Employee Benefits: H-1B Wage Requirements

Companies offer benefits, or perks and compensations for services, as a means to attract highly skilled employees. As some of the most highly skilled professionals in the American workforce, H-1B employees are often recipients of attractive benefits packages, including paid vacation, health care, stock options, etc. For employers, whether the value of benefit services provided to H-1B employees contributes to the minimum wage requirement depends on several factors.

Benefits for H-1B Employees

According to federal regulation, benefits offered to H-1B employees must be the same benefits offered to similarly employed U.S. workers. Though the H-1B employee is a temporary employee, they may not be excluded from any type of benefits or services offered by the company. An H-1B worker may opt to receive different benefit packages than their U.S. counterparts or opt out of a service altogether. For example, an H-1B worker can choose not to enroll in the company’s health insurance plan due to the minimum contributions required to maintain a plan. In this case, a similarly employed U.S. worker may reap the benefits of the company provided insurance plan without risking compliance to federal regulations. If an H-1B petitioning company is multinational, and a H-1B worker travels in and out of the United States, the requirement for comparable benefits to U.S. workers depends on the period of the H-1B worker’s stay. Regardless of the benefits provided, the H-1B petitioning employer must comply with all non-discrimination regulations outlined in Article VII of the Civil Rights Act 1964 when allocating benefits.

Minimum Wage Requirements

To comply with federal standards, H-1B employers are required to pay their employees a prevailing wage adjusted for the occupational classification of employment. The monetary values of benefits provided may be counted towards the required wage:

Benefits provided as compensation for services may be credited toward the satisfaction of the employer’s required wage obligation only if the requirements of paragraph (c)(2) of this section are met (e.g., recorded and reported as “earnings” with appropriate taxes and FICA contributions withheld and paid). 20 CFR 655.731

If you have any questions or concerns regarding satisfying minimum wage requirements through benefit contributions, or any other questions regarding providing benefits to H-1B employees, feel free to schedule a consultation.

Silicon Valley University Withdraws from SEVP

On April 30th, Silicon Valley University in San Jose, California withdrew its SEVP certification, or the Student and Exchange Visitor Program. The certification, which is accredited at the federal level, allows non-immigrant students to obtain eligible status while studying at a college or university in the United States. Effective June 30th, the school’s Student and Exchange Visitor Information System, or SEVIS, will no longer be available. Therefore, students currently enrolled at Silicon Valley University will face challenges as the late June date approaches.

What does this mean for Silicon Valley students?

As of April 30th, Silicon Valley University no longer issues new Form I-20’s, or Certificates for Eligibility for Nonimmigrant Student Status. However, for non-immigrant student currently enrolled in Silicon Valley, these students must take steps before June 30th to maintain active status. If a student is in active status, or is currently participating in OPT or STEM OPT through the university, they have less than two months to:

  • Complete their degree or program,
  • Seek a change of Status, or
  • Enroll at a different certified university or college.

Failure to complete the above will result in the termination of the student’s records in SEVIS and a student will be considered out of status. If they elect to discontinue their studies the SEVIS record will be terminated as ‘authorized early withdrawal’.

For students who are still abroad, and have not yet enrolled in Silicon Valley University, the change will make a tremendous impact on their study plans. Without SEVP certification, any Form I-20 issued by Silicon Valley University or visa issued for the student to enroll in the school is invalid, and students will be denied entry at a port of entry. These students, as well as students currently enrolled in Silicon Valley University, will receive advisement from the school as the coming deadline of Jun 30thapproaches.

Any non-immigration students with questions about the options available to them can call the SEVP Response Center at 703-603-3400.

USCIS Cracks Down on H-1B Fraud & Abuse (Site Visits)

USCIS recently announced new measures to protect American jobs and comply with initiatives coming from the Trump Administration. The announcement serves as the first step for a new direction focused on greater oversight of both H-1B employees and employers. Specifically, for employers, worksite visits will now become more strenuous for those companies identified by USICIS as being at risk of fraud or abuse.

Targeted Approach

Over a year ago, President Trump’s executive order, Buy American Hire American: Put Americans First, sparked a series of policy announcements from USCIS, DHS, and other government organizations. Since the beginning of the new wave of immigration policy from the Trump White House in 2017, worksite compliance visits have increased in frequency. In the announcement, USCIS revealed a new targeted approach for site visits, focusing on instances in which:

Therefore, companies that fall within these categories should expect greater scrutiny from USCIS officers. Through the direction of Trump administration officials, USCIS plans to insure companies continue to prioritize employing American workers before outsourcing labor to foreign nationals. However, U.S. companies struggle to find American employees with enough human capital to be competitive and must attract highly skilled workers from abroad. Although foreign national highly skilled workers are an essential element to the intellectual labor force in the United States and contribute billions of dollars to the U.S. economy, many Americans continue to believe that H-1B workers decrease opportunity for American workers. Thus, the new initiative from USCIS continues to disadvantage foreign workers in the name of “protecting American workers.”

