employer compliance

Common Employer Compliance Services

Updated LCA submissions when H-1B employees change work locations. If your H-1B employee’s work site will be changing, a new LCA is usually required. We can obtain a new LCA for you and provide instructions for updating your Public Access File.

Representation during Wage and Hour Investigations. If your company has received a letter from the U.S. Department of Labor, Wage and Hour Division regarding a possible H-1B Investigation, we can represent your company in order to help limit your potential liability.

Internal Auditing of your current public access information to ensure compliance, remedy any issues, and advise on preventative best practices and procedures so as to avoid any future compliance issues.

Internal Auditing of your current I-9 Forms will ensure compliance and help educate you on the proper procedures to be followed when a new employee is hired.

Creation and Retention of a Public Access files.

Consultation on material changes in employment and the immigration consequences of mergers and acquisitions.

Consultation regarding E-Verify and the procedures to follow in order to confirm employment eligibility of new hires.

LCA COMPLIANCE

The H-1B, H-1B1, and E-3 visa programs allow employers to temporarily employ foreign workers in the U.S. on a nonimmigrant basis in specialty occupations. Employers must submit a Labor Condition Application (LCA) to the Department of Labor electronically attesting to compliance with the requirements of the H-1B, H-1B1 or E-3 program. Violation of these attestations can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other sanctions to the employer.

The LCA requires the employer to attest that it will comply with the following labor requirements:

The employer will pay the worker a wage which is no less than the wage paid to similarly qualified workers or, if greater, the prevailing wage for the position in the geographic area in which the worker will be working.

The employer will provide working conditions that will not adversely affect other similarly employed workers.

At the time of the LCA there is no strike or lockout at the place of employment.

Notice of the filing of the LCA with the DOL has been given to the union bargaining representative or has been posted at the place of employment

The U.S. Department of Labor (DOL) Wage and Hour Division (WHD) is responsible for ensuring compliance with these requirements as well as the employer’s maintenance of required public access records. Employers must make certain materials available to the public within one working day of filing the LCA with the DOL. Additional information is required to be made available if the employer is H-1B dependent.

At GATEWAY PROFESSIONAL SERVICES, our team provides employers with a variety of services related to LCA compliance, including:

- Internal auditing of your current Public Access Files to ensure compliance, remedy any issues, and advise on preventative best practices and procedures to avoid any future compliance issues.

- Creation and retention of Public Access Files

- Representation during Wage and Hour Investigations. If your company has received a letter from the U.S. Department of Labor, Wage and Hour Division regarding a possible H-1B Investigation, contact GATEWAY PROFESSIONAL SERVICES attorneys as soon as possible.

- Consultation on material changes in employment and the immigration consequences of mergers and acquisitions.

Representation in USCIS Fraud Detection and National Security (FDNS) site visits.

MAINTENANCE OF STATUS

Foreign nationals must always be mindful of maintaining lawful status while in the United States. It is important to understand the concepts of “lawful status”, “period of authorized stay”, and “unlawful presence”, especially how they differ and impact an individual’s immigration status.

Lawful status

Lawful nonimmigrant status allows temporary stay and possible employment authorization to a nonimmigrant in the United States. Lawful status is determined by the individual’s I-94, which can be issued by the U.S. Citizenship and Immigration Service (USCIS) or the U.S. Customs and Border Protection (CBP). An I-94 determines how long the individual can remain in the United States, which visa classification the individual was admitted it, and when he/she should request a change of status, extension of status, or depart. To put it simply, the nonimmigrant must exit the United States on or before the I-94 expiration date or timely file an application or petition to extend or change nonimmigrant status. If not, the individual will be considered out of status.

However, the I-94 is not the only factor in determining lawful status. Lawful status is designated by an unexpired I-94 plus compliance to the terms and conditions of his/her visa classification. For example, an individual holding an H-1B visa must maintain status by working for his/her H-1B employer. Failure to comply with the assigned visa classification will be considered a failure to maintain status, and therefore, the foreign national will be out of status.

Period of authorized stay

Period of authorized stay by the Attorney General, also known as period of authorized stay or POSABAG, grants a nonimmigrant a period of time which he/she can remain in the United States even though the individual may not be holding lawful status. This period of authorized stay is only granted when a request to change or extend status is filed while the individual is in a valid nonimmigrant status. The most common circumstance in which period of authorized stay applies is when an individual timely files an application or petition to change or extend nonimmigrant status before the I-94 expiration date but the I-94 subsequently expires while the application or petition is pending with USCIS. Once the I-94 expires, the nonimmigrant falls out of status, but since an application or petition was timely filed before losing status, the individual remains in a period of authorized stay.

This period of authorized stay continues until USCIS makes a final decision on the timely filed application or petition. Once USCIS approves of the nonimmigrant’s application or petition, the decision has a retroactive effect, curing the period of time in which the individual was not holding lawful status. Keep in mind, a period of authorized stay is not the same as lawful status. Being in a period of authorized stay simply means that the nonimmigrant does not accrue unlawful presence despite technically being out of status.

Unlawful presence

Unlawful presence is when a nonimmigrant is physically present in the United States after lawful status or a period of authorized stay has expired. Unlawful presence occurs when an individual remains in the United States beyond the expiration date of his/her I-94 without a pending application or petition to change or extend status. This results in the accrual of unlawful presence until the individual departs the United States. An individual who is unlawfully present in the United States is also out of status; however, an individual who is out of status is not always unlawfully present.

If an individual has a timely filed and pending application or petition before his/her I-94 expired, then despite being out of status, the individual is in a period of authorized stay. This essentially tolls the accrual of unlawful presence until a final decision is made by USCIS on the individual’s application or petition. However, if USCIS ultimately denies the application or petition, then the individual begins accruing unlawful presence from the date of the denial and must leave the United States to avoid triggering any immigration issues.

Unlawful presence carries with it severe penalties that can be triggered once a nonimmigrant leaves the United States. It can automatically invalidate the nonimmigrant’s visa stamp and trigger the inadmissibility bar once the individual leaves the United States. For example, unlawful presence of more than 180 days triggers a three-year bar once the individual leaves the United States. Inadmissibility comes to play once an unlawfully present individual departs the United States. So, if an individual is out of status, but is not unlawfully present, then departure from the United States will not trigger any inadmissibility bar.