Immigration Benefits Management

AuthorCharles M. Miller/Daniel Brown/Marcine Anne Seid
ProfessionFounding 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
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
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), 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,
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),
justice- department- cautions- employers- seeking- h-1b- visas- not- discriminate- against- us- workers.
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.
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),
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
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,
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,
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).

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