August 19,2010

• Welcome
• Tri-Rail Employer Discount Program
• Benefits Update
• Immigration Basics: H-1B Visas
• Other Updates
• Wrap Up

• Effective immediately, employees may take advantage of the Tri-
Rail 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”

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

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



 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

 “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

 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

 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 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.

 Automatic Extension of your OPT work authorization to September
30 th : 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!!

 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.

 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 1 st day of employment.

 Job title
 Salary
 Job location
 Job description
 Minimum requirements for the position

 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

 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)

 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

 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

 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

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

 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

 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.

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 THE EARLIER THE BETTER!
 Recommended: Initiate Cases 6-8 months in advance
 BUT, do not issue filing fee checks right away

 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

 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

 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

 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

 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

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 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
Jonny Boy
Employee
ID #
65873
Title
Computer
Programmer
Date
Started at
University
08/01/2007
Date
Started in New
Position
N/A
Contract
Length
9/12
12
Annual
Salary
$43,000
Highest
Degree
BS
Year
Degree
Earned
2007
Institution where Highest
Degree
Earned
Florida
International
University
University of
Miami
Marilyn
Monto
John Stuck
65874
65875
Computer
Programmer
Computer
Programmer
01/06/2002
08/20/2009
1/09/2009
N/A
12
12
$88,000
$52,000
Masters
BS
1992
1998 Emory
University
Jhonny
Cashe
Troy Target
65876
65877
Computer
Programmer
Computer
Systems
Analyst
08/23/2000
01/19/2009
8/28/2001
N/A
12
12
$32,000
$48,200
AA
BA
1999
2008
Miami Dade
College
Florida
International
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.

 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

 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)]

 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

 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.

• Employment Guidelines
- LCA should be certified before employee starts work
- Permissible for employee to start on day USCIS received H-
1B petition
- If H-1B petition denied, employee must be taken off payroll and stop work immediately

 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

 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)

 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

 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

 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

 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: ablumberg@fragomen.com
This presentation is not intended to be construed as legal advice.

• 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

Event
Staff Senate Survey
Deadline to Respond
HR Customer Service
Survey Deadline to
Respond
PEP Forms Due
Location
N/A
N/A
Date/Time
Tuesday, August 24
Friday, August 27
Monday, August 30
Benefits Open
Enrollment
Division of Human
Resources
N/A Monday, September 27 to
Friday, October 22