New Year Reminders for Employers: Part 1

With the arrival of the 2011 New Year, as in the past, MurthyDotCom and MurthyBulletin readers have been provided with a series of immigration reminders. Following are suggestions for employers regarding some immigration-related documents and issues they should review as the New Year begins. Some of these matters apply to all employers, while others are applicable solely to those who sponsor foreign national employees for immigration benefits. A number of these issues have been addressed in more detail in previous articles, available on MurthyDotCom. A semi-annual review of these matters can help employers correct existing immigration compliance deficiencies, if they exist, and avoid potentially serious and costly problems in 2011. A discussion of the need to have valid labor condition applications (LCAs) and to document terminations for H1B workers follows, for the benefit of our readers.

Labor Condition Applications

Employers should audit their U.S. Department of Labor (DOL) LCAs periodically for H1B temporary professional workers. The year’s end is an excellent time for employers to double-check that they have a current, unexpired LCA for each H1B worker. This LCA should be retained in the H1B public access file (PAF), and must reflect the H1B worker’s current work location and position. Multiple work locations may require approval of multiple LCAs.

Most changes in the work location of an H1B worker require at least the re-posting of the original LCA filing (if the new work location is in the same metropolitan statistical area or MSA) at the new work location in two conspicuous locations. If the new worksite is not in the MSA covered by the LCAs, then the employer must obtain certification of a new LCA for that location and comply with the applicable DOL posting regulations.

Relocations may trigger the need to file an amended H1B petition, if there has been a material change in the terms and conditions of employment, or changes that affect eligibility for H1B status. The potential need to amend the H1B petition can be a complex issue, and is outside the scope of this article. Questions regarding such matters should be discussed in consultation with a qualified immigration attorney.

Terminated H1B Employees and No-Shows

Employers of H1B workers are obligated to alert the U.S. Citizenship and Immigration Services (USCIS) when a sponsored H1B employee fails to report for work, quits, or is terminated from employment during the validity period of the H1B status reflected in the I-94 card and H1B approval notice (I-797). The risk is that, if the H1B employment terminates (or is never initiated), the employer may still be responsible for payment of wages, if the employer does not promptly notify USCIS and achieve a bona fide termination. If there is not a proper employment termination, the DOL may find that the employer owes the H1B worker back wages until such time as a bona fide termination is achieved.

Generally, an employer must notify the H1B worker in writing that s/he is terminated, and notify the USCIS of this termination in writing. If the H1B employee is involuntarily terminated before the expiration of the H1B petition, the employer must pay the reasonable return transportation costs for the terminated employee (not including his/her family or personal property). If the H1B worker resigns from the employment (such as to join a new employer in the United States), then the employer does not have to pay transportation expenses. Employers should take the time to review their human resources files and PAFs to see if there are any individuals for whom they sponsored H1B petitions who are no longer affiliated with the company. If so, the employer should review the files to make sure that the proof of termination is in order. A discussion of these matters was included in our news article, H1B Employee Termination: Employer Concerns (06.Feb.2009).

Conclusion

As one year ends and another begins, it is a good time to tie up loose ends and establish proper procedures for the New Year. Employers of H1B workers can avoid potential problems by checking H1B LCAs and employee termination documentation. If deficiencies are found, in addition to taking the necessary corrective steps after-the-fact, employers should establish safeguards and procedures to avoid future noncompliance.