HR Liaisons Meeting
September 16, 2010
Agenda
• Introduction
• Homecoming Parade Guidelines
• Non-Exempt v. Exempt
• In-Unit v. Out-of-Unit
• Immigration Basics: Immigrant Visas
• Wrap-Up
Homecoming Parade
Guidelines
Non-Exempt v. Exempt
Authority – United States
Department of Labor
Fair Labor Standards Act of 1938 (FLSA) as amended.
Revised on April 20, 2004; Compliance by August 23,
2004.
•
The FLSA establishes the minimum wage, overtime pay, recordkeeping,
and youth employment standards affecting employees in the private sector
and in Federal, State, and local governments.
•
Covered non-exempt workers are entitled to the minimum wage. The
federal minimum wage effective July 24, 2009 is $7.25 per hour.
•
For non-exempt employees, overtime pay at a rate of one and one-half
times the regular rate of pay is required after 40 hours of work in a
workweek.
Non-Exempt Employees
•
A non-exempt employee is subject to the provisions of the Fair Labor
Standards Act (FLSA).
•
A position is designated non-exempt based on the job duties
performed and the salary level. Generally, non-exempt employees’ work
is performed with set standards and rules. Examples of non-exempt
positions may include: bank teller, bookkeeper, and shipping/receiving
clerk.
•
Other example includes workers who perform work involving repetitive
operations with their hands, skill and energy. Skills and knowledge
usually gained through apprenticeship or on the job training. Employees
in production, construction, maintenance, carpenters, electricians,
mechanics, practical engineers, plumbers, and craftsmen are nonexempt regardless of salary.
Non-Exempt Employees
Salary Threshold – If an employee earns less than $455 per
week ($23,660 per year), the position qualifies for overtime pay
(is considered non-exempt), regardless of the duties performed.
Overtime for Non-Exempt
Employees
 Record ALL hours worked in the ADP System including any hours
actually worked in excess of 40 hours in a workweek
 All overtime (OT) must be authorized by the immediate supervisor
prior to working
 OT pay is calculated at 1½ times employee’s hourly rate for all hours
actually worked in excess of 40 hours in a workweek
 Compensatory time may be earned in lieu of OT pay at the rate of
1½ times the number of hours worked
Violation
 Not inputting all hours in ADP – instead have separate recordkeeping
 Not paying or providing appropriate compensatory time
Exempt Employees
 Regulation identifies and excludes certain worker from FSLA coverage.
To qualify for an exemption, employees must meet tests regarding job
duties and be paid on a salary basis not less than $455 per week/$23,660
annual. The exemptions are:
• Executive
• Administrative
• Professional - Learned Professional or Creative Professional
• Highly Compensated employees
 Employees in exempt positions get paid the same amount every
workweek regardless of the hours they work
 Required to record leave
 Departments should not allow flex hours to compensate for “extra”
hours worked
Exempt Employees
Exemption from minimum wage and overtime provisions of FLSA are
for employees employed as bona-fide executive, administrative,
professional and highly compensated employees.
Executive
• Primary duty is managing an enterprise, department or division.
• Direct the work of 2 or more full time employees.
• Authority to hire, fire employees or their recommendations regarding
employment status of subordinates are given particular weight.
Administrative
• Primary duty must be performance of office or non-manual work
directly related to the management or general business operations of
the employer or employer’s customer.
• Includes the exercise of discretion and independent judgment with
respect to matters of significance.
Exempt Employees
Professional – Learned
• Primary duty is performance of work that requires advance
knowledge, intellectual in character requiring exercise of discretion
and judgment, acquire through prolonged course of study,
• The advance knowledge must be in a field of science and learning,
• Must be of a type customarily acquired through a prolonged course of
specialized instruction.
Professional – Creative
• Primary duty must be the performance of work requiring invention,
imagination, originality, or talent in a recognized field of artistic or
creative endeavor.
Highly Compensated
• Performs office and non-manual work.
• Paid $100,000 or more.
• Customarily and regularly perform at least one of the duties of an
exempt executive, professional, or administrative employee.
