Due North: The TN Visa May Be Best When Hiring a Canadian Professional
January 27th, 2012 § Leave a Comment
Are you thinking about hiring a professional from Canada? If you do, you don’t need to worry about getting H visas in on time!
There is a simple way called a TN Visa (trade national) under NAFTA that allows certain professionals (such as physicians, chemists, dentists, architects, and teachers to name just a few) from Canada to enter the U.S. to work.
In many situations, they are preferable to H visas because
- They are renewable continuously.
- There is no limit to the number of visas available.
- There is no time limit on when you can apply for one.
Also, a citizen of Canada can apply for the TN visa while attempting to enter the U.S. directly at the port of entry. They do not need to apply at a Consulate or the USCIS, as they do for H visas.
TN visa holders can be admitted for up to three years if they have a passport valid for the entire period and the employment will last at least that long. If an employer wants to hire a Canadian, the business should write a strong employment letter to support the Canadian’s visa application at the border.
It should include details such as place of employment, length of job, wage and details of job duties. But remember, if the employer states the job will last 24 months, then the visa, when granted, will be only for 24 months and not three years.
Also, a TN Visa holder can always renew the TN visa for the same or other employer beyond the initial amount of time, with no limitation on number of renewals. Again, this is unlike an H visa, which is only available for a maximum of six years for the foreigner(two three-year periods).
If you are considering hiring a Canadian, give us a call to discuss your options. There are some professions and job titles that do not qualify for a TN visa, so it is best to check with counsel before proceeding. We would be happy to discuss this with you! It’s what we do.
NH Public Radio Explores the Plight of H-1B Visa Workers
November 15th, 2011 § Leave a Comment
New Hampshire Public Radio aired an interesting report this morning on the need for immigrant workers in the state on H-1B visas. (Also scheduled for this afternoon at 5 p.m., the story includes input from our own John Wilson, Esq.)
The report, from NHPR reporter Sam Evans-Brown, explores the need for immigrants to provide skilled work in a NH economy that badly needs their services. He interviews a human resources director for one Nashua company that has more than 70 people on H-1B. Hear Evans-Brown’s report here.
About half of the company is filled by skilled foreign workers who come on temporary H-1B visas, Evans-Brown reports, even though the company pays recruiters to look for American candidates. It’s worth a listen for anyone who is connected with the H-1B visa world. If you have questions about H-1B visas, feel free to contact GoffWilson. Immigration law is what we do.
H-1B Regulations: What To Avoid
November 3rd, 2011 § Leave a Comment
H1-B requirements can be a common pitfall for many businesses with employees on specialty occupation visas. Every company should assess its H1-B practices and processes before the Department of Labor (DOL) comes calling, as evidenced by a healthcare company in Missouri ordered to pay more than $50,000 in back wages due to H1-B troubles.
The Department of Labor (DOL) investigated the Greater Missouri Medical Pro-Care Providers, Inc. (GMMPCP) after an employee submitted a claim that challenged their practices. As the investigation progressed, the DOL uncovered more and more violations, and realized that the issues went far beyond those in the initial complaint. These violations would eventually cost GMMPCP more than $50,000 in back wages and unauthorized withholdings.
The DOL alleged that GMMPCP failed to pay the required wages to its H-1B employees during nonproductive periods of employment, illegally withheld final paychecks from employees, illegally deducted fees pertaining to H-1B extensions from the wages of its employees, and illegally collected or attempted to collect penalties from former employees for early termination of employment prior to an agreed-upon date.
Last month the DOL issued an order requiring the (GMMPCP) to pay $338,042.19 in back wages to 40 H-1B employees, $8,160 in repayment for H-1B expenses that were improperly deducted from H-1B employees, and $8,284.23 for unauthorized withholdings from final paychecks from H-1B employees.
This case highlights three important components of the wage requirements for H-1B workers that employers must keep in mind:
1. Benching
Employers are required to pay an H-1B employee wages during nonproductive time as well as productive time once the employee becomes eligible for work. In this case, the judge found that GMMPCP was not paying the employees a salary after they arrived in the United States and before they passed their state licensing exam.
2. Wage Deductions
Employers are only allowed to make authorized deductions from the wages of H-1B employees. Authorized deductions include (1) deductions authorized by law (such as income tax and FICA taxes); (2) reasonable and customary deductions (e.g. health insurance, retirement) so long as the employee was notified prior to employment beginning and these deductions were also made against US workers; and (3) deductions that are made in accordance with a voluntary, written authorization from the employee, is for a matter principally for the benefit of the employee, is not a recoupment of the employer’s business expenses, does not exceed the fair market value, and is not an amount that exceeds the limits set for garnishment of wages under the Consumer Credit Protection Act.
