HR Liaisons MeetingAugust 19,2010

Agenda• Welcome• Tri-Rail Employer Discount Program• Benefits Update• Immigration Basics: H-1B Visas• Other Updates• Wrap Up

Tri-Rail Employer Discount Program

Tri-Rail Discount• Effective immediately, employees may take advantage of

the Tri-Rail Employer Discount Program

• FIU employees receive a 25% discount on monthly or 12-trip tickets

• Tri-Rail Offers:

• A relaxed commute in air-conditioned comfort

• Convenient ticket purchasing at all train stations

• Free parking and easy connections to Metrorail and Metromover

• Access to the Emergency Ride Home Program, which provides free taxi service in an emergency situation to those registered with South Florida Tri-Rail’s EDP

• Access the online EDP member application by visiting www.tri-rail.com and clicking on “Programs”

Benefits Update

Benefits UpdateAdoption Benefits Program

• Effective July 1, 2010, the Florida Legislature passed House Bill 5305 that removed Adoption Benefits Program from Florida Statutes

Open Enrollment

• Open Enrollment begins on Monday, September 27 and ends on Friday, October 22

• In preparation, please ask faculty and staff in your area to visit http://hr.fiu.edu/uploads/Mail/08_16_2010/Preparing_for_Open_%20Enrollment.pdf

• Guide provides information on how to verify your mailing address, access PeopleFirst and upcoming “Understanding Your Benefits” workshops

Immigration Basics:Overview of Procedures

andObligations for Employers

Part 1: Nonimmigrant Visas

Fragomen, Del Rey, Bernsen & Loewy, LLP

Aaron M. BlumbergAssociate

Fragomen, Del Rey, Bernsen & Loewy, LLP

One Alhambra PlazaSuite 600

Miami, Florida 33134Telephone: (305) 774-5800

Fax: (305) 774-5800E-Mail: ablumberg@fragomen.com

Immigration Overview

3 Categories of People in the U.S.- Citizens- Immigrants- Nonimmigrants

NonimmigrantsComing to the U.S. temporarily

Retain residence abroad

Dual intent - only for H’s and L’s

“Alphabet Soup” - A-V

Important Visas to Know: H-1B, TN, E-3, F-1, J-1

Immigrants vs. nonimmigrants

Immigrants

“Green card holders” = “permanent residents” = “immigrants”

Coming to U.S. permanently

Numerically limited- Visa bulletin- Priority date

Can become U.S. citizens after 3 - 5 years

Understanding the Documents

Visa Stamp

I-94 (D/S)

I-94 (Expiration Date)

I-797 Approval Notice & I-94 Card

I-20 (F)

DS-2019 (J)

Form I-9

H-1B Work Visa

H-1B visas are for temporary (nonimmigrant) workers engaged in a specialty occupation that requires (1) theoretical and practical application of highly specialized knowledge and (2) attainment of a bachelor's or higher degree, or equivalent experience, in the specific specialty for entry into the occupation.

“Specialty Occupation” -- Entry level requirement = minimum Bachelor Degree or equivalent

3 for 1 rule -- 3 yrs. experience = 1 yr. of college

Labor Condition Application (LCA) certified prior to filing petition

Six-year maximum stay (can extend under certain circumstances - AC-21)

65,000 annual ceiling, of which 6,800 are set aside for citizens of Chile and Singapore

20,000 additional visas allocated to holders of advanced degrees from U.S. universities

H-1B Category: USCIS Provisions

H-1B (continued)

Reasonable costs of return transportation for dismissed employee

Cap Subject vs. Cap Exempt- Cap Subject: File on 4/1 for a start date of 10/1

- Cap Exempt: File at any time

Find out who sponsors H-1Bs: http://www.myvisajobs.com/

What are the government fees? ($320, $500, $750/$1500); What are standard legal fees?

H-1B (continued)

H-1B visas are valid for 3 years and can be extended for an additional 3 year period for a total of 6 years in H-1 status. Previous stays in L-1 or H-1 status (but not L-2 or H-4 dependent status) count towards maximum period of stay. (See later slide on Calculating Max Stay.) H-1B visas can be extended past the 6-year maximum in certain situations.

