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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
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]
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
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

Job title

Salary

Job location

Job description

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
2.
Statement of actual wage (Handout 6)
3.
Explanation of actual wage system (Handout 7)
4.
Copy of document used to establish the prevailing
wage
5.
Posting confirmation (Handouts 8 & 9)
-
electronic or manual posting
Required Documents for the PAF (cont’d)
6.
Summary of benefits *
7.
Cover pages 9035CP *
8.
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.
40
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
47
48
49
50
51
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 #
Title
Date
Started
at
University
Date
Started
in New
Position
Contract
Length
9/12
Annual
Salary
Highest
Degree
Year
Institution
Degree where Highest
Earned
Degree
Earned
Jonny Boy
65873
Computer
Programmer
08/01/2007
N/A
12
$43,000
BS
2007
Florida
International
University
Computer
Programmer
01/06/2002
1/09/2009
12
$88,000
Masters
1992
University of
Miami
65874
Marilyn
Monto
John Stuck
65875
Computer
Programmer
08/20/2009
N/A
12
$52,000
BS
1998
Emory
University
Jhonny
Cashe
65876
Computer
Programmer
08/23/2000
8/28/2001
12
$32,000
AA
1999
Miami Dade
College
Troy Target
65877
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.
Department/Division/Center Chair/Director
Printed Name and Title
Date
MEMORANDUM
To:
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
 Dependents
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
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
Location
N/A
Date/Time
Tuesday, August 24
HR Customer Service
Survey Deadline to
Respond
N/A
Friday, August 27
PEP Forms Due
Division of Human
Resources
Monday, August 30
Benefits Open
Enrollment
N/A
Monday, September 27 to
Friday, October 22
Wrap Up
Questions or Comments?
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