By: Pia Marie Dyquiangco, ESQ
USCIS made an announcement this week that the H-1B visa category will once again open up on April 1, 2011. Applicants may begin to submit their H-1B visa applications for the fiscal year of 2012. Remember that if your H-1B is approved the start date of the visa is on October 1, 2011. Clients are often reminded that the H-1B visa belongs to the Petitioning employer even if it benefits the employee and fees associated to this visa must be paid by the employer. Because H-1Bs are driven by the employer, the issue of employer involvement is a key concern. Employers need to participate in the process and have full and complete knowledge of what they are having their immigration attorneys file on behalf of their employees. No exceptions.
Our firm represents various companies in their obtainment of an employment based visa (both immigrant and non immigrant visas) for their employees. And these employers can tell you that they are involved in the immigration case from beginning to end. We are so proactive in getting employers involved because it is important to make sure that the employer is in compliance of immigration regulations. For example, in an H-1B visa application, the employer files a Labor Condition Application with the Department of Labor attesting that they will pay the required wage for this position in the geographic region where the job is located. If the employer cannot actually pay the wage or demonstrate that they can afford such a wage, it may result in the H-1B visa being denied. I cannot tell you how many times employers have told me that they were never told by the attorney who started their case about being able to have the ability to pay the prevailing wage and such was the very reason why the employment case was denied. Let's face it, ability to pay is an issue in all employment cases because of this recession. This is why it is important for the employer to be involved in the immigration process.
Another example of why employers need to be involved in employment based immigration cases is because by signing which ever visa application, the employer is attesting that this is a bona fide job offer and that their company has a need for such job position. With that subject of the job being bona fide, USCIS has been vigilantly confirming its bona fide status by sending FDNS inspectors to the employer's work site.
In recent years, USCIS created the Office of the Fraud Detection and National Security (FDNS). FDNS officers resolve background check information and other concerns that surface during the processing of immigration benefit applications and petitions. Resolution often requires communication with law enforcement or intelligence agencies to make sure that the information is relevant to the applicant or petitioner at hand and, if so, whether the information would have an impact on eligibility for the benefit.
In recent years, FDNS paid unannounced visits to work sites to verify that the person who will receive or receive the benefit of such a visa does work in the proffered job. If the employer does not have any knowledge about the application that was filed or a file copy ready to show FDNS, such may endanger the employee of losing their already approved visa or having the visa application they applied for be denied. Visits from FDNS do not only happen for H-1B employers, it happens to various employers who have applied for a employment type non immigrant visas on behalf of their employee. No exceptions, employers must be involved.
Because it is H-1B season again, employers must remember to be involved if you are petitioning your employee because such involvement will help should you be questioned about the petition you filed or should you be held liable for something you signed. If employers do not have the time, it is wise to assign someone in Human Resources to be the point of contact for your immigration lawyer. Employers should be wary if they never speak to the immigration counsel throughout the process of their employee's visa. All employment based visa are employer driven, and as the petitioner you control the visa application. You don't want to find yourself signing off on a visa application for your employee without knowing fully the responsibilities you are taking on as the petitioner.
It is our firm's policy that all employment cases begin with a lengthy discussion of responsibilities, expectations, and liabilities with the petitioning employer. Each decision made on the case especially wages, job positions and duties, we consult the employer about. Additionally, we understand that time is precious for employers that we work with so we simplify the process for them by creating a time line of when certain things will be done, and we believe that frequent communication with employers is key to a successful case.
I know there are employers who are averse to getting too involved because they do not have the time nor do they want to do the work of putting together their company documents or making decisions on what job positions and duties. My answer to that is why not appoint your assistant or someone in human resources to be the liaison between you and your immigration lawyer. I was once told by a client that in other firms, the case is just done by the attorney and their team of paralegals without active participation of the employer. And all the employer has to do is sign the forms. I in turn asked that client, how does that lawyer know your business so well and how are they able to make the decisions that you only have the authority to make? The employer was perplexed and then I asked them if they knew the information that was filed with USCIS. There was no answer. Employers do not put yourself in a situation where you cannot answer questions posed by an inspector from FDNS or be in a situation where you signed a form attesting to pay a wag you cannot afford.
Employer responsibility starts with hiring an immigration attorney who will fully inform you about your responsibilities and liabilities when filing a petition for your employee. Employer responsibility continues by being involved and following up with your immigration attorney details about the case being filed. Finally, employer responsibility is something that continues even after the visa is approved. The lawyers of Wilner & O'Reilly have the experience and knowledge to work with employers in various industries to ensure their employer responsibility is fulfilled. Should you need assistance in any of your employment based matters, please do not hesitate to contact us at 800-352-7034 or visit us on the web at www.wilneroreilly.com.