Copyright © 2004 Fragomen, Del Rey, Bernsen & Loewy, P.C. 0 Comprehensive Immigration Reform.... or...
-
Upload
eustacia-washington -
Category
Documents
-
view
221 -
download
0
Transcript of Copyright © 2004 Fragomen, Del Rey, Bernsen & Loewy, P.C. 0 Comprehensive Immigration Reform.... or...
Copyright © 2004 Fragomen, Del Rey, Bernsen & Loewy, P.C. 1
Comprehensive Immigration Reform.... or Just a Little Bit?
West Michigan APA – March, 2014
Copyright © 2011 Fragomen, Del Rey, Bernsen & Loewy, LLP 2
Presenter
Scott F. CooperPartner – Fragomen, Del Rey, Bernsen & Loewy
50 W. Big Beaver Road, Suite 200Troy, MI 48084
Tel. 248-282-5703Fax 248-250-5541
Copyright © 2011 Fragomen, Del Rey, Bernsen & Loewy, LLP 3
Topics
- An update on what Congress has been doing about reforming the immigration laws
- Potential consequences for employers and payroll professionals
- Other immigration happenings of importance to you
Copyright © 2004 Fragomen, Del Rey, Bernsen & Loewy, P.C. 4
What is Congress Up To?
Copyright © 2011 Fragomen, Del Rey, Bernsen & Loewy, LLP 5
A Variety of Proposals
•Long standing effort to toughen wage requirements on H-1B workers and to place wage requirements on the L-1 category
•Comprehensive immigration reform measure (S. 744) passed the full Senate
•House considering piecemeal approach, some of which would impact H-1B workers
Copyright © 2011 Fragomen, Del Rey, Bernsen & Loewy, LLP 6
S.744 Border Security, Economic Opportunity, and Immigration Modernization Act
•Payroll-related provisions
- H-1B 4-Tiered wage system would be reduced to three wage levels
- Would increase H-1B worker wages at each level
- Level 1 (entry level worker in the occupation) wage would be the mean of the bottom two-thirds of wages OR at least 80% of Level 2 wage
Copyright © 2011 Fragomen, Del Rey, Bernsen & Loewy, LLP 7
S.744 Border Security, Economic Opportunity, and Immigration Modernization Act
•Payroll-related provisions
- Level 2 (entry degree with up to 2 years of experience) would be the mean of all wages surveyed by USDOL for the occupation
- Under current system, the mean is equivalent to Level 3 or greater
- Level 3 would be the mean of the top two-thirds of wages surveyed
- H-1B “dependent” employers would be required to pay at least Level 2 wages
Copyright © 2011 Fragomen, Del Rey, Bernsen & Loewy, LLP 8
S.744 Border Security, Economic Opportunity, and Immigration Modernization Act•H-1B “dependent” employers face greater requirements and restrictions
•H-1B “dependent” = 15% or more of full-time equivalent US workforce employed in USDOL O*NET Zone 4 and Zone 5 occupations
•No exemptions from dependency count for masters degree holders or wages of $60,000+
•Exempts “intending immigrants” from the count
Copyright © 2011 Fragomen, Del Rey, Bernsen & Loewy, LLP 9
S.744 Border Security, Economic Opportunity, and Immigration Modernization Act•Would have to initiate green card process to remove them from the count
•Combined H-1B and L-1 worker count also comes into play in determining dependency
•Non-displacement provisions 90 days before and after employee is on H-1B payroll
•H-1B dependent employers prohibited from outsourcing, leasing or otherwise contracting for the services or placement of H-1B worker
Copyright © 2011 Fragomen, Del Rey, Bernsen & Loewy, LLP 10
S.744 Border Security, Economic Opportunity, and Immigration Modernization Act
•H-4 spouses would be eligible to work – There goes the tax hypo!
