Law Office of Leila Freijy PLLC
Immigration & Compliance Law 
H-1Bs and Prevailing Wage Determinations in the News
H-1B Visa Number Update  

The USCIS has updated its count of FY2012 cap-subject H-1B petitions and advanced degree cap-exempt petitions receipted. As of 7/29/11, approximately 22,700 H-1B cap-subject petitions were receipted against the annual quota of 65,0000.

USCIS has receipted 13,800 H-1B petitions for aliens with advanced degrees from U.S. institutions against the additional annual quota of 20,000.
Prevailing Wage Determinations Halted

 

The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. All Center resources are currently being utilized to comply with this court order.

 

The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC.  

 

While this court order pertains to the H-2B visa category, it is unclear if this means that the Department of Labor (DOL) will only issue H-2B redeterminations until they have cleared them; however, it would appear that prevailing wages for PERM applications will not be issued for the near term either. 

 

What this means is that our National Prevailing Wage Center (NPWC) will have to issue approximately 4,000 supplemental prevailing wage determinations.


While the NPWC anticipates being able to issue all of these 4,000 supplemental wage determinations before October 1, to do so before August 31 is physically and operationally impossible.

H-1B Approvals for Third Party Employment 

For the last couple of years, the USCIS has been requiring additional documentation where an H-1B beneficiary is going to be placed at a third party client site.

 

In many ways this makes sense.  The employer indicates that it wants to hire someone, but that individual will work at a completely different location at a third party site.  It stands to reason that the USCIS would want confirmation from that third party site that the individual is, in fact, working there and what they are doing.

 

The strongest evidence of this third party placement is the following:

  1.  Copy of the contract between the employer and the third party client.
  2. Copy of the Purchase Order identifying the individual who will be placed there, and
  3. A Statement of Work (SOW) from the third party client, confirming the individual's work location, job title, duties and requirements for the position.

In many instances, a SOW by itself has sufficed to date, and where the third party client has indicated in the SOW that the work was "on going" the USCIS typically approved the H-1B petition for the entire period requested. 

 

Recently, the USCIS has started restricting H-1B validity even when the SOW indicates that the assignment is on going with no end date.  In such cases, the USCIS is chosing to approve the H-1B petition for only a 1-year period, rather than the entire period requested.

 

Where contracts and purchase orders are valid for the full H-1B period requested, these should be included as supporting evidence with the H-1B petition.  Otherwise, where possible, a specific end date should be listed in SOWs obtained from third party clients. 

 

If this documentation is not possible, we will likely start to see more 1-year H-1B validity periods, which will result in earlier extensions and increased costs to H-1B employers.

Employer to pay back wages where H-1B petition was not withdrawn and return transportation not offered

 

An Administrative Law Judge (ALJ) found that an employer's failure to prove every element of a bona fide termination, including payment of the H-1B employee's return trip home, leaves the employer liable for wages for the entire period of authorized employment on the  Labor Condition Application (LCA).


Informing the immigration authorities that the employment has been terminated is the quid pro quo to be relieved of one of the duties the employer promises to fulfill when it signs the labor condition application: the duty to pay the required wage rate. Until it does, the employer remains on the hook for the H-1B worker's wages and benefits. For the price of a postage stamp, the Employer often can absolve itself of further liability.


The final element of a bona fide termination required the employer to pay for the terminated employee's trip home.  The employee returned home to Indonesia in November 2009 at his own expense, well before the employer sent USCIS the required notice of termination. Of course the individual couldn't work for the employer from Indonesia, so once he departed, the employer's wage liability might be thought to end. However, binding precedent says it continues.

 

The failure to prove every element of a bona fide termination leaves an employer who petitioned for an H-1B worker's admission liable for the entire period of authorized employment, which there is until September 21, 2011.

 

The employer was found liable for wages for the entire period of the LCA, at the actual wage it had been paying him before the attempted termination: $25.30 per hour for almost three (3) years.  This is true even though the individual never worked for the employer in H-1B status as he was terminated before his H-1B status would have begun.

 

The moral of this story is:

  1. Always withdraw an H-1B petition upon the termination of the beneficiary by notifying the USCIS, and
  2. In the event that the termination is initiated by the employer, the beneficiary must be offered return transportation to his/her country of residence.
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If you have any questions or concerns about the information provided in this email, please don't hesitate to contact me.

 

Sincerely,

 


Leila Freijy
Law Office of Leila Freijy PLLC
Contact
Leila Freijy, Esq.
2701 Troy Center Dr.
Suite 410
Troy, MI 48084
248.961.2196
248.287.4115 (fax)
  

(Of Counsel to Ellis Porter - Immigration Attorneys)

In This Issue
H-1B Visa Number Update
Prevailing Wage Determinations Halted
H-1Bs at Third Party Worksites
Employer Pays Back Wages Where H-1B Petition Not Withdrawn