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| Employers' Quarterly Newsletter |
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| Fourth Quarter |
November 2008 |
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Greetings!
Welcome to our first quarterly newsletter designed specifically for employers. We know first hand that employers have different immigration needs than individuals. Through this newsletter, we will provide specific information on the latest regulations, trends and tips to make your job easier. At Badmus Law, immigration solutions really are at work!
Sincerely,
Martha James
Editor in Chief
Badmus Law Firm |
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When Does an Employer's Obligation to Pay an H-1B Employee's Wages End?
Recently, there has been a flurry of Department of Labor decisions relating to wages paid to H-1B employees. Specifically, employees are bringing claims of unpaid wages, while employers are asserting that they do not owe wages because the employee was terminated. The Department of Labor reviews the individual facts of each case, but has some guidelines it follows when making its wage determinations.
So when exactly does an employer's obligation to pay an H-1B employee's wages terminate? The law states that an employer is liable for wages until there is a bona fide termination of the employment relationship. Notice to and receipt by the employee of the termination is required. Additionally, the two parties must act as if the employment relationship has been terminated. While this may appear obvious, one recent case found that the employer had notified an employee that he was terminated, but thereafter continued to send the person out to firms soliciting business. The employer stated that its action in sending the person out to other firms was merely an attempt to assist the employee with finding new employment with other firms. The H-1B employee claimed he was still employed and soliciting business on behalf of the employer. The Dept. of Labor found that the employment relationship had not been terminated because the employer was initiating the "interviews" which the employee attended. The Dept. of Labor ordered the employer to pay the H-1B employee back wages representing an additional year and a half of work.
Furthermore, simply notifying the employee of the termination and acting as if a termination exists is not sufficient. The law also requires that the employer notify the Citizenship and Immigration Services (CIS) in writing that the employee is no longer employed by the company and withdraw the underlying labor condition application through the Dept. of Labor. This stems from the regulation that an employer is obligated to notify the CIS of any material changes in the employment of the H-1B employee. Until the CIS is notified of the termination and the H-1B is withdrawn, the employer is still obligated to pay wages to the H-1B employee. This was illustrated in a recent case where an employee was terminated in writing on March 16, but the employer did not send a letter to the CIS informing it of the change until July 29. Interestingly, the employee notified the CIS of the change in employment on or about March 31. The Dept. of Labor found the employer liable for wages from March 16 through March 31, when the CIS received notice that the employee was terminated. They opined that it did not matter who notified the CIS of the employment change, but only that the CIS be notified.
An employer, however, cannot rely on an employee to notify the CIS of the termination. It is incumbent on each employer to stop their obligation to pay wages to an H-1B employee by terminating the employee in writing, notifying the employee of the termination, acting in a manner consistent with the termination, and immediately notifying the CIS that the employee is no longer employed by it. Keeping to these straightforward requirements, an employer's obligation to pay wages to an H-1B employee would stop the day the employee stops working.
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 Social Security No-Match Letter Regulations Still Stayed Pending Outcome of Lawsuit
In 2007, the Department of Labor issued regulations changing an employer's obligations once the employer received a letter from the Social Security Administration informing it that there was a no-match in the social security numbers that the employer reported and the government's records. Specifically, upon receipt of such a letter, the regulations required an employer to take certain action to verify the social security numbers of the reported employees and if the problem could not be resolved within a specific period of time, the employee was to be terminated. It also changed the definition of whether an employer had "knowledge" that an employee did not have authorization to work in the United States. This regulation was challenged in Court and the Court issued an order prohibiting the government from enforcing the new regulation until the case is decided by the Court. Much wrangling has been going on since then. The Dept. of Labor has reissued the regulation, basically in the same form but with better explanations of its reasoning, and requested that the case be terminated. However, at the time of our publication, the regulations are still not being enforced and will not be until the Court lifts its prohibition. This is a significant regulation with very specific time frames built in. If enforced, it will change how companies do business with their employees. Therefore, we recommend that you watch our blog for up-to-date information relating to this regulation.