Cap Gap Automatic Extension

Automatic Extension of your OPT work authorization to September 30th: This happens if your approved OPT end date (on your EAD card) is April 1st, 2009 or later. - For example:  if your OPT ended on or before March 31st, you

would not be eligible for extension of work authorization until September 30th, 2009. However, you would be allowed to stay in the US if you otherwise maintain your status.

Extension of your F-1 “duration of status.”  This happens if your OPT had expired before April 1st, 2009.  Again, you would be allowed to stay in the US if you otherwise maintain your F-1 status, but you are not authorized to work until the H-1b petition is approved and goes into effect October 1st, 2009.

Eligibility:- H-1B petition has been timely filed (within the acceptance

period) - Requests an employment start date of October 1st- Requests a change of status

Beware of international travel during the cap gap!!

Labor Condition Application (LCA)

Obligations

Procedural Requirements of the LCA

The U.S. employer must file a Labor Condition Application (LCA) with the Department of Labor. The employer must attest to certain things in the LCA, such as paying the FN at or above the prevailing wage for the position.

U.S. employer must post the LCA and, within 24 hours after filing, must include the LCA and other documentation in a public access file.

After the LCA, the employer must file an H-1B visa petition with USCIS. On the USCIS petition, the employer must show that job offered is professional and that there is a nexus between foreign national’s credentials and the position offered.

General Requirements LCA required for every H-1B petition and all H-1B1 & E-3 applications

Purpose – to protect wages and working conditions of U.S. workers

Employer makes attestations on LCA

10 day posting requirement at work site (2 locations)

LCA form filed electronically with DOL

Public Access File (PAF) created and maintained within 24 hours of filing LCA

Copy of LCA provided to employee on/or before 1st day of employment.

Information Needed to Prepare the LCA

Job title

Salary

Job location

Job description

Minimum requirements for the position

LCA Attestations

All employers must attest:Working conditions of U.S. workers will not be

adversely affectedThere is no strike or lockoutH-1B workers will be paid the higher of the prevailing

or actual wageNotice has been provided to all employees

WagesActual Wage

paid by the employer to US workers in the same position at the same work site with similar experience and qualifications

Prevailing Wage State Workforce Agency (SWA) Published survey Other source

Required Wage – higher of the actual or prevailing (must meet 100% of prevailing)

Prevailing Wage

Determine Prevailing Wage Source

Must be for area within commuting distance

Use weighted average (mean) or median

Employer must pay at least 100% of prevailing wage

Fringe Benefits

Same benefits as “similarly situated” US workers

“Multi-national” H-1B worker may stay on “home country” benefits plan, if:- in US less than 90 consecutive days;- if greater than 90 days - reciprocal treatment for US

expatriates, employed abroad, foreign benefits are comparable, US health coverage, same “direct benefits”

Documented in Public Access File

Public Access File (PAF)

To be maintained by employer

For every LCA

Retain for 1 year from expiration of LCA or withdrawal of LCA

Must be available for inspection by anyone

Must be created within one working day after the filing of the LCA

Required Documents for the PAF

1. Copy of signed approved LCA

2. Statement of actual wage (Handout 6)

3. Explanation of actual wage system (Handout 7)

4. Copy of document used to establish the prevailing wage

5. Posting confirmation (Handouts 8 & 9)- electronic or manual posting

Required Documents for the PAF (cont’d)

6. Summary of benefits *

7. Cover pages 9035CP *

8. If change in corporate structure, sworn statement

* may be placed in a Master File

LCA penalties

Assessment of back wages

Civil fines of $1,000 - $35,000

Debarment from receiving approval for nonimmigrant and immigrant petitions for 1-3 years

Debarment from filing labor certifications or LCAs for 1-3 years

Fragomen Specific Policies

and Procedures

How to Process an H-1B

The IHP (Immigration Home Page)

The Dept must obtain authorization from HR to proceed with the sponsorship

The Dept and/or HR MUST initiate a case online on the IHP (https://fiu.fdbl.com/) by completing the “Nonimmigrant Visa Employer Questionnaire”

Once we get the employer questionnaire, we contact the employee to complete the employee questionnaire

We cannot begin working on a case until we have the completed Employer and Employee questionnaires.

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When Should I Initiate a Case?

THE EARLIER THE BETTER!