In-Unit v. Out-of-Unit
In-Unit Employees
 Various groups of employees at the University are
represented for the purpose of collective bargaining by unions
with respect to wages, hours, and terms and conditions of
employment. Each union has a bargaining agreement that
outlines these terms.
 Unions that represent groups of faculty and staff at FIU are
AFSCME, PBA, PBA Lt., SEIU, and UFF.
 Faculty and Staff may be covered by a bargaining unit, even
if he/she is not a dues-paying members of the union.
Out-of-Unit Employees
 Groups of employees at the University not represented for the
purpose of collective bargaining by unions with respect to
wages, hours, and terms and conditions of employment.
 The Public Employee Relations Commission may determine
that a position is excluded from a bargaining unit, even if the
classification is generally covered by the unit.
Excluded are positions designated as managerial, confidential,
or temporary.
Immigration Basics:
Overview of Procedures and
Obligations for Employers
Part 2: Immigrant 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: ablumberg@fragomen.com
Immigration Overview
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
Visa Stamp
I-94 (D/S)
I-94 (Expiration Date)
I-797
Approval
Notice &
I-94 Card
I-20 (F)
DS-2019 (J)
Form I-9
Permanent Residence
Overview
How to Get a Green Card
 Family
 Work
 Diversity Lottery
 Asylum
 Special Legislation
Employment-Based Permanent
Residence: 2/3-Step Process
 Labor certification (where required)
 filed by employer on behalf of foreign national
 processed under PERM system
 Immigrant preference petition
 filed by employer
 processed by USCIS
 Adjustment of status or consular processing
 filed by the foreign national & family members
Employment-Based Categories
• EB-1: Priority workers
• EB-2: Advance-degree professionals & aliens of
exceptional ability*
• EB-3: Professional, skilled & unskilled workers*
(* labor certification required)
EB-1: Priority Workers
 Persons of extraordinary ability
(similar to the O-1 nonimmigrant category)
 Outstanding professors & researchers
 Multinational executives/managers
 Labor certification not required
EB-2: Advanced-Degree Professionals
& Persons of Exceptional Ability
 Job requires advanced degree (Master’s & above) or Bachelor’s
degree + 5 years progressive professional experience
 Labor certification required
 Waiver of labor certification when employment is in the “National
Interest”
EB-3: Professionals, Skilled Workers,
Other Workers
 Most commonly used, historically highest demand
 Professionals: position requires bachelor’s degree or
foreign equivalent degree
 Skilled workers: position requires minimum 2 years
experience and/or training
 Other workers: limited to 10,000
 Labor certification required in all cases
March 2010 Employment Bulletin
PERM Labor Certifications
PERM - New Labor
Certification Process
 Program Electronic Review Management
 PERM does not stand for permanent residence
 One standardized system
 Electronic application process
 New advertising, recruitment and posting requirements
 Must obtain prevailing wage determination from National
Prevailing Wage and Helpdesk Center (NPWHC) before
filing
Key Aspects of PERM (cont’d)
 Processing times vary widely; cases selected for audit
experience lengthier processing time
 Some changes to eligibility standards for foreign nationals
 New recordkeeping and documentation requirements
 Applications subject to DOL audits based on
predetermined factors or at random
What Is Labor Certification?
 Test of job market to make sure minimally qualified U.S.
workers get available jobs before any foreign worker.
 Affected by the economy
 Search for able, willing, qualified and available U.S.
Workers.
 Can’t make a company hire U.S. worker, but can’t submit
case for foreign worker if a minimally qualified U.S. worker
found.
When Is Labor Certification Needed?
 First Stage of Permanent Residence Process for most
employer-sponsored applications.