H-1B Dependent Employer (LCA)

When there is not a sufficient supply of highly skilled workers in the United States, companies can fulfill demand through sponsoring foreign nationals through the H-1B program. For companies in high tech industries, which require years of advanced training and understanding of complex computers systems, the H-1B program is a vital tool in maintaining a competitive edge in today’s global economy. However, those companies that opt to participate in the H-1B program must be conscious of the proportion of their foreign workforce, or risk becoming labeled as a H-1B Dependent Employer.

What is an H-1B Dependent Employer?

According to federal regulation, an employer is considered dependent on H-1B employees if the following applies:

  • 25 or fewer full-time equivalent employees and at least eight H-1B nonimmigrant workers
  • 26 – 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers
  • 51 or more full-time equivalent employees of whom 15 percent or more are H-1B nonimmigrant workers.

Every potential H-1B employer must file a Labor Conditions Application, or LCA, which includes a section for employers to identify their H-1B dependency status. Both fulltime and part time employees are included in determining H-1B dependency status.

Special Requirement for H-1B Dependent Employers

Once an employer is identified as H-1B dependent by the LCA, several new conditions apply to any additional H-1B petition. Under the American Competitiveness and Workforce Improvement Act (ACWIA), employers that are H-1B dependent must declare that they have not displaced or fired a U.S. worker in a similar position before hiring an H-1B employee. Moreover, H-1B dependent employers may not displace a U.S. worker, in a similar position, within its own workforce 90 days prior and 90 days after the filing of the H-1B petition. In addition, H-1B dependent employers may not place H-1B employees in a position with a subsidiary or affiliateif the transition would displace a similarly situated U.S. worker.  H-1B dependent employers must also continue to make efforts to attract U.S. workers and prioritize U.S. workers when recruiting for new or open positions. According to ACWIA, H-1B employers are exempt from these attestations/conditions only if the potential new H-1B employee receives wages (including cash bonuses and similar compensation) at an annual rate equal to at least $60,000 or the H-1B employee has attained a master’s or higher degree (or its equivalent) in a specialty related to the intended employment.

Hope for H-4 EAD: Notice & Comment Period (USCIS)

As previously reported, the Trump Administration continues to consider a proposal to terminate the H-4 Employment Authorization Document (EAD) program following a lawsuit from an anti-immigration interest group, SAVE Jobs USA. Early this month, the director of the United States Customs and Immigration Service (USCIS), Lee Cissna responded to protests from members of Congress urging the Trump administration to reconsider plans to end the program, citing the immense impact the cessation of benefits would have on families. Director Cissna’s neutral response did not boost confidence in the longevity of the H-4 EAD, but Director Cissna did confirm the opportunity for supporters of the program to participate in a public comment period before any official end.

Impact of Public Comment

The Trump administration, which controls both the Department of Homeland Security (DHS) and USCIS, will hold a period of public comment on the H-4 EAD issue. During the Obama administration in 2015, the responses from a similar period of public comment substantially influenced the ruling that allowed spouses the opportunity to work while their partner is under an H-1B program. The Federal ruling in 2015 included commentary “Supporting the Rule,” “Requesting Expansion of the Rule,” “Opposing the Rule,” and “Requesting a More Restrictive Policy.” Like in 2015, the period of public commentary will include the narratives and pleas of those in favor. Therefore, anti-immigrant and U.S. labor organizations, like SAVE Jobs USA, will have 60 days from the beginning of the public commentary period to submit letters or online commentary through www.regulations.gov/. All argument in favor of and against employment authorization document for H-4 spouses will be considered by the Trump administration.

Hope for H-4 EAD

Although opposition is great against the EAD program, thousands more are in support of the continued implementation of the program. Over 70,000 spouses, predominantly women, have been empowered through maintaining an independent income from their H-1B partner. Additionally, families are able to maintain a sustainable household with a duel income, a feat nearly impossible before 2015. Supporter, beneficiaries, and friends of the H-4 EAD program have an equal opportunity to provide arguments in opposition of the proposal to end the H-4 EAD program. All testimonials, arguments, and pleas will be considered during the period of public comment. If enough support is expressed by the public, the DHS may reconsider terminating the employment program for H-1B spouses. We will update readers once the period of public comment begins.