Recommended: Initiate Cases 6-8 months in advanceBUT, do not issue filing fee checks right away

Fragomen Rush Fees vs. USCIS Premium Processing Fees

Fragomen Rush Fee = $735

The Fragomen Rush Fee must be paid when a case needs to be FILED within 60 days

USCIS Premium Processing Fee = $1000

Normal USCIS Processing Time = 3 months

Premium Processing = 15 calendar days

When is Premium Processing

NOT Needed?Premium Processing is almost never NEEDED for a

change of employer or extension of H-1B status

Change of Employer = Employee is currently working for another employer in H-1B status- We can only file a change of employer if the employee has

not been out of work for more than 30 days- Example: Employee stops working for Company A on 7/10/2010; it

is now 8/19/2010 and we want this person to start working ASAP. This person must depart the US and apply for the H-1B visa abroad, change of employer is not allowed in this situation

Extension of Status: As long as the extension petition is filed BEFORE the current H-1B expires, the employee is authorized to work pursuant to their receipt notice for up to 240 days

When is Premium Processing

Sometimes Needed?Change of Status: Most common is changing from

F-1 or J-1 to H-1B; employee cannot start working until petition is APPROVED

Consular Notification: When the employee is abroad- Please factor in added delays such as scheduling a

visa appointment and getting the visa stamp

Who Pays for Premium Processing?

Employer: When the University needs the individual to start working immediately

Employee: When the employee wants the approval so that they can travel or for piece of mind

Prevailing WagesTwo ways to get PW: Through Dept of Labor OR through FLC

Data Center (website)

DOL Wages: DOL will issue a wage by going on FLC Data Center themselves and finding the appropriate job code and wage level SAFE HARBOR

When we get the wage on our own, we run the risk of creating liability for the University

Wages for Professors are straight forward and do not require DOL assistance

Wages for Computer and Administrative Jobs should be sent to DOL for their wage determination

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Actual Wage Memo & Form

Should be completed and submitted along with questionnaire

We need to demonstrate that the University is paying H-1B employees at least, if not more, than all other similarly situated employees

University Actual Wage Form

Please complete this form for all others in the Department/Division/Center with the same classification as the H-1B employee.

Name Employee ID #

Title Date Started

at University

Date Started in New Position

Contract Length

9/12

Annual Salary

Highest Degree

Year Degree Earned

Institution where Highest

Degree Earned

Jonny Boy

65873

Computer

Programmer

08/01/2007

N/A

12

$43,000

BS

2007

Florida

International University

Marilyn Monto

65874 Computer

Programmer

01/06/2002

1/09/2009

12

$88,000

Masters

1992

University of

Miami John Stuck

65875

Computer

Programmer

08/20/2009

N/A

12

$52,000

BS

1998

Emory

University

Jhonny Cashe

65876

Computer

Programmer

08/23/2000

8/28/2001

12

$32,000

AA

1999

Miami Dade

College Troy Target

65877

Computer Systems Analyst

01/19/2009

N/A

12

$48,200

BA

2008

Florida

International University

The salary of the prospective/current H-1B employee has been determined by comparing the education, experience, specialized knowledge and other relevant factors with those for all other persons in the same job classification within the Department/Division/Center.

Department/Division/Center Chair/Director Printed Name and Title Date

MEMORANDUM To: Public Access File From: Kenneth G. Furton, Dean of the College of Arts & Sciences Re: Actual Wage Memorandum for Manny Delcarmen Date: August 19, 2010 As indicated by the attached Actual Wage Form, in addition to Manny Delcarmen, there are three other Computer Programmers in the College of Arts & Sciences. Two of those employees earn a higher salary as they both have more years of experience in the field and one of them holds a Master’s Degree. The reason that Manny Delcarmen’s salary is lower is because he just recently obtained his Bachelor’s Degree and has only 1 year of work experience.

Offering Jobs to Potential H-1Bs

Make it clear that the job offer is contingent upon obtaining valid work authorization

NEVER promise someone an H-1B!