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Signs That Your Company May Be Raided 
Immigration and Customs Enforcement (ICE) is charged with enforcing the immigration laws, including authorization to work in the United States. Workplace enforcement actions ("raids") have increased significantly in the last two years. ICE has also changed its policy from levying civil monetary fines on employers employing unauthorized workers to now criminally prosecuting these same employers. In 2005, there were approximately 175 criminal arrests following raids. In 2007, there were approximately 863 arrests. People are being charged with federal crimes, ranging from harboring illegal aliens to money laundering to tax evasion, among other serious charges. Conviction of any of these charges may carry federal jail time in addition to monetary penalties. Often, company and individual assets are seized through federal forfeiture laws.
With this as a backdrop, how can you know if your company will be raided? There are often tips that will lead a savvy company to know it may be raided.
A company that receives a large number of Social Security no-match letters may be targeted for a raid. Additionally, if you begin hearing rumors of government interest in your company, pay close attention. Those rumors may have their genesis in fact. Often ICE will approach prior employees to get information on company hiring practices. Such a person may be disgruntled or have nothing to loose by providing information. ICE may also pick up an unauthorized worker and make a deal with that worker for information on the company. These employees have everything to gain by cooperating with ICE in their investigation and normally nothing to loose.
ICE works hand-in-hand with the Department of Labor (DOL) when it comes to raids. The DOL may conduct an I-9 audit as a precursor to a raid. The audit may provide evidence of unlawful employment practices and patterns. ICE also reads the papers. If your company is receiving media attention for hiring practices, ICE may follow. Union organization may also result in additional ICE scrutiny.
Another good tip is when ICE shows up at your workplace "looking for someone." This may be a ruse or it may actually be true. ICE may use this ruse to acquaint itself with the facilities prior to a raid, so it is not surprised during the raid. ICE personnel need to know entrance and exit locations, and the layout of the facility in addition to how many people may be in the facility. ICE rarely conducts a raid without prior reconnaissance and without a well thought-out plan.
You want to be prepared in case a raid occurs. Every company should have an emergency plan in place. The plan should include many items, including the following: How your company responds from the first time it is contacted by government personnel until the government walks out of the facility. Should government officials be given entry into your facility? Who should grant that entry? Who is going to follow them around and make note of everything the government does while on the premises? Has a warrant been issued? If so, who should review the warrant to ascertain the scope of a search? Who should immediately be called when any government contact is made? What to do if the government attempts to remove company equipment from the facility? Do any of your employees have medical issues or family responsibilities that will be a problem if they are separated and detained for long periods of time? Are employees required to remain indefinitely while a raid is in process?
Paying attention to warning signs may tip you off to an audit or raid. If you get the idea the government may be interested in your company, you should immediately conduct an internal I-9 audit to ensure compliance with current regulations. You should also contact immigration counsel to discuss your options and make sure you have a plan in place, and that all necessary employees have been trained on the plan. Many times, it is the low level employees that have first contact with government officials, and thus they must be trained on your company plan and the proper procedures to follow. Being forewarned really is being forearmed.
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 Texas Drivers License Rules Change
Recently, Texas has changed the requirements for obtaining a Texas driver's license and identification card. Under the new rules, these documents will only be issued to non-U.S. citizens when acceptable documentation is provided that confirms the applicant's lawful status in the United States. Upon issuance, the new card will only be valid until the proven lawful status expires. Also, "Temporary Visitor" will be designated on the licenses for all those in non-immigrant visa status. Further, driver's licenses will not be issued for those authorized to stay in the U.S. for less than six months.
Additionally, those who are in the United States illegally will not be granted either a driver's license or identification card and extensions for cards already issued will not be granted. If a person comes in with an issue that needs to be resolved with his driver's license, even though the card has not expired, and the DPS ascertains he is here illegally, his driver's license will be immediately revoked.
What this means to you, an employer, is that you are going to need to work closely with your employees and immigration counsel to ensure that your employees have the proper documentation at all time to show they are in status. You are going to want to file applications early to ensure they are approved before the person's visa status expires. In the past, as long as an H-1B visa extension petition was filed, it did not matter that the current H-1B had expired. Now it matters.
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| Thank you for joining us this quarter. If you have specific questions, the qualified attorneys at Badmus Law Firm are ready to assist you through the complexities of your specific immigration situation. Even if you are unsure if you need an immigration attorney or an employment attorney, give us a call and we will be able to confidently provide you with the direction you need.
Until next time, may the holidays bring you and your family great joy.
Martha James
Attorney at Law and Editor in Chief | |
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