Last week USCIS published additional guidance regarding the Employ American Workers Act (EAWA) for employers wishing to file H-1B petitions on behalf of skilled workers. EAWA was passed to make sure that companies that received federal funds under the Troubled Asset Relief Program (TARP) (or section 13 under the Federal Reserve Act) did not engage in hiring that would displace U.S. workers. Under EAWA, companies that received federal funding and wish to hire a new H-1B worker are categorized as "H-1B dependent employers," and must make additional statements to the U.S. Department of Labor regarding their attempts to recruit U.S. workers in their Labor Certification Applications.

After the enactment of EAWA, USCIS revised Form I-129, the Petition for Nonimmigrant Worker, to include a question specifically asking employers if they received funding from TARP or section 13 of the Federal Reserve Act. USCIS understands that some businesses who received covered funding may have subsequently repaid their obligations and may not know how to respond to Question A.1.d. If you have repaid your obligations, then answer "No" to Question A.1.d. When filing the H-1B petition, the petitioner should include evidence that the obligation was paid as part of the submission.

A valid LCA must be on file with DOL when the H-1B petition (with a copy of the LCA) is filed with USCIS. Processing delays or a denial of the H-1B petition may result if the LCA does not correspond with Question A.1.d of the H-1B petition, unless any inconsistency is explained to the satisfaction of USCIS. For example, if the LCA includes the additional statements, but Question A.1.d is answered "no," you can explain that you had received covered funding at the time of filing the LCA but repaid the obligation before filing the Form I0in However, please note that if you indicate on the petition that you are subject to the EAWA, but the LCA does not contain the proper declarations relating to H-1B dependent employers, USCIS will deny the H-1B petition. USCIS additionally reminds employers that EAWA applies only to new hires and not to H-1B petitions

It should be noted that EAWA only applies to new H-1B hires and not to H-1B petitions for the changing of status of an employee currently working for an employer under another visa category. Additionally, EAWA does not apply to H-1B petitions seeking extensions of H-1B status for an employee to continue working for the same employer.

Sinprasong made his initial appearance in U.S. District Court in Denver, where he was advised of the charges pending against him.  His next scheduled appearance in U.S. District Court in Denver is on February 17, 2010 for arraignment and a detention hearing.

According to the indictment, Opas Sinprasong was a citizen of Thailand who was in the United States on an E2 Non-Immigrant Principal Investor status.  While in the United States he ran Thai and Japanese restaurants in Boulder, Louisville, and Broomfield, doing business as Siamese Plate and Sumidas, and Siamese Plate on the go.

From 2001 through 2008, Sinprasong sponsored Thai nationals' admission to the United States as specialty workers for his restaurants.  He claimed in immigration applications that these workers possessed specialized skills that were essential to the efficient operation of his businesses.  The Thai employees were admitted to the U.S. for a term of two years, which could be extended for an indefinite number of two-year terms.

Sinprasong required all Thai employees to enter into a two-year employment contract.  The terms of employment per the contract included:

*          Employees are to pay the defendant a "bond" of 50,000 Thai baht (approximately $1,500 U.S. dollars).  The "bond" was a substantial amount of money to the Thai employees.

*          Employees were liable to the defendant for a penalty of 600,000 Thai baht (approximately $18,000 U.S. dollars) if the employee violated a term of the contract or caused damage to Sinprasong.  The employee was required to obtain a personal guarantor in Thailand, who entered into a contract with the defendant making the guarantor liable for the penalty if the employee violated a term of the contract or caused damages.

*          Required employees to pay the defendant a $3,000 dollar "visa preparation fee" which employees were to pay after arriving in the United States, in addition to other fees.

Sinprasong typically directed them to start work at his restaurants upon arrival to the U.S. and he paid them "under-the-table" while deducting portions of the $3,000 "visa preparation fee" and other fees from the payment check.  Once these fees had been fully paid through such deductions, which typically took between three and four months, the defendant helped the Thai employees obtain Social Security numbers and then started to report a portion of their wages and placed them on the official payroll of the restaurants.

The indictment continues that the defendant devised a scheme to defraud the Internal Revenue Service (IRS) and the Thai employees.  As part of the scheme, Sinprasong used a dual payroll system whereby he concealed from his payroll records the substantial overtime hours he directed the Thai employees to work, which was typically between 26 and 32 hours of overtime each week.  As a result, Sinprasong failed to report all of the wages paid to the Thai employees and failed to pay the Thai employees the overtime wages required by federal law.  The defendant filed employer's quarterly federal tax returns with the IRS as required, but the returns were materially false in that they failed to report the total wages paid to the Thai employees.  By failing to report all of the wages paid to the Thai employees, the defendant evaded paying the employer's portion of the Social Security and Medicare taxes due and owing on the unreported wages.

The indictment also alleges that Sinprasong filed false immigration applications and harbored illegal aliens.

"Mr. Sinprasong took advantage of vulnerable people, while at the same time lying to and defrauding our government," said U.S. Attorney David Gaouette.  "Such criminal conduct cannot be tolerated."
            "Greed is the primary reason anyone unlawfully harbors illegal aliens," said Kumar Kibble, special agent in charge of the ICE Office of Investigations in Denver.  "These criminals either cheat the aliens they harbor and/or they cheat their competitors.  ICE works closely with our law enforcement partners to identify these individuals and their suspected crimes, and ultimately bring them to justice."  Kibble oversees a four-state area which includes Colorado, Montana, Utah and Wyoming.

"IRS Criminal Investigation (CI) understands these types of crimes have a real impact on the employees of the business and CI is committed to working with our other law enforcement partners to ensure these illegal activities are investigated and brought to justice," said Special Agent in Charge Christopher M. Sigerson for IRS Criminal Investigation.

If convicted, the defendant faces not more than 20 years in federal prison and up to a $250,000 fine for each count of wire fraud.  He faces not more than 5 years imprisonment, and up to a $250,000 fine for each count of failure to pay employee federal payroll taxes.  Sinprasong faces not more than 10 years in federal prison, and up to a $250,000 fine for each count of false swearing in an immigration matter.  Lastly, the defendant faces not more than 10 years imprisonment and a fine of not more than $250,000 for each count of harboring illegal aliens.  Finally, the indictment seeks forfeiture of property.

This case was investigated by the U.S. Immigration and Customs Enforcement and the IRS Criminal Investigation Denver Field Office.

Sinprasong is being prosecuted by Assistant U.S. Attorney James Hearty, who is the section chief of the Major Crimes Section and Special Assistant U.S. Attorney Ivan Gardzelewski.