Immigration Benefits Management

• Author: Charles M. Miller/Daniel Brown/Marcine Anne Seid
• Profession: Founding partner of the Miller Law Offices, Studio City, California/Partner in Fragomen, Del Rey, Bernsen & Loewy LLP's Washington, D.C./Principal attorney of the Seid Law Group, Palo Alto, California
• Pages: 69-101

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4.01 INTRODUCTION

Immigration benets management has increasingly become a necessary part of employers’

compliance programs. U.S. employers have key foreign employees, and the major focus of

this chapter is the lawful employment of these workers and employers’ compliance with

the various federal laws concerning this relationship. This chapter also covers the legal

requirements of the specic immigration benet programs for the employment of for-

eign workers that are primarily administered by the Citizenship and Immigration Services

(USCIS) and the Department of Labor (DOL) (but see Chapter 6 regarding verication of

the authorization and identity documents of all newly hired employees, both foreign and

domestic).

The Trump administration’s priorities to reinforce immigration laws have led to the

examination of the use of the H-1B visa classication and investigation by the DOL,

Department of Justice (DOJ), Department of Homeland Security (DHS), and Depart-

ment of State (DOS). On April 3, 2017, the DHS U.S. Citizenship & Immigration Ser-

vices (USCIS) issued a news release stating that H-1B enforcement activities will focus on

abuses of dependent employers and the use of third- party worksites1 and highlighting a

list of available resources for reporting fraud and abuse.2 That same day, the DOJ issued a

news release focused on eliminating the potential for discrimination against U.S. workers

in favor of H-1B labor,3 and that same week, on April 7, 2017, the DOL indicated that

1. Press Release, U.S. Citizenship & Immigration Services (USCIS), Putting American Workers First:

USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse Agency Creates Avenue

for American Workers to Report Abuse (April 3, 2017), https://www.uscis.gov/news/news- releases/

putting- american- workers- rst- uscis- announces- further- measures- detect- h-1b- visa- fraud- and- abuse.

2. Id. Press Release U.S. Citizenship and Immigration Services (USCIS), “Combating

Fraud and Abuse in the H-1B Visa Program.” (February 22, 2018, https://www.uscis.gov/

working- united- states/temporary- workers/h-1b- specialty- occupations- and- fashion- models/

combating- fraud- and- abuse- h-1b- visa- program.

3. Press Release, DOJ, Justice Department Cautions Employers Seeking H-1B Visas Not

to Discriminate Against U.S. Workers (April 3, 2017), https://www.justice.gov/opa/pr/

justice- department- cautions- employers- seeking- h-1b- visas- not- discriminate- against- us- workers.

Immigration

Benefits

Management

70 Immigration Compliance and Best Practices

it intends to use its existing authority to initiate investigations of H-1B program viola-

tors.4 Later in the month, on April 18, 2017, President Trump signed Executive Order

13788, Buy American and Hire American,5 which emphasizes preventing abuses of the

employment- based foreign worker programs and protecting U.S. employees from lower-

cost foreign labor. Today, more than ever, it is imperative that employers make an effort

to understand and comply with the immigration laws if they employ foreign workers,

particularly individuals in the H-1B visa classication.

4.02 H-1B, H-1B1, AND E-3 SPECIALTY OCCUPATION

LABOR CONDITION APPLICATION REQUIREMENTS

Employers who seeks to le a H-1B,6 H-1B1,7 or E-38 visa petition must make a num-

ber of attestations regarding the employment of the sponsored foreign worker on the

DOL’s Labor Condition Application (LCA), Employment and Training Administration

(ETA) Form 9035, or ETA Form 9035A. By signing the LCA, the employer attests to the

compliance of prescribed wage, working conditions, notice/posting, document retention

requirements and strike/lockout prohibitions, public record maintenance and retention

requirements, and other LCA worksite requirements.9

4.02.1 H-1B Visa Classification

The H-1B program allows employers to temporarily employ foreign workers in the United

States on a nonimmigrant basis in specialty occupations or as fashion models of distin-

guished merit and ability.10 A specialty occupation requires the theoretical and practical

application of a body of specialized knowledge and a bachelor’s degree or the equivalent

in the specic specialty, including, but not limited to, architecture, engineering, mathemat-

ics, physical sciences, social sciences, medicine, health care, education, business specialties,

accounting, law, theology, and the arts.11 The annual number of qualifying foreign workers

4. Press Release, DOL, US Department of Labor Announces Plans to Protect American Workers

from H-1B Program Discrimination (April 7, 2017), https://www.dol.gov/newsroom/releases/eta/

eta20170404-0.

5. Exec. Order No. 13788, 82 Fed. Reg. 18837 (April 21, 2017).

6. Immigration and Nationality Act of 1952 (INA) § 212(n); 8 U.S.C. § 1182(n).

7. INA § 212(t); 8 U.S.C. § 1182(t).

8. Id.

9. 20 C.F.R. § 655.700.

10. INA § 101(a)(15)(H); 8 U.S.C. § 1101(a)(15)(H); 8 C.F.R. § 214.2(h)(4)(i)(A).

11. 8 C.F.R. § 214.2(h)(4)(ii).

Immigration Benets Management 71

who may be issued a visa or otherwise be provided H-1B status is capped at 65,000 with

an additional 20,000 under the H-1B advanced degree exemption.12

4.02.2 H-1B1 Visa Classification

The H-1B1 program allows employers to temporarily employ foreign nationals from Chile

and Singapore in the United States on a nonimmigrant basis in specialty occupations.13

The annual number of qualifying foreign workers who may be issued an H-1B1 visa is set

at 6,800 with 1,400 from Chile and 5,400 from Singapore.14

4.02.3 E-3 Visa Classification

The E-3 program allows employers to temporarily employ foreign nationals from Austra-

lia in the United States on a nonimmigrant basis in specialty occupations.15 Current laws

limit the annual number of qualifying foreign workers who may be issued an E-3 visa to

10,500 Australian nationals seeking temporary work in specialty occupations.16

4.03 LABOR CONDITION APPLICATION:

WAGE REQUIREMENT

To comply with the wage requirement, an employer must pay the greater of the actual

wage for the duration of the authorized employment17 or 100% of the prevailing wage for

the occupational classication in the area of intended employment.18 However, the wage

paid cannot be lower than federal law or a required state or local law19 (i.e., city’s mini-

mum wage law). This may include any compensation treated as earnings for income tax

purposes. The wage requirement also obligates the employer to offer benets and eligibility

benets provided as compensation for services to H-1B, H-1B1, and E-3 foreign workers

on the same basis and in accordance with the same criteria as offered to U.S. workers.20

12. INA §§ 214(g)(1)(A). 214(g)(B)(iv), 8 U.S.C. §§ 1184(g)(1)(A), 1184(g)(8)(B)(iv).

13. United States-Singapore Free Trade Agreement Implementation Act, Pub. L. No. 108-78 (Sept. 3,

2003); United States-Chile Free Trade Agreement Implementation Act, Pub. L. No. 108-77 (Sept. 3,

2003).

14. United States-Singapore Free Trade Agreement Implementation Act, Pub. L. No. 108-78 (Sept. 3,

2003); United States-Chile Free Trade Agreement Implementation Act, Pub. L. No. 108-77 (Sept. 3,

2003.

15. INA § 101(a)(15)(E)(iii); 8 U.S.C. § 1101(a)(15)(E)(iii).

16. Id.

17. 20 C.F.R. § 655.731(a)(1).

18. 20 C.F.R. § 655.731(a)(2).

19. 20 C.F.R. § 655.731(a)(2)(iv).

20. 20 C.F.R. § 655.731(a)(1).