Infosys is India’s second largest software exporter, and has about 30,000 workers in the U.S. (160,000 worldwide) with $6B in sales.

After years of investigation, it was found that Infosys “knowingly and unlawfully” brought Indian workers into the United States on B-1 business visitor visas( since 2008), to circumvent  the higher costs and delays of a longer-term employment-related visa, such as the H-1B visa that the workers should have had.  It was found that Infosys systematically submitted misleading information to US immigration authorities and consular officials to obtain the B-1 visas that do not permit employment, unfairly gaining a competitive edge and undercutting American workers qualified for the jobs

Press release states: “Infosys failed to maintain I-9 records for many of its foreign nationals in the United States in 2010 and 2011 as required by law, including a widespread failure to update and re-verify the employment authorization status of a large percentage of its foreign national employees…more than 80 percent of Infosys’s I-9 forms for 2010 and 2011 contained substantive violations.”

The largest fine of its kind, was paid out as follows: $5 million to Homeland Security Investigations, $5 million to the Department of State, and $24 million to the DOJ.

How can employers protect themselves?

The five federal agencies charged with workplace enforcement are not only going after businesses that are known to employ undocumented workers, but they are also making examples out of industry leaders across the country creating headline news. It goes without saying, that this is now a topic that should be on HR executives’ action list.  Turning a blind eye can be exceedingly costly and cause great damage to a company’s reputation.

For more on this Story:  CBS Reports   NY Times

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There have been reports for some months now that the USCIS California Service Center has enforced new interpretation concerning the way it views H-1B requirements for job location changes, when duties and all other employment terms remain the same.

Previously, according to a 2003 legacy INS memo, a simple change in job location did not require that a new petition be filed with USCIS.  The employer was required to analyze prevailing wage for the new location, file and obtain a new certified Labor Condition Application (LCA) with the Department of Labor prior to the employee moving to the new location, post the LCA at the new work site according to DOL regulations, make sure wage and hour obligations were met, but did not have to file an amended petition with USCIS.

Under the CSC’s new and controversial interpretation, changes in job location alone do require amended petitions. In fact, employers are reporting site audits and revocation of H-1B petitions when USCIS inspectors could not find the H-1B worker at the work site listed in the petition. At this point, no other USCIS service center has followed this radical reinterpretation of the law – just the CSC.

Long-standing guidance still indicates that no amended petition should be required when only job location changes. However, to avoid adverse consequences – at least, until the CSC revisits its controversial new interpretation – employers should proceed with caution and work with a competent immigration professional whenever an H-1B worker’s job location changes, in order to determine whether any amended filings are required. Employers need to be careful to reveal all possible jobsite locations for each H-1B worker at the front end of case processing.

USCIS headquarters has the H-1B amendment issue under consideration and has indicated that they may issue additional guidance regarding this matter. In the meantime, please be advised that for cases under the jurisdiction of the CA Service Center for H-1B workers whose jobsite locations have changed, an amended petition prior to any geographic relocation is now required.

Should you wish to become a client of our office, please contact one of our immigration professionals at info@immigrationcompliancegroup.com, or call 562 612.3996.

With H-1B filing season upon us as of April 2, 2012, we take this opportunity to remind you that although there has been slow but steady economic recovery over the last few years, the H-1B cap is expected to be reached much faster this year.  This, coupled with a recent NFAP Policy Report Analysis released this month citing case denial rates of 17% with a staggering RFE (Request for Evidence) rate of 36%, sends a clear, “culture of no” message that USCIS is making it more difficult for skilled foreign nationals to work in the USA with increasing denial rates for both the H-1B and L-1 visa programs.  All the more reason to be relying on experienced business immigration council for your case filings.

The NFAP report states, “Employers report the time lost due to the increase in denials and Requests for Evidence are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States beyond the reach of USCIS adjudicators and U.S. consular officers.”

Small to medium-size companies and IT consultants and staffing agencies often bear the burden of these overbearing RFE’s.  Working with smart immigration practitioners and preparing your case strategy in advance to address both your strengths and weaknesses, will pay off greatly.  Here are some tips that we highly recommend be incorporated in your filings:

1)     Incorporate a detailed brochure and description of the employer’s products or services and why you require a professional with a bachelor’s degree to perform the offered position.  Include promotional materials, press releases or news articles to illustrate the nature of the business, new trends and growth factors in your business that substantiate the offered position.

2)     Include a copy of your corporate tax return or financial statements to evidence profit and business stablity

3)     Explain in detail why the position cannot be performed by an employee without a bachelor’s degree; i.e. is it standard in your industry?  Provide detail (such as examples of work to be done) concerning the complexity of the position

4)     Provide a real, detailed job description with the percentage of time spent on the duties of the position, the qualifications and special skills required to perform the job.  Further explain any discretionary judgment that the employee will have in their job and other such areas of responsibility that are demanding or highly advanced

5)     Provide evidence that you have a current and past practice of hiring bachelor’s degree employees for the subject position

6)     IT and staffing agencies must be prepared to evidence the “employer-employee relationship” in H-1B offsite placement work situations by clearly evidencing the employer’s ability to “hire, pay, fire, supervise, or otherwise control the work of the employee. (based upon the January 8, 2010 Neufeld Memorandum).