 Is needed by most EB-2 and all EB-3
 Who doesn’t need it:
 EB-1 cases:
 Multi-national Executive or Manager
 Outstanding Researcher
 Individual of Extraordinary Ability
 EB-2 IF National Interest is served by what they’re
doing
2 Types of Labor Certifications
 Regular PERM: For all professional positions other
than teachers
 Special Handling PERM: Only for college/university
teaching positions
Special Handling
PERM Processing
Purpose
 To test the U.S. labor market – employer must
document a good faith recruitment was made and
that no U.S. worker was found more qualified than
the foreign national
Basic Requirements
 The position must include classroom teaching duties at
a college/university
 Application must be filed within 18 months from the
date of the job offer letter, not the date of hire
 At least one printed advertisement placed at least one
time in a national professional journal, which clearly
states the position title, duties, and minimum job
requirements.
 (The advertisement must include the entire title page,
showing the journal name and publication date, as well as
the entire page on which the ad appeared)
Basic Requirements (cont’d)
 Wage offered meets the higher of the prevailing
wage or actual wage
 DOL Posting Notice posted at job worksite for 10
consecutive business days
 Competitive recruitment and selection was
conducted – final written report
 Foreign national was the most qualified applicant
Less-Stringent Standard
 Must show that applicant is “more qualified” than
any other US applicant
 Can use subjective factors to show that the FN is
more qualified
 Much easier than showing that there are no
qualified US workers available
 Must document this through the Recruitment
Statement
Benefits
 Fewer advertising costs
 Quicker processing times
 Lower audit rates
 Easier standard, especially with our current high
unemployment rate
Regular PERM Processing
Required Labor Certification
Paperwork
 Prevailing Wage Determination
 Audit File
 Recruitment Report
 Advertising and Recruitment
 30-day job order
 Sunday Newspaper ads (or prof. journal if applicable)
 Additional recruitment for professional positions
 Notice & Posting (Bargaining Rep)
10-consecutive business days
 In-house media (where required)
 See sample posting (Handout 2)

Recruitment Requirements for
Professional Positions
• Recruitment must take place 30-180 days before
PERM application filed
• Placement of job order with SWA
• Placement of two Sunday newspaper ads
• General circulation
• Spaced at employer’s discretion (but not same day)
• If position requires experience and an advanced
degree, one Sunday ad may be replaced with one
ad in a professional journal
• Professional journal must be in print, cannot be on
the internet only
Recruitment Requirements for
Professional Positions (cont’d)
 Choice of 3 out of 10 possible additional recruitment
steps for professionals:
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Employer’s website
Job fairs
Job search websites
Private employment agencies
On-campus recruitment
Trade or professional organizations
Employee referral program (if incentives are offered)
Campus placement office postings
Local and ethnic newspapers, where appropriate
Radio and television ads
Placing a Job Order
 Must place job order with SWA
 30-day posting
 30-day quiet period before PERM filing
 Procedures vary depending on state
 Usually requires employer to register
Elements of the Advertisement
 Must contain the employer’s name
 Must direct applicants to report to or apply to the
employer
 Must describe the job opportunity
 Must indicate the geographic location of the job
opportunity
 The wage is not required, but if wage is included in
the ad, must equal or exceed prevailing wage (and
cannot be less favorable than the wage offered the
foreign national)
Notice & Posting Requirements
 Employer must post a notice of the job opportunity
at the worksite for 10 consecutive business days,
unless position is unionized.
 Posting must include salary
 Posting must contain notice language and address of
Atlanta Certifying Officer.
 Must also post via all in-house media normally used
to recruit for similar positions (e.g., intranet,
electronic, bulletin board)
 See Handout 2 for sample posting.
Contacting Applicants
 Good Faith Effort:
 Employer must timely contact ALL applicants as soon as
possible (within reasonable timeframe, e.g. 7-14 days of
receipt)
 Employer must document applicant contacts or attempts to
contact:
 dates
 name and title of person making/ attempting contact
 method of contact - certified letter recommended
Interviewing Applicants
 Employer’s normal company process
- screening (e.g., telephone) interview conducted
by employer is acceptable
 Employer must analyze qualifications in the context
of stated minimum requirements
 Employer must provide objective & quantifiable
reasons for rejections
 Authorization to work in the U.S.