3. Penalties
Employers cannot require any H-1B employee to pay a penalty for ceasing employment. An employer may require an employee to sign a liquidated damages clause as long as the clause is valid under state law.
If you employ H-1B professionals in your business, be sure you are following the H-1B regulations regarding wages. If you have any doubts or questions, call us! This is what we do, and we are here to help.
H-1B Visa Program: Violations and Consequences
September 14th, 2011 § Leave a Comment
Imagine this scenario: You hired some workers with H visa status, but you didn’t check with your immigration attorney before you changed their wages, paid them more than other employees in the same positions, or failed to pay them because you were short on work. And somewhere along the line, one of these employees or a US worker complained. Now you are the subject of a Department of Labor investigation with possible fines and penalties to be paid.
This happened to a public school district in Maryland. To read the full article, please click here. Not only did the district have to pay $100,000 in civil penalties, they had to pay over $4 million in back wages. In addition, they are now barred from using the H visa program for two years.
There are other traps for the unwary in the H visa program, such as failure to notify the immigration service promptly when an H employee leaves your company. Failure can result in liability for wages for the entire remaining period of H status. This happened to a company in California this year.
The current administration has made it clear through statements, policy and actions that they intend to go after the employers who are not following the immigration rules of the road. If you have H-1B employees and you are considering any changes in their employment, call us and let’s discuss what steps you must take to avoid any investigations, penalties, or worse down the road.
H-1B Visa: Keys You Need To Know
August 12th, 2011 § Leave a Comment
If you’re hiring an employee who will need H-1B status to accept employment there are several things you need to consider to make the process easier on your current staff and to save yourself a few headaches.
Current Immigration Status
First, ascertain the prospective hire’s current immigration status. Is the potential employee a student? In OPT status or H-4? Does s/he have any prior stays in H or L visa status? You may find it helpful to have us review the employee’s entire immigration history.
Education Requirements
Second, you need to know if the job offered matches the education of the applicant. You’ll need to review the applicant’s education or evaluate their educational credentials. We can arrange to have the educational evaluation done at minimal cost. The job must be one requiring “specialized knowledge” that is associated with education at least at the bachelor’s degree level.
Salary Standards
You then want to be sure that the salary amount offered meets immigration standards of a “prevailing wage” and is similar to what others in your company are being paid for this type of job.
Also, consider the country of origin for the applicant. The employee may want to become a permanent resident at some point and different countries are treated differently under visa availability.
Dependents?
Lastly, ask the applicant if applications also need to be filed for any dependents. When the principal foreigner is in H status, immigration regulations allow their family members to be here in H-4 status. This is done at the same time that the principal H-1 application is filed. We routinely complete all of these steps as quickly as possible to help you make an informed decision regarding hiring.
Once you have these basic questions addressed, you can return to your important work of hiring the employee and getting him/her started at your company. Save yourself some time and let us worry about the H visa application. Please visit our website or contact us if you have any questions.
What to Expect When an H-1B Employee Transfers From One Company to Another
August 4th, 2011 § Leave a Comment
In the world of immigration law, the ability of an H-1B employee to change jobs is called portability and there are a variety of reasons H visa holders want to port occasionally.
Fortunately, portability presents some advantages to U.S. employers. For example, the H visa holder is not subject to the H cap when the new employer files their application with USCIS.
This means the employer can file anytime and does not have to worry whether the application will or will not be accepted by USCIS under the H quota system (which has a 65,000-per-year cap). Another important feature for the U.S. employer is that an employee can start working right away once the application has been filed.
This is obviously beneficial to the employer who always wants the new hire on board ASAP. Also, the employer is able to hire an employee who may have considerable and beneficial experience for their company. This is a win-win for both employer and employee.
Lastly, the employee benefits from the port because it may allow him or her to upgrade to a better position which, in turn, results in a new employment classification of EB2 instead of EB3 for green card status. This means a happy new hire!
In sum, transferring of employees in H status is advantageous for both employer and employee. For more smart ideas on hiring and retaining foreign professionals, or if you have questions regarding any issues related to immigration law, contact GoffWilson today or leave us a comment below.
H-1B Cap Reached for FY 2011!
January 28th, 2011 § Leave a Comment
According to the U.S. Citizenship and Immigration Services (USCIS), as of Thursday, February 27, 2011, the H-1B Visa Cap for FY 2011 has been reached. For the full press release, click here.