If you’d like to set up a time to discuss your case with our office or to engage our services, please feel free to contact us.

An employer may make “short-term placement(s) or assignments” to new places of employment in areas of intended employment not listed on the original LCA w/o filing a new LCA. Short term placements may occur only under certain conditions for strictly limited periods.

1)      The employer has satisfied all obligations under the existing LCA covering the H-1B worker

2)      There is no strike or lockout at the new worksite in the occupational classification of the H-1B worker; and

3)      The employer continues to pay the required wage based on the original LCA and also pays all lodging, travel, meals and incidental or misc expenses associated with the worker’s stay at the new location, for both workdays and non-workdays.

Short-term placement at any worksite or combination of worksites in a new area may not exceed 30 workdays in a one-year period, or under certain circumstances, 60 workdays.  Workdays counted toward the limit may be nonconsecutive and may be at different specific worksites within the area of employment.  Weekend, holiday or other non-workdays do not count.  Thus, the 30-workday limit would typically be about 6 weeks.

It is recommended that you obtain the advice of an experienced immigration attorney who understands this issue. If you are not a client of our office and would like to be, please contact me directly.

Leslie Davis, Managing Director
Immigration Solutions
D 562 612.3996
Our News: http://www.immigrationsolution.net/newsletter-April-2010.php

The filing period for new H-1B visas under the cap opens soon, on April 1st.    So, now is the time for you to organize and plan to get the most from the new filing period.  You might wish to access a recent audio conference we had on the topic where we also address the tougher standards and document requirements and the new regulations around the employer-employee relationship.  Below is a brief review of what the employer needs to do to prepare:

1)  Plan and identify the workers subject to the cap:  The applicants that fall into this category are applicants for new H-1B visas that will most likely be either: (a) new hires or current employees with non-immigrant status that will NOT permit them to work continuously through October 1, 2010.  These would be F-1 students on OPT, J-1 exchange visitors and H-3 trainees; (b) candidates who are outside the USA and have not been counted against the cap; (c) Employees you wish to maintain on a permanent basis who might require a change of status as a necessary means to your long-term business strategy of sponsoring them for their green-cards (L-1Bs, L-1A managers who do not qualify for EB-1C multinational manager green-cards and TNs).

2)  Delays due to LCA Issues:  Utilizing the new iCERT system that still has many quirks, can delay filings up to 7-14 days, with erroneous and improper denials based upon their inability to verify the employer’s EIN#.  Given that LCA’s can be processed up to 6 months in advance for a cap case with a start date of 10/1/2010, with proper planning – these delays can be avoided.

On October 1st of every year, 85,000 new H-1B visas become available, with 20,000 of them set aside for advanced degree graduates of colleges and universities in the USA.  The “cap” quota only applies to filings for new employment.  H-1B extensions and transfers to a new US employer are not subject to the annual cap.

Employees of institutions of higher education and certain non-profit or government research organizations are exempt from the cap.  Please remember to discuss this category with your immigration attorney because it can be tricky.

Please do not hesitate to contact Immigration Solutions with any questions or concerns you might have.  We are available to handle your casework or, if you process your own H-1B cases, to consult with you and review your casework for approvable USCIS filing.

Senators Bernard Sanders (I-VT) and Charles Grassley (R-IA) announced that they will introduce a bill to restrict the ability of employers to hire non-immigrant workers if the employer conducts “mass layoffs” under the Worker Adjustment and Retraining Notification (WARN) Act. The new bill, titled the Employ America Act (EAA), will be introduced in the U.S. Senate soon.

EAA would require employers filing temporary worker petitions to attest that they have not had a “mass layoff” in the 12 months immediately preceding the foreign worker’s proposed hire date and that they do not intend to have a mass layoff in the future. In addition, if an employer does conduct a mass layoff, all existing visas approved in the 12 months before the employer issued a “WARN Notice” would expire 60 days after the notice. Affected foreign nationals would be required to leave the United States within the 60-day period.  We link to the Senate Press Release

The Warn Act defines a massive lay off as:  A reduction in force that will result in employment loss at a single employment site during any 30-day period of (1) at least 500 employees, not including part-time employees; or (2) 50 to 499 employees, excluding part-time employees, if the laid-off employees constitute at least 33% of the employees at the site, also not including part-time employees. For purposes of WARN, an employment loss is (1) an employment termination, other than a discharge for cause, a voluntary departure or retirement; (2) a layoff that exceeds six months; or (3) a reduction in an employee’s work hours of more than 50% in each month of any six-month period. However, certain transfers to other employment sites are not considered to be employment losses.  An employer is not required to issue a WARN Notice if a mass layoff is the result of the completion of a particular project or undertaking, if the workers were hired with the understanding that their employment would be of a temporary duration.

The good news is – with comprehensive immigration reform (CIR) on hold until next year, it is doubtful that this will pass although it still could be introduced in another piece or legislation.