 Potentially qualified applicants
Recruitment Records
 Recruitment results not submitted with labor
certification application
 Employers must maintain documentation of
recruitment efforts and results
 Detailed recruitment report required
 Records must be retained for five years from filing of
labor certification application
 Certifying Officer may request records during an audit
Recruitment Report
 Employer must prepare detailed recruitment report that fully
and accurately describes recruitment efforts
 Must detail number of workers applied and sorted by reason of
rejection (doesn’t need to contain names or resumes)
 Not filed with PERM application
 Place in audit file
Audits and Post-PERM Issues
Audit File
 Contents
 Recruitment efforts
 Recruitment report
 Resumes
 Prevailing wage determination
 Notices & postings
 Business necessity arguments
 Information pertaining to layoffs
 Records must be retained for 5 years
Audits
 How will cases be selected for an audit?
 Randomly
 Based upon confidential audit criteria
 DOL has sharply increased audit rates
 Audit process
 CO sends audit letter w/request for documentation
 Employer has 30 days to submit response. Best to file audit
response as early as possible
 30-day extension at CO’s discretion
 CO may certify, deny, request additional documentation or
order supervised recruitment
Audits (cont’d)
 Partial list of possible audit factors
 Job duties not normal for occupation/exceed SVP
 Qualifying experience gained with employer in comparable
position
 Layoffs
 Foreign language requirements
 Alternative requirements
 Combination of occupations
 Foreign national influence over position
 Employer paid for education and/or training
Post-Certification Issues
 Signature requirements
 Labor certifications are now valid for 180 days from
date of certification (or until January 12, 2008 if
certified before 7/16/2007). I-140 must be filed
within LC validity period
 Substitution of foreign nationals no longer
permitted.
 Foreign national beneficiaries no longer permitted to
pay costs and fees of labor cert process.
Revocation of
Approved Labor Certifications
 CO may revoke an approved labor certification
where “not justified”
 Approved labor certification may be revoked at any
time. No time limit on CO’s authority to revoke.
 State Department and Department of Homeland
Security also have revocation authority
What Happens After
PERM Approval?
I-140 Petition
 Step 2 of the green card process
 After PERM approval, everyone is eligible to file I140
 Must be filed within 180 days of PERM approval
 Must document ability to pay
 Must document requirements listed on PERM
application (education, experience, etc)
March 2010 Employment Bulletin
Adjustment of Status
 Can file concurrently with preference petition if
priority date is current
 Immigrant visa must be available for preference
category and foreign national’s country of birth/
chargeability
 Filed at USCIS Lockbox
Consular Processing
 Similar requirements as for adjustment of status
 Some additional documentation necessary (police
clearances, military service certificates)
 Application processed through U.S.
Embassy/Consulate abroad
 Mandatory for certain foreign nationals
Managing Immigration in an
Economic Downturn
Impact of Termination or Changes in
Conditions of Employment on
Permanent Residence Process
 PERM (Labor Certification)
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Termination
Change in salary, position, job location
Hiring “freezes”
Impact of layoffs on PERM recruitment program
Filing future PERM applications
Impact of Termination or Changes in
Conditions of Employment on
Permanent Residence Process
 Immigrant Visa (I-140) Petitions
 Maintenance of priority date
 Adjustment of Status (I-485) Applications
 Adjustment of Status Portability
 If I-140 approved or approvable and I-485 pending more than 180
days
 Must be filling same or similar occupation
 Change in job location or difference in wage offered not basis for
denial (substantial wage difference could impact “same or similar
job capacity” analysis)
 Notification to USCIS of change of employer
Thank You!
If you have additional questions, please send me an
email:
ablumberg@fragomen.com
This presentation is not intended to be construed as legal advice.
Other Updates
Other Updates
• Executive Area Budget Managers will receive a list of
in-unit faculty and out-of-unit staff who received the
across-the-board increases that will be reflected on
the paycheck of September 24, 2010.
Upcoming Events/Deadlines
Event
Benefits Open
Enrollment
Location
N/A
Date/Time
Monday, September 27 to
Friday, October 22
Wrap Up
Questions?