New Year’s Reminders for Employers (Part 1 of 2)
3 min read
H1B Amendments: Employers should review several immigration-related matters and documents now as we approach the end of another year to help ensure smooth business operations in 2023. Internal audits are always recommended for identifying and resolving existing compliance issues.
LCAs and H1B Amendments
H1B public access files (PAFs), including labor condition applications (LCAs), should be audited regularly by employers who employ H1B workers. Companies should double-check that they have an appropriate, current, and unexpired LCA for each H1B worker at the start of each new year. The H1B worker’s current work location and position must be reflected in this LCA, which should be included in the PAF.
If there has been a material change in the terms and conditions of employment or if there have been changes that affect eligibility for H1B status, employers of H1B workers are required to file amended H1B petitions by long-standing regulations. This is now interpreted by the USCIS to mean that a new LCA is required due to a change in the beneficiary’s employment location. The employer must submit an amended H1B petition. The employee’s relocation to a different metropolitan statistical area (MSA) or a location. That is not within a reasonable commuting distance are examples of such material geographic shifts.
Promotions and other changes can also necessitate amending the H1B petition. This article does not cover the potential need to modify an H1B petition, which can be complicated. A competent attorney should be consulted for specific inquiries regarding such matters.
Terminated H1B Employees and No-Shows
When a sponsored H1B employee fails to report for work, quits, or is terminated from employment. During the validity period of the H1B petition filed by that employer, employers are required to notify the USCIS. Further, there are additional requirements that must be carefully and promptly followed for H1B employers to avoid potential financial liability.
To ensure that they are in compliance with these procedures and that evidence of compliance for previous H1B workers has been retained. Employers should take the time to review their human resources files and PAFs. To ensure that these requirements are met beyond 2023, employers should review their policies and procedures.
Form I-9 Verifications | H1B Amendments
Almost all employers in the US must complete form I-9 employment eligibility verification for each employee hired. The form is only a few pages long and can appear straightforward. Employers frequently overlook potential issues that can arise during the I-9 process due to this appearance of simplicity. Some employers, particularly relatively new ones, are unaware that employees are required to complete the I-9. Others are aware of the deadlines, acceptable documents, form retention requirements, and other details, but they may not be aware of them. A problem common in the IT consulting industry is the practice of completing the I-9 remotely. With the new employee and company representative in two different geographic locations. This would most likely violate I-9 regulations.
[DHS and DOL Announce the Availability of Additional H-2B Visas for the Fiscal Year 2023]
Internal Audits are Essential
Since people drive the I-9 process, mistakes will always happen. All employers should conduct internal audits of their systems for handling I-9s at the beginning of each year. Even though the best policy is proper training and careful prevention. Employers should make sure that uniform policies are in place for processing and storing these forms and related documents during these audits. As well as that they have a completed I-9 for each current employee and that I-9s are being retained for terminated employees.
Corporate Mergers and Acquisitions
Additionally, the beginning of the new year is a good time to determine. Whether the company has inherited any additional immigration responsibilities. As a result of a corporate change, such as a merger or acquisition.
Conclusion
As we approach the beginning of another year, it is a great opportunity to take care of potential issues and lay out legitimate systems. By checking important documents like I-9s and LCAs and establishing safeguards. To help ensure compliance throughout the year, employers can avoid potential issues.
