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I-9, E-Verify, and Tentative Non-Confirmation

Posted by Afton Funk

Dec 1, 2012 12:02:00 PM

I-9 forms are one of those incredible mysteries of the modern era. The paper form is only a page long, and seems simple at first glance, but there are predators lurking in the shadows. All said, the forms are filled out by employers incorrectly an incredible 50% of the time. This often happens because HR often cannot oversee all of the hiring processes in every location, and there is incredible detail in the small print. This remarkable number of mistakes puts companies at risk for serious ducats. HRM is soon releasing the i9Pad which automates all of this, and helps companies get the document right the first time. We think that is pretty cool.

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Topics: I-9, Compliance, Onboarding

Government Crackdowns on Recruiters and HR Departments: H-1B forms and the Labor Condition Application (LCA)

Posted by Afton Funk

May 5, 2011 2:33:00 PM

The Department of Labor (DOL) has found a new weapon of choice for cracking down on non-compliance in employers: the H-1B form.  In early April the DOL asserted claims of nearly $7 million in back-wages and civil money penalties against Maryland’s Prince George’s County Public Schools.  The DOL raised issue with the school district’s requiring 1,044 H-1B visa teachers to pay program filing fees, which effectively decreased teachers’ wages below the wage rate mandated by the Labor Condition Application (LCA).

The H-1B visa allows aliens to assume temporary professional/specialty job roles, otherwise known as non-immigrant status, for U.S. employers.  Non-immigrant roles typically include science, engineering and teaching related jobs.  When applying to process an H-1B visa, employers must also fill out an LCA, which basically assures that the hiring of a non-immigrant into a U.S. workplace will benefit both the employer and employee and will not do any harm to existing U.S. employees in that workplace.  Specific requirements for the LCA are as follows:

  • Non-immigrants will be paid the prevailing wage set by the DOL, determined by job duties and employment location.
  • Working conditions of non-immigrant workers must not adversely affect the working conditions of U.S. workers in the same workplace.  Working conditions include hours worked, vacations nd benefits.
  • There are no strikes, lockouts or work stoppages taking place when the application is filed.
  • Adequate notification is given to U.S. employees that the employer intends to hire an H-1B non-immigrant worker and file an LCA.  Notification can either be given through a worker representative or by physically posting notifications of the employer’s intended actions

One unfair aspect of these LCA requirements is that there is currently no set methodology for determining the “prevailing wage” for a specific role.  It is unfair because the DOL can fine employers for improper interpretation of prevailing wage but gives no formal guidance on finding it.  Lucky for you, the HRM Direct team has compiled a list of pointers that is sure to please any nosy DOL auditor and will keep your business in the good graces of the government.

1. Get a Prevailing Wage Determination (PWD) from the OFLC’s National Prevailing Wage Center (NPWC).

To request a PWD from the NPWC, complete an ETA form 9141 here and mail it to:

U.S. Department of Labor
Employment and Training Administration
National Prevailing Wage and Helpdesk Center
Attn: PWD Request
1341 G Street, NW Suite 201
Washington, DC  20005-­314

2. Check to see if any Collective Bargaining Agreements (CBA) exist that cover wages for your employees’ position

The DOL provides a comprehensive list of CBAs here.

3. Consult the Online Wage Library of the Foreign Labor Data Certification Center.

The library is online and quick and easy to use.  It also allows you to see different wage rates by region.  Check it out here.

4. If all else fails, consult the government itself

The Bureau of Labor Statistics (BLS)  is an excellent resource for looking up wage statistics.  Of particular interest to those of you filling out LCAs is the BLS’ Occupational Employment Statistics section.

The government takes the hiring of H-1B non-immigrant employees very seriously.  If you do decide to embark on this route of hiring, make sure that you know exactly the legal obligations you take on.  As always, good luck!

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Topics: Compliance, H-1B

Why I-9 Compliance Should Be a Top Priority For Your Business

Posted by Afton Funk

Apr 20, 2011 10:56:00 AM

So you’ve gone through the entire recruiting process, received a signed offer letter and hired the perfect candidate.  If you think your role in the hiring process ends there, you are sorely mistaken.  Besides undergoing a satisfactory onboarding process, all new hires must properly complete government forms which enable them to legally call themselves employees of your company.   Out of all the new hire paperwork that needs to get done, one of the most familiar — our good friend the I-9 — is the most important to complete and maintain correctly.  Proper I-9 completion and compliance is a matter that the government takes very seriously, as demonstrated by the current Administration’s renewed vigor in audits for compliance enforcement.

Abercrombie and Fitch.  Chipotle.  Subway.  Macy’s.  All four of these mega-businesses have recently been penalized and fined hundreds of thousands of dollars by Immigration and Customs Enforcement (ICE) for noncompliance of I-9 laws.  Mind you, some of these businesses were pegged not for hiring undocumented workers, but simply for incorrectly filling out the forms.  Just this past week ICE issued 1000 Notice of Inspections to companies requesting Form I-9 documentation for all current employees and any employees terminated within the last 3 years. In the past, 80% of companies that have been inspected by the ICE ended up paying considerable civil money penalties for incorrectly filling out an I-9.

If ICE were to send your company a Notice of Inspection tomorrow, would you be ready?  All I-9 form documentation must be in accordance with 2006 interim final regulations.  I-9 forms must not only be complete, but also filled in properly, accurately and in a manner that is easily accessible by ICE.  Creating a customized company compliance plan for form I-9 documentation is your best defense against an ICE inspection.  A good plan should include:

  • A training session on how to properly handle and fill out I-9 forms
  • Consulting a third-party to audit your system to make sure it would pass an ICE inspection
  • Regular audits completed in-house
  • A system (automated or otherwise) to ensure that forms are completed correctly within 3 days of hire.

While the government may offer some leniency through its Good Faith Compliance provision that allows companies up to 10 days to fix I-9 documentation errors that are considered minor, you do not want to take any chances.  Do your due diligence and get a process in place to collect and maintain proper documentation.

In this case, it is not about what you do, but how you do it.

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Topics: I-9, Compliance, Onboarding