WELCOME TO THE DESTINATION WEBSITE FOR H-1B AUDIT
Law Office of Keshab Raj Seadie, PC
146 West 29th Street, 10th Floor
New York, NY 10001
Phone: (212) 571-6002
Fax: (212) 571-7302
www.h1baudit.com
Are you prepared for an H-1B Audit?
Department of Labor is cracking down. Your company could be the next target! That's Why You Must Act Now And Conduct An Internal H-1B Audit Today! Tomorrow May Be Too Late!
Call us today for a FREE initial consultation! (212) 571-6002
Don't Let H-1B and LCA Audit Problems Undermine Your SuccessDo you have an H-1B or LCA Audit problem that needs to be solved? Law Office of Keshab Raj Seadie, PC offers creative solutions to your immigration problems. Our firm has more than a decade of experience in creatively solving H-1B Audit problems in such areas as Material Misrepresentation in LCAs, Improper Selection and Classification of Prevailing Wage Levels and Actual Wage, Benching and Nonpayment of Wages, Improper Public Access Files, Shortcomings in LCA Postings, I-9 Violations, Required Wage Documentation, Exempt H-1B Worker, Recruitment of US Workers, Level or Degree of Employer's Wrong-doing in Violations, Displacement of US Workers, Accepted H-1B Fees, Required to Pay Penalty for Ceasing Employment, and Failure to Comply with various provisions of LCA and H-1B laws and regulations.
Along with an immigration practice that serves H-1B Dependent Employers in all areas of H-1B and LCA Audits, our New York City Office features an internationally acclaimed Immigration Law practice handling the full spectrum of immigration law matters, from H-1B Visas to Green Cards. Our L-1 and E-2 Practice Group takes advantage of its strategic location in New York City to counsel major international clients on movement of key executive and managerial professionals. In PERM and Labor Certification, we have been recognized for our leadership in Information Technology Industries. Our Family Practice helps clients achieve solutions for family reunification.
We have extensive experience in H-1B and LCA Audits and litigation, and in most other areas of immigration law. Our Firm will work diligently and creatively to solve your immigration problems at a minimal cost to you.
Successfully Represented H-1B Dependent Employers in H-1B/LCA Audits throughout the U.S. including NY,NJ,PA,DE,CT,MA and CA
This site is exclusively devoted to H-1B/LCA audit matters. Please visit www.greencardmaker.com for assistance with your other immirgation matters including H-1B, E-2, L-1, and PERM related issues.
What is an H-1B Audit and how is it conducted?
An H-1B Audit is conducted by the Wage and Hour Division of the U.S. Department of Labor (DOL) to find out whether an H-1B employer is in compliance with the existing H-1B laws and regulations. The Labor or H-1B Audit could arise from many sources including but not limited to Employee Complaint, US Embassy Referral, or Random Audit. Learn more ►
What penalties or sanctions can an H-1B employer face for non-compliance of the H-1B program requirements?
When violations are found, the Administrator of the Department of Labor’s Wage and Hour Division may assess civil money penalties with maximums ranging from $1,000 to $35,000 per violation, depending on the type and severity of the violation. The Administrator may also impose other remedies, including payment of back wages. Learn more ►
H-1B Audit Expectations & Etiquette:
In most instances, the Employer will receive written notification approximately one week prior to the scheduled start of an H-1B Audit. Learn more ►
NEW FEES ANNOUNCED FOR NEW & TRANSFER H-1B AND L-1 FILINGS
(Does not apply to extensions and amended filings.)
PL 111230 has Increased H-1B and L-1 Filing Fees by:
$2,000 for H-1B - transfer or new filing
$2,250 L-1 - for transfer or new filing
As per the USCIS teleconference held August 19, 2010, the fee for H-1B and L-1 filings will be increased by $2,000 and $2,250, respectively. This fee increase will apply only to NEW and TRANSFER FILINGS, and not for extensions or amended filings.
The foregoing fee is applicable to employers with 50 or more employees in the United States, if more than 50 percent of the applicant ' s employees are on H-1B and L-1 Visas.
This is to inform you that on August 13, 2010, President Obama signed into law PL 111230 which includes a provision that,
"during the period beginning on the date of the enactment of this Act and ending on September 30, 2014, the filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(L) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(L)) shall be increased by $2,250 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant ' s employees are nonimmigrants admitted pursuant to section 101(a)(15)(H)(i)(b) of such Act or section 101(a)(15)(L) of such Act"
and that
"during the period beginning on the date of the enactment of this Act and ending on September 30, 2014, the filing fee and fraud prevention and detection fee required to be submitted with an application for admission as a nonimmigrant under section 101(a)(15)(H)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)) shall be increased by $2,000 for applicants that employ 50 or more employees in the United States if more than 50 percent of the applicant 's employees are such nonimmigrants or nonimmigrants described in section 101(a)(15)(L) of such Act."
Although the legislation states that this fee increase will take effect upon "enactment" of the statute, which normally means the date it is a signed into law, August 13, 2010. This has been reconfirmed by the USCIS today and the new fee has been in effect since August 14, 2010.
