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     Entiodu Junior Artist Username: Entiodu Post Number: 862 Registered: 02-2011 Posted From: 108.239.174.89 Rating: N/A |
Amendment Summary The Grassley amendment gives the Department of Labor increased authority to audit labor condition applications (LCAs) filed by some companies. Specifically: An employer can be audited by DOL if it employs more than 100 employees AND more than 15% of those employees are H1B visa workers. DoL can investigate an LCA if it has “clear indicators of fraud or misrepresentation of material fact, or is obviously inaccurate.” DOL may audit and investigate an employer under the above two cases after providing notice of intent to conduct an investigation, the only exception being if it is deemed that an advance notice of audit would interfere with the investigation (explained later). If any employer is found not to be in violation after an audit, they will not be audited again for four years. Because the vast majority of LCAs are filed by law-abiding employers who submit accurate LCAs with truthful information about both the employer as well as the employee, a large portion of LCAs filed will be unaffected by the above provisions. Questions & Answers Q - How will the DOL’a auditing role differ from the current procedure if the amendment becomes law? A - Currently, DOL only checks for completeness of an H1B LCA application and does not have authority to act on obvious signs of fraud and/or misrepresentation. It conducts audits of employers only on receiving a complaint and gives the employer an advance notice of audit. With the amendment, DOL may conduct audits as noted above in the summary. If it deems that an advance notice might allow companies to bury any evidence or audit findings, it may conduct the audit without advance notice. Section 3 (b) (7) amends clause a clause in the INA by describing the notice of intent to conduct an investigation. There is a reference that the determination by the DoL under that specific clause will not be subject to judicial review. This means that the decision regarding intent to conduct an investigation cannot be subject to judicial review i.e. the audit will be conducted as determined and the decision to conduct the same cannot be challenged in court. However, other parts of the investigation/audit, including any adverse results/decision of the investigation, can be subject to judicial review as with current audits. Q – What does not change from the current system? A_- There is much left unchanged by the proposed Grassley Amendment. Among policies not affected are: The audit process and the information that DOL may request from a company during an audit does not change. The resources and budget of DOL are not being changed by this amendment either. The penalties/process/remedies to be imposed if a company is found in violation of the law and the test of whether a company is found to be in violation of the law DOES NOT change from what it is today. (For both of the above, please note that the amendment refers back to existing sections in the Immigrant and Nationality Act.) The definition of fraud and misrepresentation does not change. A fraudulent company today will be deemed equally fraudulent with the amendment provisions. The only difference is that the company has an increased probability of getting caught under the new law due to the higher likelihood of getting audited. If the audit reveals no findings, just like today, there will be absolutely no impact on the LCA application other than a processing delay. There is absolutely no indication that the processing delays due to potential audits will be any more than what is seen today in audit of immigrant applications in other visa categories. Q - Does the amendment change anything about the original per-country limit removal bill language of HR3012? What is the effective date of the amendment? A – No. The original per country limit removal language as passed by the House is intact and is effective from FY 2012. The amendment is an addition and is only related to audits of employers who employ H1B employees. The amendment says nothing about the per country issue. Q - How is an employee affected by the audit of an employer? A – The amendment targets employers, not employees. As under current law, however, an employee with an LCAs that is disallowed will have to file a new H1B application through a different employer. Under the proposed amendment, employers will be audited if there are clear indicators that certain details in the LCA are misrepresented (e.g., dubious employer profile or employee job details). If an employer is audited and the audit finds the employer in the clear, the employees’ H1B application is not affected in any way. If the employer is found to be engaging in misrepresentation and fraud, the Labor certification (LCA) required for an H1B will be denied and the H1B application will be rejected. Q – If my company is found to be fraudulent, will the amendment impact existing H1Bs and approved I -140s and Green Cards? A – No. The amendment is not retroactive, so it will not impact any existing H1Bs. Secondly I-140s are under the prerogative of USCIS, and DOL does not have the authority to rescind I-140s and Green Cards. This amendment does nothing to change that. Perm Labor certification and H1B Labor certification are completely different processes. The amendment gives authority to DOL to audit companies during the filing of H1B LCA, NOT during the filing of PERM LCA. The bottom line is that the provisions in this amendment are not retroactive and will have no impact on any past applications/petitions. Q – Does the amendment mean that employers will limit H1B workers or let go of H1b workers to be under the 15% limit? A – The provisions only outline audit requirements. There is no limitation on the number of H1B employees that an employer can hire. There is no requirement/condition at all that employers stay below than 15% H1B employee level, as is being suggested on some forums. Q – Will the possibility of getting audited by DOL make employers wary of hiring H1B workers, especially the large companies with a high number of H1b workers? A – Over 350 technology companies have signed and expressed their support for this bill and the amendment, including large companies who routinely have more than 15% of their workforce on H1B, like Microsoft, Intel, Google, Apple, Cisco and HP. If the amendment were a draconian anti-H1B law as suggested by some lawyer groups, these reputable companies that depend on the H1B program would not support it. Companies will continue to hire workers as needed. Companies not engaged in fraud have no reason to change their policies at all. Criticism of the amendment has been based largely on far-fetched, subjective and hypothetical assumptions and misinterpretation of the INA. Immigration Voice believes that this amendment is good for immigrants, as it weeds out the bad employers in the system who are engaged in fraud and employee exploitation. Only such employers, whose business model is based on exploiting their workers and holding them back, will be impacted by this amendment’s provisions. It will be a deterrent to employers who willfully engage in discrepancies in wages, jobs and any other kind of misrepresentations. This amendment is the result of compromise between the various key stakeholders in high-skilled Immigration. Among the most important of these stakeholders are Immigration Voice members across the country who are stuck in application backlogs for many years and desperately require the per country cap removal proposed by H.R.3012. | ||
| Saint Side Hero Username: Saint Post Number: 7564 Registered: 01-2011 Posted From: 65.248.129.30 Rating: N/A |
most imp..audit esedi LCA ki perm certification ki kaadu.....only H1 will be effected... oka sari approve ina labor and I140s are safe....employer bad ithe..u may have to change the employer.... | ||
| Saint Side Hero Username: Saint Post Number: 7563 Registered: 01-2011 Posted From: 65.248.129.30 Rating: N/A |
http://immigrationvoice.org/forum/forum16-iv-agenda-and-legi slative-updates/3071325-faq-for-grassley-amendment-to-hr3012 .html#post3532518 aa lnk lo vunna PDF chadavandi.... < 100 vunna employers ki ee problem ledu.....full kush... |
