By David H. Nachman, Esq.

There are three potential “hot spots” for audits and investigations for the government related to the immigration and nationality laws. The first has to do with the documentation that the employer is required to maintain in connection with the H-1B nonimmigrant professional and specialty and occupation worker visa. The second area of potential audit concerns the employer’s obligations under the Immigration Reform and Control Act of 1986 (“IRCA”) [Pub. L. No. 99-603, 100 Stat. 3359] (known to HR Professionals as the “I-9 Process”). The third, and one more recent, area of audit surrounds the new Labor Certification Application Program called “Permanent Electronic Review Management” (“PERM”). Each of the foregoing government programs anticipates compliance through “audit”. Even a rudimentary understanding of the complex documentary requirements for each of these programs can help and employer to avoid potential liability. 

First, the U.S. Department of Labor (“DOL”) regulations that govern the maintenance of professional and specialty foreign national worker require an organization to develop and produce certain documents concerning the wages and the working conditions of an H-1B nonimmigrant. These documents are referred to as the Public Access File (“PAF”).  The PAF documents are required to be maintained at the H-1B worksite immediately after the employer files the Labor Condition Application (“LCA”) with the DOL. The employer is well-situated to ensure they maintain PAF documents and be sure that they continue to pay the H-1B nonimmigrant the specified wage on the LCA. Under the American Competitiveness and Workplace Improvement Act (“ACWIA”), an H-1B nonimmigrant must be offered the same company benefits as those offered to “similarly situated” non-H-1B employees in the organization.   

DOL audits can arise as a result of a complaint by a disgruntled employee or as a result of a randomly conducted investigation. Upon a DOL audit (normally undertaken by the Wage and Hour Division) an employer may be found not to be in compliance with (1) paying the H-1B nonimmigrant the specified wage (which pursuant to the H-1B Reform Act of 2004 became effective on March 8, 2005 must be 100% of the federally mandated prevailing wage); and/or (2) maintaining PAF documents; and/or (3) providing the H-1B nonimmigrant with the same benefits as those provided to all other “similarly situated” non-H-1B employees. Any failure to comply with DOL requirements can result in an employer being liable to pay back wages to an H-1B employee, debarment from the use of the H-1B program and/or other potential civil and/or criminal liabilities. Also, if the employer is a government contractor, the failure to comply may result in the debarment from the government contacts.

A second potential audit area for audit and investigation of an employer concerns employment verification and employer sanction law (referred to as the “Immigration Reform and Control Act of 1986” or “IRCA”). As every HR Professional knows, IRCA is an integral aspect of every hire. Under IRCA, every employer is required to properly verify the eligibility of an employee to work in the U.S. on the Form I-9. The I-9 Form is a deceptively simple document.  The I-9 Form is only one page in length but it continues to raise issues about proper preparation and retention.    

Since the U.S. Department of Homeland Security’s (“DHS”) absorption of the Legacy-INS, the Immigration and Customs Enforcement Division (“ICE”) has been charged with worksite inspections and audits of I-9 documents. The “good news” for employers is that the number of I-9 inspections has been on the decline. The “bad news” for employers is that ICE Officers are not inclined to be lenient and educate employers about their responsibilities but are more likely to impose sanctions.

Given the present focus on “security” and “identity” in the workplace, it is likely that ICE Officials will be more active in their investigations in the future. ICE is not required to wait for a specific lead. The investigative authorities of the DHS have implemented a “General Administrative Plan” (the “Plan”). The Plan identifies employers from a national database and it targets specific industries that have developed a reputation for hiring unauthorized workers (e.g., restaurant, meat-packing, commercial cleaning, textile and garment). The Plan also provides for “random” audits. For example, due to national security concerns, great efforts continue to be placed on identifying those individuals who have access to the nation’s “critical infrastructures” such as airports, wastewater facilities, and highways.      

Finally, the third area of interest for employers from an audit perspective is the new PERM process for Labor Certifications Applications (the “Green Card”). After pending for over two (2) years, in December 2004, the PERM regulations became “Final” and on March 28^th, 2005, the old Labor Certification Application process was replaced by PERM. While PERM promises faster green card processing, the application process is much more complex. The DOL seems to be sending a message that it is easier to audit the employer as opposed to processing an Application. 