Therefore, at this time we are recommending that our clients continue to file H and L petitions with the previously required filing fees for extension or amended cases and submit the new fee on new and transfer cases. For the cases already filed on August 14th onwards, the USCIS will issue requests for evidence spelling out in detail exactly who is required to pay the additional amounts. The cases filed on or after August 14th, 2010 are on hold as of today at the Vermont and California Service Centers. However, the hold is expected to be lifted by 20th of August 2010.
Senators Sanders and Grassley Unveil Immigration Amendment
On 6/9/10, Senators Sanders (I-VT) and Grassley (R-IA) unveiled an immigration-related amendment to the American Jobs and Closing Tax Loopholes Act (H.R. 4213) also known as the "tax extenders" bill.
The amendment prohibits the Secretary of Homeland Security (DHS) from approving an employer petition for any visa authorizing employment in the United States unless the employer has certified to the Secretary of Labor that the employer: (1) has not provided a notice of a mass layoff, as defined by the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101 et seq.) during the 12-month period immediately preceding the alien's scheduled hiring date; and (2) does not intend to provide a notice of a mass layoff.
It also states that if an employer provides a notice of a mass layoff after the approval of a visa any visas approved during the most recent 12-month period for such employer shall expire 60 days after the date on which such notice is provided and shall not be subject to judicial review.
Finally, the amendment exempts an employer from such requirements if the employer certifies to the Secretary of Labor that the total number of the employer's workers who are U.S. citizens working in the United States will not be reduced by a mass layoff.
The tax extenders bill is currently pending on the Senate floor and the Sanders/Grassley amendment could come up early next week. Stay tuned to h1baudit.com to get the latest information on the status of this amendment.
Complaint Field Challenging Employer-Employee/Third-Party Placement Memo
Broadgate, Inc., et al v. USCIS, et al
Case number: 1:10cv00941
This Application for Preliminary Injunction and Complaint filed on June 8, 2010 by Greenberg Traurig LLP in the U.S. District Court of the District of Columbia, challenges USCIS’s application of the January 8, 2010, Neufeld Memorandum’s definition of employer-employee relationships, resulting in the denial of H-1Bs filed by IT staffing firms. Judge Gladys Kessler will be hearing the case. More details to follow.
Urgent: Clarifications on H-1B: How Third-Party Placements Relate to Employer-Employee Relationships -By Keshab Raj Seadie, Esq. (Updated 01/16/2010)
This office has discussed many times what is involved in a foreign national obtaining H-1B status. A person with an H-1B visa or H-1B status comes to the United States to perform services in a specialty occupation as described by law and that person meets the qualifications required to perform that occupation. Learn more ►
STATEMENT OF US SECRETARY OF LABOR HILDA SOLIS ON IMMIGRATION ENFORCEMENT. 224 NEW WAGE AND HOUR INSPECTORS HIRED
WASHINGTON - (10/30/2009) U.S. Secretary of Labor Hilda L. Solis today issued the following statement regarding the AFL-CIO and American Rights at Work report ICED OUT: How Immigration Enforcement Has Interfered with WorkersRights.
"The Department of Labor is firmly committed to protecting the rights of all workers, and especially the rights of the most vulnerable workers in our economy."
"The violation of any one worker's rights is cause for concern to all American workers. When unscrupulous employers abuse vulnerable workers, honest employers and their workers suffer."
"I am proud that, as of Oct. 13, the Labor Department has hired 224 new wage and hour investigators to seek out employers in violation of the law wherever they may be. These investigators are working hard every single day to ensure that every worker is paid at least the minimum wage, that those who work overtime are properly compensated, that child labor laws are strictly enforced and that every worker is provided a safe and healthful environment."
"Wage and hour laws apply to every single worker in this country, regardless of immigration status. My department is working tirelessly to protect all workers' rights."
TERMINATING THE EMPLOYMENT OF H1B EMPLOYEES
We are in tough economic times and employees are being laid off. When the employees in question have H1B status in United States tied to their jobs, issues arise more complex than severance and right to unemployment insurance. It is important to review some of issues that can come up when someone in H1B status loses his or her job. In the event that employer dismisses the H-1B nonimmigrant from employment before the end of the period of authorized time/admission, the employer must send a written termination notification by certified mail to the H-1B alien employee and USCIS which approved the underlying H-1B visa. Moreover, the employer will also be responsible for the reasonable costs of return transportation to his or her residence abroad. Learn more ►
USCIS’ FDNS COMMENCES AUDIT OF H-1B PROGRAM, INCLUDING UNANNOUNCED SITE VISITS TO H-1B EMPLOYERS AND THEIR CLIENTS
The U.S. Citizenship and Immigration Services’ (USCIS) Office of Fraud Detection and National Security (FDNS) has recently commenced an assessment of the H-1B program. The following is information that employers (and their immigration counsel) should know about FDNS, FDNS’ current H-1B assessment program, and how to respond if an FDNS Officer visits the employer’s (or its client’s) office as part of this assessment program. Learn more ►
BACK WAGE LIABILITY IS FOR ACTUAL WAGE OR PREVAILING WAGE, WHICHEVER IS HIGHER (7/30/09)
The ARB found meritless the Employer's argument in Vojtisek-Lom v. Clean Air Technologies International, Inc., that the ALJ erred in basing a back wage calculation on the higher amount actually paid to the Alien rather than the prevailing wage listed on the LCA. The ARB cited 8 U.S.C.A. § 1182(n)(1) and 20 C.F.R. § 655.731(a) for the proposition that "[t]he enforceable wage obligation for an employer of an H-1B nonimmigrant is the 'actual wage' or the 'prevailing wage,' whichever is greater." ARB No. 07-097, ALJ No. 2006-LCA-9.
