December 29, 2023 - Weekly Immigration News Update

Posted by Keshab R. Seadie | Dec 29, 2023 | 0 Comments

Dear Valued Clients and Readers,

As we step into this new year, we would like to remind our client companies of the importance of conducting an annual internal audit of your H-1B and L-1 visa programs. This proactive measure is crucial in ensuring that your company remains compliant with all the regulatory requirements and avoids any potential legal complications.

Here are a few key reasons why an annual internal audit is important:

1.Regulatory Changes: Immigration laws and regulations are subject to change. An annual audit helps ensure your company adapts to any new requirements.

2. Accuracy of Records: Regular audits help maintain accurate and up-to-date Public Access Files (PAFs) and other necessary documentation.

3. Identifying Discrepancies: Early detection of any discrepancies or non-compliance issues can save your company from penalties and legal challenges.

4. Training and Awareness: It helps in reinforcing the importance of compliance within your team and ensures that everyone is aware of their roles and responsibilities.

We encourage you to make this internal audit a part of your annual routine. It not only demonstrates your commitment to legal compliance but also safeguards the interests of your employees and your organization.

As always, our team at Law Offices of Keshab Raj Seadie, P.C.  is here to assist and guide you through the audit process and any other immigration-related needs you may have. Do not hesitate to reach out to us for any assistance or questions regarding the audit or any other concerns.

Navigating FDNS Site Visit and DOL Audit in 2024 

To protect itself from the Fraud Detection and National Security (FDNS) site visits and Department of Labor (DOL) Wage and Hour Division audits related to the H-1B visa program, an IT consulting company should ensure the following:

1. Accurate and Current Public Access Files (PAFs): Maintain updated and accurate Public Access Files for each H-1B employee, including LCA details, wage rate, working conditions, and actual wage data.

2. Compliance with LCA Obligations: Adhere strictly to the Labor Condition Application (LCA) provisions, ensuring that H-1B employees are paid at least the prevailing wage and that working conditions for these employees do not adversely affect the conditions of U.S. workers.

3. Proper Wage Payments: Ensure all H-1B employees are receiving the appropriate wages as specified in the H-1B petition and LCA, including during non-productive or “bench” time.

4. Documentation of Worksite Locations: Keep detailed records of all worksite locations for H-1B employees, especially if they are placed at third-party client sites, to ensure they align with the locations specified in the H-1B petitions.

5. Employee-Employer Relationship: Maintain clear evidence of a valid employer-employee relationship, including job descriptions, performance reviews, and supervision records.

6. Recordkeeping: Implement robust recordkeeping practices, retaining all relevant H-1B documentation, correspondence, and records of compliance efforts.

7. Internal Audits and Training: Regularly conduct internal audits of H-1B compliance and provide training to HR staff and managers on compliance requirements and best practices.

8. Immigration Counsel: Work with experienced immigration attorneys to ensure ongoing compliance with all aspects of the H-1B program and to stay updated on changes in immigration laws and policies.

9. Prepare for Site Visits: Develop a protocol for handling unannounced FDNS site visits, including designating a point of contact, training front-line staff, and having documentation readily available for review.

10.Transparency and Communication: Foster open and transparent communication with H-1B employees about their rights and obligations, and ensure they are aware of their wage rates, terms of employment, and the location of the Public Access File.

By maintaining strict adherence to these guidelines, an IT consulting company can significantly reduce the risk of penalties and ensure a smoother process during FDNS site visits or DOL wage and hour audits.

LCA Posting at the End Client Site

To collect and maintain evidence of Labor Condition Application (LCA) posting at the end-client site for H-1B visa compliance, follow these steps:

1. Understand LCA Posting Requirements: The LCA must be posted in at least two conspicuous locations at the actual worksite where the H-1B employee will be employed or in electronic form accessible to affected employees. The posting should occur on or before the date the H-1B worker begins employment at the new worksite.

2. Collect Posting Details:

• Dates of Posting: Document the date(s) when the LCA was posted and when it was removed. The LCA should be posted for a total of 10 business days.

• Locations of Posting: Record the specific physical locations or the electronic locations where the LCA was posted. For physical postings, this might include notice boards in break rooms, entrances, or other conspicuous places.

3. Photographic Evidence: Take clear photographs of the LCA posted at the site, ensuring the location and the content of the LCA are visible. For electronic postings, screenshots of the posting can serve as evidence.

4. Signed and Dated Attestation: Obtain a signed and dated statement from the manager or authorized official at the end-client site confirming the LCA posting, including the specific locations and dates of the posting.

5. Electronic Posting Documentation: If the LCA is posted electronically, such as on an intranet or company website, ensure you document the URL, the access path, and any login instructions, along with screenshots of the posted notice.

6. Record of Affected Employees: If applicable, keep a record of current employees at the place of posting who are in the same occupation as the H-1B worker and might be affected by the LCA posting.

7. Public Access File (PAF): Store all these documents and evidences securely in the Public Access File for each H-1B employee. This file should be readily accessible and produced upon request during audits or inspections.

8. Keep Updated Records: Ensure that all records are kept for at least one year beyond the date of the employment specified in the LCA or one year from the date the LCA is withdrawn.

By meticulously collecting and maintaining these evidences, an employer can demonstrate compliance with LCA posting requirements and be prepared for any audits or inquiries from the Department of Labor. Always consult with an experienced immigration attorney to ensure that all legal requirements are met and to get advice tailored to your specific circumstances.

DOS Pilot Program for Stateside H-1B Visa Renewal

Overview: The DOS has announced a pilot program to facilitate stateside visa renewal for certain H-1B visa holders.

Eligibility: This program is specifically for H-1B principals renewing a prior H-1B visa issued by Mission Canada (from 1/1/20 to 4/1/23) or by Mission India (from 2/1/21 to 9/30/21).

Application Period: Qualified applicants can submit their online applications from 1/29/24 to 4/1/24.

Purpose: This pilot aims to streamline and expedite the visa renewal process for eligible H-1B holders within the U.S., reducing the need for international travel.

Indefinite Extension of Nonimmigrant Visa Interview Waiver Program

Effective Date: Starting January 1, 2024, the State Department has indefinitely extended the interview waiver program for certain nonimmigrant visas.

Expansion: This measure aims to make the visa renewal process more efficient and accessible by waiving the interview requirement under specific conditions.

USCIS Final Rule on Premium Processing Fees

Fee Increase: To adjust for inflation, USCIS has increased fees for premium processing. The new fees will be $1,685, $1,965, and $2,805 depending on the form and service.

Effective Date: The new fees will be required for requests postmarked on or after 2/26/24.

CBP's Stampless Entry and Technological Initiatives

Simplified Arrival Program: This program is now fully implemented at all U.S. airports, offering a more streamlined entry process with stampless arrivals.

Mobile Applications: Several mobile applications are available to facilitate easier entry into the U.S., enhancing efficiency and traveler experience.

These updates reflect the ongoing efforts of U.S. immigration agencies to modernize and improve the efficiency of visa and immigration processes. We encourage all companies to conduct an internal audit of all immigration programs and eligible H-1B visa holders to consider the benefits of the pilot program and remind all clients of the new fee schedules for premium processing.

As always, we are here to assist you with understanding how these updates may affect you or your organization and to provide guidance on navigating these changes successfully. Please do not hesitate to reach out for personalized advice or further information.

Here's to a fantastic year ahead filled with opportunities, growth, and success. Happy New Year!

Warm regards,

Keshab Raj Seadie, Esq. 
Law Offices of Keshab Raj Seadie, P.C.

Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.

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