The new PERM process requires an employer to obtain a Prevailing Wage Determination (the “PWD”) from the State Workforce Agency (the “SWA”) (e.g. The NJDOL, Alien Labor Certification Unit) in the State where the position has been offered. The PWD area of the law is constantly evolving. Once the PWD is obtained, an employer must undertake a rigid “recruitment process”. Recruitment consists of placing a job order with the SWA and placing two (2) Sunday advertisements in an appropriate newspaper. The recruitment process needs to be completed within six (6) months of the filing of the PERM Application. 

PERM requires meticulous preparation and a thorough understanding of the Regulations. The PERM process is analogous to the administrative process that surrounds the filing of a U.S. tax return. When the return is filed, the filer makes representations, declarations, and attestations about annual income and expenses. The filer does not submit evidence about annual income and expenses. Such information is only provided if the Internal Revenue Service (“IRS”) sends the filer a notice for an audit. The PERM program is similar. A PERM Application is filed by making attestations on the new DOL Form 9089. The Form 9089 is submitted to the DOL. DOL can either certify the Form without receiving documentation, or DOL can send out an audit letter.

The new PERM Regulations state that the DOL can request an audit of any pending Labor Certification Application for cause or in the DOL’s discretion. In the event that a prospective employer is noticed for an audit, the employer will receive an audit letter that lists the documents that will have to be submitted. The audit letter shall set a date that is thirty (30) days from the date of the letter for submission of the additional documents and shall advise the employer that the Labor Certification Application will be denied if the information is not received in a timely manner. If the employer does not respond, the PERM Labor Certification Application will be denied.

It appears clearly to be the case that immigration-related programs that are undertaken by employers may be subject to either directed and/or random government audits from the DHS and/or the DOL. Failure to adequately comply with government regulations can result in penalties. The employer’s familiarity with the intricacies of the auditing and compliance are likely to save a considerable amount of both time and money.       

David H. Nachman, Esq. is the Managing Attorney at Nachman & Associates, P.C. with offices located in Upper Saddle River, New Jersey, New York City (and having corresponding offices in Ohio, Netherlands Antilles and California). David Nachman received his BS from Georgetown University and his JD from Case Western Reserve University where he also received a Master’s Degree in Business Administration. Nachman & Associates, P.C. provided counsel throughout the U.S. on a full array of immigration law issues. Visit us at www.VISASERVECOM .com.

What: FREE Live Webinar

Where:   Link Here-Register anytime…

https://visaserve.webex.com/mw0305l/mywebex/default.do?siteurl=visaserve&rnd=0.17398043227002624

Date: February 26, 2009

Time: 12:00pm-1:00pm

Topics Discussed:

H-1B’s: Practical Advice for Employers

Description:

This program will provide information for employers regarding H-1B visas including what to do if there are gaps in employment eligibility, extending Employment Authorization Documents under the OPT STEM Program, and alternatives to the H-1B visa.

Speaker:

Victoria A. Donoghue, Esq., Nachman & Associates, P.C.

For more information, please contact Nachman & Associates, P.C. at info@visaserve.com or 201-670-0006 ext. 110.

If you have the time to do all the things you need to do just by yourself, then this might not be for you. But if you have the desire or need to free up more time, you also have things in your mind that you think you shouldn’t be doing, then continue reading. [read more]

At last. The long wait is almost over. I’ve always been a Palm fan. Every time there is a new model, I try my best to find an excuse to upgrade and I would do so. (like dropping it on purpose – just kidding)

Here is the list of Palm devices I bought for the last 10 years:
Palm Pilot III
Palm V
Palm M515
Palm Tungsten T3
Palm TX
Palm Treo 600
Palm Treo 650
Palm Treo 680

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USCIS Delays Rule Changing List of Documents Acceptable to Verify Employment Eligibility

U.S. Citizenship and Immigration Services (USCIS) announced Friday that it has delayed the implementation of an interim final rule entitled “Documents Acceptable for Employment Eligibility Verification” published in the Federal Register on Dec. 17, 2008 by 60 days, until April 3, 2009.  The rule streamlines the Employment Eligibility Verification (Form I-9) process and was originally set to take effect today (February 2, 2009). 

