Communicating with faculty & staff, the media and the community
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Transcript Communicating with faculty & staff, the media and the community
HR Liaisons Meeting
August 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 TriRail 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.trirail.com and clicking on “Programs”
Benefits Update
Benefits Update
Adoption 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_O
pen_%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 and
Obligations for Employers
Part 1: Nonimmigrant Visas
Fragomen, Del Rey, Bernsen & Loewy, LLP
Aaron M. Blumberg
Associate
Fragomen, Del Rey, Bernsen & Loewy, LLP
One Alhambra Plaza
Suite 600
Miami, Florida 33134
Telephone: (305) 774-5800
Fax: (305) 774-5800
E-Mail: [email protected]
Immigration Overview
3 Categories of People in the U.S.
- Citizens
- Immigrants
- Nonimmigrants
Nonimmigrants
Coming 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 Category: USCIS Provisions
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 (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
affected
There is no strike or lockout
H-1B workers will be paid the higher of the prevailing or
actual wage
Notice has been provided to all employees
Wages
Actual 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.
40
When Should I Initiate a Case?
THE EARLIER THE BETTER!
Recommended: Initiate Cases 6-8 months in advance
BUT, 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 Wages
Two 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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48
49
50
51
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
Institution
Degree where Highest
Earned
Degree
Earned
Jonny Boy
65873
Computer
Programmer
08/01/2007
N/A
12
$43,000
BS
2007
Florida
International
University
Computer
Programmer
01/06/2002
1/09/2009
12
$88,000
Masters
1992
University of
Miami
65874
Marilyn
Monto
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
01/19/2009
N/A
12
$48,200
BA
2008
Florida
Systems
International
Analyst
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 H1B 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:
[email protected]
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/Deadlines
Event
Staff Senate Survey
Deadline to Respond
Location
N/A
Date/Time
Tuesday, August 24
HR Customer Service
Survey Deadline to
Respond
N/A
Friday, August 27
PEP Forms Due
Division of Human
Resources
Monday, August 30
Benefits Open
Enrollment
N/A
Monday, September 27 to
Friday, October 22
Wrap Up
Questions or Comments?