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Top Three Foreign Worker Visa Problems HR May Face
 

By Marcy Stras  9/1/2011
 

In addition to the many tasks HR managers are asked to oversee, they often serve as the immigration contact and signatory for their companies.

For those who are unfamiliar with the immigration process, this can be a time-consuming and confusing area—especially in a post-Sept. 11 environment where the immigration laws and policies are constantly changing.

Here are solutions to three common immigration issues HR managers face:

Worksite Scavenger Hunt

Knowing where foreign workers are is important. While managers may be well-versed in state laws and I-9 reporting requirements, they may not be aware that many foreign national workers who are working in the United States are geographically restricted to a particular work location based on the attestations made by the employer in the initial visa petition. 

Recently, the U.S. Citizenship and Immigration Services (USCIS) increased the number of on-site visits it would pay to H-1 and L-1 employers to ensure that foreign nationals are in fact working at the address listed and in the position described in the petition. The H-1B temporary worker visa is used for a foreign national who possesses at least a bachelor’s degree or equivalent (based on education and experience), and who has come to the United States to assume a position that requires at least a bachelor’s degree. H-1B visas are under an annual quota. The L visa is either an L-1A visa, which is an intra-company transfer visa for a manager or executive, or the L-1B visa, which is for a person with specialized knowledge.

During a worksite visit, the USCIS will ask for records pertaining to the foreign national’s employment to prove that he or she is actually working in the location specified in the petition, as a change in employment site can compromise the integrity of the original petition.

It is critical that HR managers are in contact with the foreign national’s supervisor to ensure that there are no unintended discrepancies between the information being provided in the petition and the actual worksite. Supervisors may not realize the importance of the worker location or of restrictions regarding work performed on client sites. A USCIS visit that finds differences between the petition and the actual employment will lead to a host of problems for the employer moving forward, including revocation of previously approved petitions. It may affect the company’s ability to recruit foreign nationals in the future. 

Maintain Good Records

HR managers are well aware of the need to maintain impeccable files for auditing and reporting purposes. Diligent recordkeeping is a must, but managers may underestimate the importance of a timely purge of employee documents, particularly as it relates to H-1B employees.

A periodic winnowing is key to ensuring that employers are not held liable for possible past transgressions. This does not apply to I-9 records, which must be maintained for all current employees. Once a worker’s employment is terminated, his or her I-9 records must be kept for three years after hire or one year after termination, whichever date is later.

When sponsoring an H-1B nonimmigrant, the employer must file a Labor Condition Application (LCA) with the Department of Labor. The LCA asks the employer to make certain attestations as to the nature of the position and the wages that will be paid to the employee for their services. The approved LCA then becomes part of the Public Access File (PAF), which must be maintained throughout the foreign national’s employment, plus one year following either the expiration of the LCA or separation with the employee, which is a good time to review the records. 

Managers should periodically review the PAFs to ensure that they are in compliance and destroy any PAFs that have reached the requisite maintenance period. It is important to note that if the employee is terminated or has resigned prior to the expiration of the LCA, the employer must notify the Department of Labor and USCIS of the withdrawal. Failure to do so could result in the employer being held responsible for back pay, regardless of the nature of the separation. PAF maintenance is in addition to the requirements of I-9 file maintenance.

Inadvertent Exports

The USCIS now requires employees filing Form I-129—part of the visa petition used for several categories of nonimmigrant workers—to certify their company’s compliance with the U.S. Department of Commerce and the U.S. Department of State’s  “deemed export” regulations.

“Deemed export” rules interpret the release of controlled technology to a foreign national within the U.S. as equivalent to the export of technical data or information to that individual’s home country. Employers must certify whether or not the technology, to which foreign national workers have access, has sensitive military, trade or national security applications, and if so, follow the appropriate licensing steps.

The requirement of an export control license may be prompted not only by sensitive technology, but by its export destination as determined by the residency status of the participating employee. Currently, embargoed nations and those accused of harboring terrorists, such as Cuba, Iran, North Korea, Sudan, and Syria, carry the highest level of restriction. Exempted from export controls are those technologies readily available to the public, or developed via fundamental research.

While only a small percentage of companies filing Form I-129 handle controlled technology, all are required to sign “part six,” which confirms compliance with the regulations. Employers should thus be diligent in scrutinizing their technologies with respect to the control lists, as careless assumptions carry the risk of a false I-129 certification.

It is not yet clear how USCIS intends to verify petitioner accuracy in completing that attestation. We do know that if no answer is provided to the export question, it will result in the USCIS issuance of a request for additional information. We know, too, that the U.S. Department of Commerce has formed a working group of personnel from several agencies to determine how to handle this new information.

Marcy Stras is head of the Immigration Practice Group at Cozen O’Connor’s Washington, D.C. office. She has more than 20 years of international trade experience counseling clients on business immigration, customs and other trade issues. She can be reached at mstras@cozen.com.

Professional Pointer:

Now more than ever HR managers are asked to navigate the bureaucracy surrounding hiring a foreign worker. Immigration laws and policies that change on almost a daily basis make their responsibilities more difficult, and make communication between HR and employee supervisors more important than ever. Addressing these issues can be a tedious chore, but as with most government reporting requirements, an ounce of prevention is worth a pound of cure. 

Editor’s Note: This article should not be construed as legal advice.

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