DHS Ends TPS for Nepal (Trump & TPS)

On April 26th, Secretary Kirstjen M. Nielsen terminated Temporary Protected Status (TPS) for Nepal. The Department of Homeland Security (DHS), and Secretary Nielson, delayed termination of TPS for 12 months, and protections will officially end on June 24th, 2019.

TPS for Nepal

The order comes a day after the three-year anniversary of one of the deadliest earthquakes in history. On April 25th, 2015, a 7.8 magnitude earthquake devastated some of the most densely populated areas in Nepal. Thousands of people were instantly killed by failed buildings and falling debris, and even more were left homeless by the quake and aftershocks. Due to the extreme situation in the country following the disaster, DHS granted TPS to foreign nationals from Nepal. The environmental disaster conditions persisted for the next couple of years, and roughly 9,000 Nepalese immigrants entered the U.S. under Temporary Protected Status. After hundreds of thousands of homes were destroyed in Nepal, many sought refuge in the U.S. for the opportunity to escape homelessness. Now, Nepalese citizens must obtain separate immigration status, return to Nepal, or risk lapsing into undocumented status after June 24th, 2019.

Trump Administration and TPS

As previously reported, Nepal is among a series of countries that have lost TPS since Trump gained office. Similar to the end of TPS for Haiti, critics of the DHS decision note the continued dire situation in Nepal following the earthquake. Three years later, many Nepalese residents remain homeless as the country attempts to recover from the devastating hit to infrastructure during the 2015 earthquake. However, DHS claims that Nepal has made “substantial progress in post-earthquake recovery and reconstruction,” and TPS is no longer necessary. Regardless of the situation in Nepal, the Trump Administration has declared that Nepalese TPS holders must coordinate a new legal visa status or leave the United States.

USCIS Announces New Security Measures for Green Card Delivery

Beginning April 30th, the U.S. Citizenship and Immigration Service (USCIS) will begin implementing the Signature Confirmation Restricted Delivery Service provided by the U.S. Postal Service (USPS) for all mailed Green Cards and other secure documents. To receive a secure document or Green Card, recipients must provide the mail courier with a photo ID to sign for the secured mail.

Phase One

USCIS announced that the new secure delivery measure will begin operating first through documents that must be re-mailed. Typically, USCIS must re-mail documents because the original address of the recipient was out of date or incorrect.  The new delivery method will guarantee that sensitive documents are provided to the correct recipient.  If a document is returned as undeliverable to USCIS, the re-mailed package will require a verified signature upon re-delivery. Documents included in this new secured delivery include: Permanent Resident Cards (Green Cards), Employment Authorization Cards (EAD), and Travel Booklets. After phase one, USCIS plans to incorporate the secured delivery method for all secured documents sent through mail.

What if I can’t sign for my Green Card?

If you have recently changed your address, it is likely that your documents have been mailed to the incorrect address. Therefore, to have a green card or EAD mailed to the correct address, recipients must be present during delivery. However, for those who may be away from their home for travel or work, recipients may designate an agent to sign on their behalf. According to USCIS, to designate an individual to sign on your behalf, you must complete either at PS Form 3801, Standing Delivery Order (PDF)orPS Form 3801-A, Agreement by a Hotel, Apartment House, or the Like (PDF). Thus, a green card recipient, who may be away from the house during the day, can designate their spouse or roommate to sign for the secure document. Additionally, recipients of secured documents can sign up for USPS Informed Deliveryto track their documents and opt for “hold for pickup” to pick up their documents at a local post office at a specified date and time.

Navigating LCA: Working From Home (Telecommuting)

Over the last few years, the internet has changed the very structure of today’s companies. With a computer and a strong internet connection, associates from across the U.S. and around the globe can now hold strategic meetings and negotiate international deals without having to leave the comfort of the domestic office. For many, the internet has allowed for greater flexibility in the workplace, allowing employees to complete daily tasks online from the comfort of their home. However, telecommuting, or the process of working online from a remote location, can create complications for H-1B beneficiaries working outside of the location listed on their Labor Condition Application (LCA).

LCA Requirements

A Labor Condition Application, or LCA, is a document filed by a petitioning H-1B employer that accompanies the H-1B petition. Unlike the actual H-1B petition filed with the U.S. Citizenship & Immigration Services (USCIS), the employer files the LCA with the Department of Labor (DOL) to ensure proper wage, legitimate worksite location, and other standard employment regulation. If there is a change in the conditions of employment, like the location of work, petitioning employers must file an amendment to the LCA or an amended H-1B petition with a few exceptions. However, if an H-1B visa beneficiary works from home through an online server, hosted by the worksite listed on their LCA, does an employer need to file another LCA?