There is an annual 65,000 limitation on H-1B visas. (this is called “the cap”); Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20, 000 petitions filed for an individual who has obtained a US Master’s degree or higher.
In addition, there are reserved 6,800 H visas from the cap for Us-Chile and US-Singapore Free Trade Agreements. Any unused numbers here are made available for H-1B use for the next year.
Final Update by GoffWilson: January 27, 2011
©2011, GoffWilson, P.A. All Rights Reserved.
For more information, or answers to specific questions regarding the H-1B Visa, please contact GoffWilson.
Violation of H-1B Provisions Leads to 700K+ in Fines for Computer Consulting Company
January 10th, 2011 § Leave a Comment
According to a press release issued by the U.S. Department of Labor (DOL), Peri Software Solutions, Inc of Newark, NJ, and it’s owner Saravanan Periasam will pay $638,000 in back wages and interest to 67 workers because a of H-1B provision violation of the Immigration and Nationality Act.
In addition, Peri Software Solutions Inc must also pay $126,778 in civil money penalties and the company is debarred for one year from participating in the H-1B program.
The H-1B is a non-immigrant visa, that allow U.S. employers to temporarily employ foreign workers in specialty occupations such as computer programming, architecture, engineering, mathematics, and physical sciences. The DOL is responsible for establishing specific guidelines for the H-1B Visa to ensure that foreign workers do not displace U.S. workers.
Nancy J. Leppink, Deputy Administrator of the DOJ Wage and Hour Division stated:
“Peri Software not only took advantage of these workers by not properly compensating them, it also violated the part of the law that provides the greatest protection to the American workforce. “When companies participating in the H-1B program do not post filed labor condition applications, they clearly undercut American workers who may be qualified for available employment but aren’t aware of it.”
To read the full press release, visit the DOJ website. Visit GoffWilson.com for more information regarding the H-1B Visa.
April 1, 2010 is the H-1B filing date!
March 30th, 2010 § Leave a Comment
It's that time of the year again. As the clock ticks down, the filing date for the H-1B Visa - April 1, 2010 - is approaching quickly.
No, it’s not an April Fool’s Day joke. The 2010 H-1B Visa filing date is approaching quickly: April 1, 2010. With only 65,000 available, the H-1B Visa is the most sought-after visa, and sponsoring employers should act immediately.
The H-1B Visa:
- A non-immigrant visa that allow U.S. employers to temporarily employ foreign workers in “specialty occupations”.
- The “specialty occupation” requires theoretical and practical application of highly specialized knowledge and attainment of at least a bachelor’s degree (or the foreign equivalent) and state licensure (if required to practice).
- For an employer’s petition (sponsorship) of an H-1B nonimmigrant to be approved, the specialty worker’s credentials must match the needs of the position to be filled within the specialty occupation.
- According to immigration laws, the earliest possible date that an employer may file an H-1B petition for the next fiscal year’s cap is April 1, for an October 1 employment start date.
Read more about the H-1B Visa.
Obtaining an H-1B Visa has become increasingly difficult, and planning a well-timed filing is essential. Employers in quest of petitioning foreign workers for H-1Bs should seek professional assistance from an experienced law firm.
GoffWilson has been assisting immigrants and employers for 30 years. We welcome your inquiries pertaining to H-1B Visas or any other immigration matter. Click here to contact GoffWilson, or call 603.228.1277.
H1B Teleconference – Thurs. 2.18.10 @ 2 p.m.
February 10th, 2010 § Leave a Comment
The H-1(B) Visa. Only 65,000 will be released October 1st, 2010. The time to file, April 1st, 2010 is approaching quickly.
The H1B Teleconference, presented by Attorney John Wilson of GoffWilson, P.A., will address the many aspects of filing the H-1(B) visa including challenges, and tips for successful visa approval. Following the discussion, Attorney Wilson will take questions from participants. Register online.
Topics Include:
- 2010 H1-(B) Visa Cap
- OPT to H1-(B), gap coverage, and STEM
- New problems & issues for certain industries (prevailing wage changes, licensing problems, limitations on contract employees, who pays the fees, stricter scrutiny of documents, etc)
- Frequent Site visits by the Department of Homeland Security and Immigration & Customs Enforcement
- H1(B) extensions
Date & Time:
Thursday, February 18th, 2010
2:00 p.m. – 2:30 p.m. Presentation by Attorney Wilson
2:30 p.m. – 2:45 p.m. Participant Q&A
Registration:
Please register online by Wednesday, February 17th. You will receive a call-in number and access code upon registration. Registration is free to the first 100 participants.
