These days it’s not enough to simply properly complete the form I-9 for all your employees, but you also need to focus on the employment of your temporary foreign workers. Recently, SVK Systems, Inc., an Alabama company, agreed to pay nearly $258,000 in back wages to 21 H-1B temporary foreign workers hired for IT around the United States following an investigation by the Department of Labor’s Wage and Hour Division (“Department”). The Department found that SVK Systems, Inc. failed to pay its workers when they were required to report for training. Additionally, some instances were found in which SVK Systems not pay the required prevailing wage rate for hours worked. Some of you may recall the settlement with Prince George’s County Public Schools in Maryland in 2011, where the Department obtained an agreement with the school system to pay approximately $4.2 million in back wages due 1,044 workers to resolve violations of the H-1B temporary foreign worker program. The central issue was that the school system was unlawfully reducing the wages of H-1B workers by requiring them to pay fees that the school system was required to pay for purposes of the H-1B petition.
Compliance with U.S. immigration laws is a complex area and doesn’t stop upon completion of the form I-9. It also includes compliance with the requirements of the visa category in which you sponsor a foreign national. A company can be audited by federal investigators regarding their treatment of H-1B temporary foreign workers. During an investigation, the Department will look to see if you are complying with the terms of the Labor Condition Application (LCA), which means they will look at whether you are paying them what you agreed to pay and that they are working in the position and location listed on their petition. Also, they can review the deductions you are making from their paycheck to determine if those are lawful. Such investigations can be costly in terms of fines as well as legal fees and can lead to unwanted media attention.
My point here is that if you employ H-1B temporary foreign workers make sure that you and your employee are familiar with the contents of the petition and that their employment meets the terms of the petition, including position, location and salary. Also, regarding the form I-9, make sure that such employees are in your tickler system to alert you to the end of their authorized work status. Finally, before making any changes to the terms of their employment, such as moving them to another work-site, docking their pay, terminating them, etc. talk to your immigration counsel and if you don’t have immigration counsel, call us and we may be able to help.