H-1B prevailing wages have increased significantly this year

H-1B denials have increased as well

Think about H-1B sponsorship when you hire someone on OPT

Additional H-1B Issues

Maximizing H‐1B Time:1 year Extension: If PERM has been filed at least

365 days prior to the date the H‐1B expires [AC 21 §106(a)]

3 year Extension: If an I‐140 has been approved, and the individual cannot adjust status due to visa retrogression (usually someone from China or India) [AC 21 §104(c)]

No “Benching” H-1B Workers Must start payroll when H-1B “enters into employment”, i.e.,

when he/she first makes him/herself available for work or comes under control of employer but no later than 30 days after entering US or If in US, 60 days after start date on petition or change of

status by USCIS, whichever is later

No exception where awaiting license

No unpaid status due to lack of work

Unpaid leave OK if: H-1B unable to work Worker’s voluntary request

H-1B Portability Enables nonimmigrants currently in H-1B status to begin new

employment upon USCIS receipt of an H-1B petition by new employer. Though there is no official guidance, time from termination of earlier employment to filing of new petition should be minimal (usually less than 30 days).

Eligibility Requirements Must have been lawfully admitted into the U.S No unauthorized employment subsequent to lawful admission Non-frivolous H-1B petition must be filed for new employment before

expiration of current status

Don’t forget – porting from cap-exempt nonprofit to a for-profit employer means that the foreign national is submit to the H-1B cap.

H-1B Portability (continued)

•Employment Guidelines- LCA should be certified before employee starts work- Permissible for employee to start on day USCIS

received H-1B petition- If H-1B petition denied, employee must be taken off

payroll and stop work immediately

H-1B Portability (continued)

Travel Considerations: If employee must travel, he/she must carry:

- Valid unexpired passport - Previously issued H-1B visa stamp (except Canadians)- H-1B receipt notice (if available) or other evidence of

timely filing that can be validated through a query in USCIS CLAIMS System

- Copy of previously issued Form I-94

Terminated H-1B Employees

When are they out of status? Is there a “grace period?” Technically out of status upon last day of actual productive

employment In practice, USCIS provides “reasonable time” to file change

of status or new employer petition after termination of employment

Is changing to B-2 status an option? Employers must offer to pay principal’s transportation costs

home (preferably in writing at the time of termination)

Other Temporary Work Visas

E-3 Visa for Australian Nationals

Visa category for citizens of Australia to take up professional positions in the U.S. – 10,500 per year available

Job offered must be for a “specialty occupation” as defined for H-1B visa category

Requires certified LCA

Visas can be applied for at consulates without prior USCIS approval

Filings can be submitted to USCIS, but premium processing is not available

2-year validity; renewable indefinitely

Dependent spouses may apply for employment authorization

TN Category for Canadian and Mexican Professionals

Must be nationals of either Canada or Mexico

Coming to U.S. to work in profession listed on NAFTA

schedule

Generally require a Bachelors degree in field

Canadians apply at border (non-national dependents

must obtain visa at U.S. Consulate)

Mexicans apply at Consulate

Three year stay, renewable in three year increments

Extensions and changes of status may be filed at USCIS Service Center

Managing Immigration in an Economic

Downturn

Impact of Termination on Nonimmigrant Visa Status

Options available to terminated employees Depart U.S. Change of status to another visa classification Secure position with another U.S. based employer

Timing No “grace period” in the Regulations Unlawful presence issues Withdrawal of petition

Particular considerations for H-1B employees LCA issues Return transportation

Dependents

Impact of Changes in Conditions of Employment on Nonimmigrant Visa

Status

Benching

Changes in compensation

Changes in position

Changes in job location Position remains in U.S. Position located abroad

Thank You!

If you have additional questions, please send me an email:

ablumberg@fragomen.com

This presentation is not intended to be construed as legal advice.

Other Updates

Other Updates• Faculty under- and over-payment issue have

been addressed from the employee perspective

• Payroll is now focused on processing payroll transfers for the department/projects impacted

• Salary Encumbrances will be rolled out in the next few months

• ALA Expiration Reports will be e-mailed in the next several weeks for your review and action

• Additional information is forthcoming

• The Bonus Policy is now available at http://policies.fiu.edu/files/734.pdf

Upcoming Events/DeadlinesEventStaff Senate Survey Deadline to Respond

HR Customer Service Survey Deadline to Respond

PEP Forms Due

Benefits Open Enrollment

LocationN/A

N/A

Division of Human Resources

N/A

Date/TimeTuesday, August 24

Friday, August 27

Monday, August 30

Monday, September 27 to Friday, October 22

Wrap Up

Questions or Comments?