The delay will provide DHS with an opportunity for further consideration of the rule and also allows the public additional time to submit comments. A notice announcing the delay was transmitted today to the Federal Register.  In addition, USCIS has reopened the public comment period for 30 days, until March 4, 2009. The interim final rule will amend regulations governing the types of acceptable identity and employment authorization documents employees may present to their employers for completion of the Form I-9.  Under the interim rule, employers will no longer be able to accept expired documents to verify employment authorization on the Form I-9. 

The interim final rule and an informational copy of the revised Form I-9 will continue to be available for public comment at www.regulations.gov.

Nachman & Associates, P.C. is a Global Immigration law firm that handles employment verification/I-9 inquiries from employers across the country on a daily basis.  Being a U.S. Department of Justice Grantee, our office is well-qualified to answer these and any questions related to National Origin or Citizenship Status Discrimination, as well as CIS’ E-Verify Program, ICE’s IMAGE Program and the Social Security No-Match Process.  When traditional immigration approaches do not work, our skilled legal team offers many visa options to meet your immigration goals. Please feel free to contact us at any of our seven office locations, and speak to an associate in one of our 12 languages spoken, including: Spanish, French, Japanese, Korean, Slovak, Czech, Polish, Tagalog, Italian, Russian, Chinese, and German.

 

To meet a growing demand for Canadian immigration from the United States, in 2005 Nachman & Associates formed a Canadian Division, managed by licensed Canadian legal staff. With offices in Montreal, and Toronto, Canada (as well as in New York and New Jersey in the U.S.) our Canadian Division attorneys are in the unique position to assist with cross-border issues. If you, or any member of your staff, are interested in receiving more information about U.S. and/or Canadian Immigration options, please contact our office:

 

Website: http://www.visaserve.com

 

email: info@visaserve.com

 

phone: 201-670-0006 ext. 100

 

 

Power Plants in the Philippines can be categorized according to its nature of ownership and operation; or according to the type of fuel source and technology. Read More…

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Instead of multitasking, you set aside blocks or periods of time to focus on an individual type of tasks or activity.

You do things with the same thought process, direction and resources instead of doing many different things at the same time.

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And so my father, who was mentoring me, decided to help me get a loan. He knew the owners of Asia United Bank, a newly opened bank at the time. He introduced me to the VP of the company and scheduled an appointment with him.

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1962 - UP Geology Dept studied the country’s geothermal energy potential

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Mothers around the world are protesting against the recent move by the #1 Social-Network Facebook for deleting breastfeeding photos. They aren’t even violating Facebook’s Terms.

Continue reading here.

Sa matagal na panahong pananakop ng mga kastila, sila ay nag-iwan ng mga bakas na hanggang sa ngayon ay marka parin ng ating bayan. Paano tayo naging malayang kung gayong may mga bakas parin ng ating pagkaalipin katulad ng pangalan ng ating bansa na malinaw na nagsasabing tayo ay pag-aari parin ni Haring Felipe II?

Nakakapagtakang nakalaya na tayo’t lahat ay mukhang nakalimutan ng ating mga naunang lider o bayani na palitan ang pangalan ng ating bansa? Hindi naman siguro lingid sa kanilang kaalaman noon na ang pangalang Pilipinas ay ipinagkaloob ni Villalobos sa ating bansa sa ngalang ni haring Felipe.

Nakalimutan nga kaya nilang palitan, sinadyang kalimutan o wala sa isip nilang palitan ang pangalang Pilipinas.

“Read Pinoy!” is the theme of this year’s celebration of Philippine Book Development Month (PBDM), which has been moved from June to November to coincide with National Book Week (NBW). More…

just wanted to announce here

http://itpinoy.blogspot.com/

this is everything (hopefully) you need to know about the Philippine IT Industry, latest news, programming, computing tips and tricks, job opportunities, best practices etc… this is to prove that PINOY’s got IT!

check my latest write-up on: java programming for kids!

oh yeah they’re starting them young and they’re starting ‘em now!

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Watch I-witness Docufest 2008 for FREE on October 4 and 11 at the Gateway Cineplex 10 (Cinema 5). The best of I-witness documentaries will be featured on the big screen. I guess this will be on a first come first served basis so you better be early! Check the screening schedule

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