Employers and HR

DHS proposes Safe-Harbor Procedures for Employers Who Receive a No-Match Letter

[Federal Register: August 19, 2009 (Volume 74, Number 159)]
[Proposed Rules]
[Page 41801-41805]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19au09-9]

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Proposed Rules

Federal Register

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USCIS Explains Employment-Related Notification Requirements for Petitioners of Religious Workers

U.S. Citizenship and Immigration Services (USCIS) announced today the manner in which petitioners for religious workers must notify USCIS regarding their employment of nonimmigrant religious workers in R-1 status.  The procedures are necessary to enable petitioners to comply with the notification requirements established by USCIS regulations governing the R-1 nonimmigrant classification. 

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Compensation for H-1 lay off

My friend is working for NASDAQ listed company in US. We were in a discussion about the compensation details available for H1B employee if the company does a lay-off and he is affected due to it. He is on end of his 6th year and just got his 7th year extension. If something like that happen(not that it should happen) but if that happen what are the compensation he is entitled to get from the company, apart from 2 weeks pay.

There is no special protection of compensation under H-1 laws once employment is terminated. Under immigration laws, the employer is required only pay for a one-way ticket back to your home country. The protection, if any, comes from employment contracts.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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"Proving Existence of a Job for H-1 B" published by "The Practical Lawyer", American Law Institute, American Bar Association Publication

Please see the attached article, "Proving Existence of a Job for H-1 B" authored by Rajiv  and published by American Law Institute- American Bar Association, October 2009 issue of  "The Practical Lawyer".


 





 


 


 

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Status, authorized period of stay and unlawful presence

Status, authorized period of stay and unlawful presence are three VERY important concepts in US immigration laws with far reaching implications. The nuances in these concepts are so intricate that they can trip up even my fellow-lawyers. I see issues in this all the time.

Here is a brief primier to enable you to understand the basics. This is by no means an exhaustive analysis.

Status

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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H-1 without specific job/GC continuation without H-1


1. I don't have a work order or client letter to support my H1B extension which is expiring on 2nd June. Is it legally not allowed to file for H1B extension without this or to avoid RFE one need to support extension with this.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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New H-1 employee returning -- rights and issues

Our employee XYZ has arrived in the US. However, it appears that because of the job market in the US, he is going to return home to his old job. I know you said they are allowed to return back to USA at a later date if they choose to work for us down the road. But my question is how long may he stay without getting paid until he must return home? I know you sent me information about benching, stating: Q. What is the law regarding the benching of H-1 holding employees? A. The law does NOT permit benching without full salary payment by the employer. The only exception is that when an employer first hires an employee on H-1B they are allowed an initial period of 30 or 60 days during which the employee does not have to be paid while on bench. i. If the employee is currently in USA and adjusts status or transfers from one employer to another within USA - the bench-without-pay period is 60 days from the date of approval of the petition by INS. ii. If the employee is entering USA from abroad, the period is 30 days from the date of entry into USA. If I'm interpreting this correctly, we must pay him no later than day 30 of his arrival here in the USA?

There are a couple of issues I want to clarify. The period of payment begins on the earlier of the two events: when the employee presents himself/herself for the job or 30/60 days. DOL considers it to be irrefutable evidence of having reported when a consulting company starts "marketing" the resume (Note also that to bring an employee in without a project has been elevated by this administration to be an indictable offense, which I think is unlikely to stand up in courts).

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Unreasonable H-1 requests from CIS

USCIS now wants consulting companies to provide tax information on their clients. This is gross over-reaching in my view. Here is an excerpt from an RFE we received last week:

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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Employers and Employees -- H-1 or EAD?

Considering that the economy is not doing that good and sometimes projects get over and consultants go on "bench" without any clients kinda situation, this is something not that uncommon. Related to this, as being on a H1B requires me to maintain the LCA salary as mentioned on my W2, would switching to EAD with my sponsoring employer help with getting away from this restriction? Does that also mean that if I don't get paid by my employer for a certain period and I am on an EAD, there is no issue with my GC/status at all as there is no H1B. Just trying to find out what the possible advantages would be at this time with EAD.

 There are two situations to analyze here: being benched and getting paid a lower salary. Both of them have problematic implications for employers and employees.

Here is what concerns me. As far as I know, it has never been done so far, but the possible consequences of being benched are that the I-485 can be denied and (POSSIBLY, but there are strong arguments against it) I-140 could be revoked if already approved. If I-140 is not approved, USCIS could easily deny the I-140.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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H-1 Compliance: Wage Source; Exempt Employees; Posting; Starting Payroll; SSN; When to amend

1. Is it advisable or compulsory to get the prevailing wage determination from the states or Online Wage Library is enough at the time of taking LCA? Because most of the time we are taking the LCAs for the job titles like: Software Engineer, Programmer Analyst and System Analyst for which the wage determination available in the online wage library.

Ans. OES wages can be used as long as the correct job category and job level are used. Applying for prevailing wages from the govt. is time consuming, but does have the benefit of being almost beyond question in case of an audit.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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