will be e-mailed in the next several weeks for your review and action • Additional information is forthcoming
• The Bonus Policy is now available at http://policies.fiu.edu/files/734.pdf
Upcoming Events/Deadlines Event Staff Senate Survey Deadline to Respond
Date/Time Tuesday, August 24
HR Customer Service Survey Deadline to Respond
Friday, August 27
PEP Forms Due
Division of Human Resources
Monday, August 30
Benefits Open Enrollment
Monday, September 27 to Friday, October 22
Questions or Comments?