BACK WAGES; EMPLOYER'S POTENTIAL LIABILITY IS FOR ENTIRE PERIOD OF EMPLOYMENT OF THE ALIEN, INCLUDING A PRIOR LCA (7/30/09)
In Vojtisek-Lom v. Clean Air Technologies International, Inc., the Respondent had engaged the Complainant (the H-1B worker) on two sequential LCAs. On appeal, the Respondent argued that because the Complainant had not filed a complaint within one year of the end of the first LCA, the ALJ erred in assessing back pay liability for periods covered by the first LCA. The ARB rejected this argument, agreeing with the ALJ's analysis that the LCA regulations make an employer liable for paying the required wage for the entire period of employment. ARB No. 07-097, ALJ No. 2006-LCA-9 (ARB July 30, 2009).
FAILURE TO OBJECT TO FINDING BY ADMINISTRATOR DOES NOT COMPEL WAIVER OF DE NOVO REVIEW BY THE ARB (7/30/09)
In Vojtisek-Lom v. Clean Air Technologies International, Inc., the Administrator argued that the Respondent waived its right to have the ARB review de novo the ALJ's back wage award for the same time period as the Administrator's earlier finding because the Respondent had not contested the Administrator's determination that it owed the back wages for that period. The ARB rejected this argument, finding no basis for not exercising its de novo review authority. ARB No. 07-097, ALJ No. 2006-LCA-9.
ALJ Finds "Benched" H-1B Employee Entitled to Unpaid Wages (5/14/2009) ALJ found that the employee did not need a SSN to begin work, only evidence of having applied for one, thus was in employment-related nonproductive status requiring payment. And that only pay reported to IRS met requirements as evidence of payment of prevailing wage. Benched H-1B employee is eligible for full salary in accordance with the approved LCA until the bonafide termination. The ALJ also stated that bonafide termination does not occur unless and until the USCIS receives a written request for termination. H-1B Employer does not have to pay for the duration of authorized unpaid leave of absence. Administrator, Wage & Hour Div. v. Itek Consulting, Inc. 2008-LCA-00046 (5/6/09).
ARB finds Employer Liable for Back Wages
DOL Administrative Review Board (ARB) finds Employer failed to report termination of the H-1B employee as required under H-1B program requirements. Employer is subsequently liable for back wages. The ARB asserts that employment indicated as full-time in the LCA and H-1B petition must be paid at the greater of the prevailing or actual wage rate. An employer cannot pay an H-1B worker any less, such as part-time wages for part-time work, without notifying USCIS. Administrator, Wage & Hour Div. v. Help Foundation of Omaha, Inc. et al. (ARB, 12/31/08)
ALJ finds Employer Liable for Back Wages and Retaliatory Termination
DOL Administrative Law Judge (ALJ) finds the Employer retaliated against the H-1B worker by terminating employment after worker complained to DOL. ALJ determines Employer must pay back wages, benefits and interest through the date of bona fide employment termination. Huang v. Ultimo Software Solutions, Inc., 2008-LCA-00011 (12/17/08).
ALJ looks to H-1B Required Wage
Administrative Law Judge (ALJ) utilizes LCA and prevailing wage in determining back pay. ALJ declines to consider a disputed agreement establishing a higher wage, as private contract disputes are outside the scope of the DOL's authority. Galal v. Z&A Infotek Corp., 2008-LCA-00010 (5/13/08).
ALJ finds Employer Liable for Payment of H-1B Filing and Premium Processing
Administrative Law Judge (ALJ) finds Employer liable for H-1B filing and premium processing fees; ordered to reimburse H-1B worker. Benching, termination, retaliation and other issues are discussed. Morales Toia v. Gardner Family Care Corp., 2007-LCA-00006 (4/25/08).
ARB addresses Statute of Limitations for Benching Claim
DOL Administrative Review Board (ARB) finds that the 12-month period in which a benching violation complaint may be filed begins when a bona fide termination takes place, rather than within 12 months of the first benching occurrence. Gupta v. Jain Software Consulting, Inc., 05-088 (ARB 3/30/07).
ARB finds Employment Termination and Rehiring Equivalent to Benching
DOL Administrative Review Board (ARB) finds that an Employer's termination of H-1B workers without notifying USCIS and later rehiring them constitutes unlawful benching. The violation is found to be willful. USDOL, Wage & Hour Division, ESA v. Pegasus Consulting Group, Inc. (ARB 6/30/05).