Telecommuting and LCA

Probably. Although telecommuting has been a popular practice for the last ten years, the Department of Labor does not provide explicit guidance for LCA compliance in instances of telecommuting employees. Therefore, if a H-1B beneficiary decides to travel to another state to visit family for a few weeks, while continuing to work from an online server provided by their sponsoring employer, a new LCA may be necessary. Similarly, if an employee chooses to work from home a number of days out of the week, an additional LCA is needed for the employee’s place of residence. Although the online platform is based in the location provided on the original LCA, the Department of Labor tends to interpret occupational location by the physical worksite location. In instances where the employee works at a remote location for a limited time in a year, an exception exists under the current regulations. Such a short-term placement or assignment would not require a new LCA and/or an amended petition if it is of peripatetic nature.

With all the complicated rules and regulations involved with the H-1B & the LCA process, it is recommended to consult an attorney knowledgeable in this process to develop the best course of action.

USCIS Director Responds to Concerns Regarding H-4 EAD Program (DHS to End H-4 EAD)

In early March, 15 members of Congress sent a letter to the secretary of the Department of Homeland Security (DHS), urging Secretary Nielsen to reconsider the proposal to end the H-4 EAD program. Following an appeals court decision, DHS announced that it would delay its announcement to officially end the program, which allows the spouses of H-1B workers to work legally for pay during the period of their stay. In the letter, members of Congress urged Secretary Nielson to reflect on the profound impact of removing H-4 spouses from the category of non-immigrants granted employment authorization, noting the effect the change would have on the economy. Specifically, highly skilled H-1B workers will be discouraged from relocating their families to the United States, lowering the pool of high skilled workers available in profitable industries. The California members of Congress reminded the Secretary that many H-1B visa holders must relocate to areas with high demand for high skilled technology professionals (e.g. Silicon Valley), areas which have a high cost of living. Few families can sustain a household on the single income from the H-1B holding spouse. The letter also reminded Secretary Nielson that over 100,000 spouses, mainly women, were granted the opportunity to provide for their household through the H-4 EAD program. The Department of Homeland Security, and Secretary Nielson, did not directly respond to the appeal from members of Congress. Instead, the director of the United State Customs and Immigration Service (USCIS) Lee Cissna responded on behalf of DHS.

USCIS Response

Director Cissna offered no indication of responding to the appeal from the 15 members of Congress. In his letter, Director Cissna reminded the members of Congress that both DHS and USCIS are required to adhere to the Executive Order (EO) Buy American, Hire American, which prioritizes U.S. workers and economic growth within the U.S. Since the guidelines for the EO are unclear, it is the obligation of DHS to propose new measures that align with the framework of President Trump’s EO. Director Cissna notes that the “public will be given an opportunity to provide feedback during a notice and comment period on any revisions to regulations that DHS determines appropriate, including revisions relating to the rule providing employment authorization to certain H-4 nonimmigrants.” The letter largely ignores the facts presented in the letter from members of Congress and makes no indication that the H-4 EAD program will continue for the long term.

Appeals Court Rules Against Trump Administration: Sanctuary Cities

Last week, a federal court ruled against the Trump Administration’s attempt to punish law enforcement working in “sanctuary cities,” upholding a district court decision. The Trump Administration policy set to remove federal funding from city law enforcement agencies as a way to pressure state and local authorities to assist Immigration and Custom Enforcement (ICE) officers with federal immigration cases.

The Case

In an attempt to force local and state compliance with immigration investigations, the Attorney General imposed conditions for the Byrne JAG grant, a federal fund for law enforcement entities. The City of Chicago, passed a Welcoming City Ordinance, which protected residents from revealing their legal status and prohibited officers from detaining individuals based solely on the question of that individual’s status. The city could therefore, not comply with the conditions set by the Attorney General and filed suit.

Ruling

According to the Washington Post, a three-judge panel on the 7th U.S. Circuit Court of Appeals in Chicago unanimously ruled against the Attorney General, Jeff Sessions. The court found that the Department of Justice had overstepped separations of powers, affirming the ruling of the district court. The judges agreed that the matter before the court did not relate to the validity of sanctuary cities, or city that do not actively assist in federal immigration investigations. Instead, the matter concerned the very “bedrock principles of our nation.” The judges concluded that the Justice Department could not withhold funds based upon an immigration matter, strictly because the Constitution enumerates the power of funding to the legislative branch. The federal funds, of which the Justice Department attempted to withhold, are allocated to peacekeeping efforts by Congress without any condition related to immigration matters. Thus, the Department of Justice was outside its power to deny cities of federal funding based on sanctuary status.