•60 day grace period for terminated H-1B to find a new employer
•Additional filing fee of $2,500 for all H-1B workers (employers with 25 or fewer workers pay $1,250)
•Total H-1B filing fees could be $5,750
Copyright © 2011 Fragomen, Del Rey, Bernsen & Loewy, LLP 11
S.744 Border Security, Economic Opportunity, and Immigration Modernization Act
•Heavy users of H-1B and L-1 workers (more than 50% of US workforce) face additional fees and limits on total numbers of such workers
•L-1 program investigation program•Annual L-1 program compliance audits•Fine of up to $10,000 and minimum 2 year debarment for L-1 program violations
New Worker Verification System
►Similar to E-Verify
►Employers with more than 5,000 employees: Have two years to comply after the implementing regulations are issued
►Employers with more than 500 employees: Have no more than three years to comply after the implementing regulations issued
►Other employers: Must comply within four years of the implementing regulations being issued
12
Skills Visa Act “Wage Accuracy” Problem
►Due to decrease in number of wage levels for prevailing wage purposes for immigration purposes
►Arises at all professional levels, not only entnry►According to US Chamber data, about 55% of the
time H-1B workers would have to have higher wages than US workers where a degree and 2 years of experience is required for the position
►Would apply at top wage levels 43% of the time►For campus recruits in entry-level positions, would
require higher wages for H-1B’s than US workers 90% of the time
13
State of Play and Next Steps
►S.744 introduced April 16
►“Markup” of S. 744 ended May 21 and bill reported favorably for floor consideration
►Floor debate started on June 6
►S. 744 passed by Senate on June 27 by 68-32 vote
►“Markup” of House SKILLS Visa Act, H.R. 2131, on June 27; Approved by Committee but no floor debate scheduled yet – could occur as early as September
►To be determined – Conference of House bill(s) with S. 744
14
Other Updates of Interest
►How are you doing with the new I-9, M-274 and I-94 rules?
►Office of Special Counsel updated advice regarding when to ask questions regarding immigration status especially if clarifying potential applicability of export control laws
►When the government shuts down, E-Verify shuts down
►L-1 site visits begin
15
New Version of Form I-9
•New version required May 8, 2013•Prior forms dated 02/02/2009 and 08/07/2009 may be used until 05/07/2013- Employers should start to use new version immediately
- Must use 03/08/2013 version starting 05/08/2013
16
Most Notable Changes to the Form• New optional fields in Section 1 for employee’s email address and
phone number- If email/phone number not entered then must enter “N/A”
• New requirement for certain employees to record foreign passport number and country of issuance in Section 1
- Record if I-94 issued by CBP at time of entry
- Enter “N/A” of I-94 issued by USCIS
• More spaces in section 2 for recording List A documents• Specific instructions on recording document information for foreign
students and exchange program participants in section 2• Specific instructions for completing section 2 when an employee
present receipts and for updating section 2 of the I-9 when the employee later receives and presents the actual document
17
Most Notable Changes to the Form
•New form needed in case of name change- Must record new name in Section 3 during rehire or
reverification process
- Recommended to record name change in Section 3
- Name change due to change in identity requires new I-9
•Unclear how variation in format or omissions related to new fields or instructions will be treated by ICE in the event of an I-9 audit- Enter “N/A”
18
19
List of Acceptable Documents
20
Form I-9Section 1
21
Form I-9Section 2
22
Form I-9Section 3
• Only Re-verify Employment Authorization• Must re-verify on or before date employee’s current
authorization expires• Section 3 can be used in certain circumstances instead
of completing an all new form when former employees are rehired
Key Changes to M-274
• Expanded definition of “hire”
- Date the employment in exchange for wages or remuneration starts
• Instructions for multiple preparers
- Person reviewing documents must sign Section 2• More precise instructions on hyphenated names• Clearer emphasis on physical presence
- Employee must be physically present at time documents are presented and reviewed by ER
• New guidance on recording name changes• New guidance on retention of supporting documents• Relaxed rules on laminated Social Security cards• More document samples
23
Automation of I-94
•CBP published aeffective 04/26/2013 eliminating issuance of the I-94 at ports of entry
•Foreign nationals entering by air or sea will not be issued paper I-94
•Does not apply to persons entering by land•Paper I-94s will still be issued in some circumstances (parolees, asylees, refugees)
•USCIS, DMV, SSA still require paper I-94s for issuance of benefits
•Paper I-94 can be printed from www.cbp.gov/I94
24
Office of Special Counsel Update Advice
►OSC is advising that an employer should not be asking for a job applicant’s specific immigration status before making a job offer
►Sometimes it is necessary to obtain information to determine export control compliance
►Make such queries separately from the I-9 process
► Identify and rule out classes of protected persons
►“Are you one of the following: USC, PR, refugee, asylee or temporary resident?”
► If “yes”, then no more questions about status
25
E-Verify and Government Shutdowns
►E-Verify shuts down
►Employees with outstanding TNC’s were given an additional 12 days to make DHS or SSA contact as required
►Might be applicable in other circumstances when E-Verify is down
26
L-1 Site Visits Begin
►Similar to unannounced H-1B site visits
►Employer will need to present documentation verifying that the L-1 is being paid what was represented in the L petition
►Assure HR and receptionists prepared and a procedure in place to handle such visits
►Could involve high level employees where there is greater sensitivity to revealing compensation
27
Copyright © 2004 Fragomen, Del Rey, Bernsen & Loewy, P.C. 28
Questions?