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Ask the HR Expert: Immigration Law

Posted by NEHRA  August 10, 2009 09:00 AM

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Q. We have a few computer programmers who are on H-1B visas. They have all indicated that they will be returning to India within the next 12 months to visit family, for 21 - 60 days. We have a sister company in India. If they were asked to go to our sister company's office to work on U.S.-based projects while in India and they agree to do so, would the parent company be obligated to pay them at their U.S. rate of pay or at the prevailing rate of pay for computer programmers in India?

A. The Department of Labor (DOL) regulates the payment of wages to H-1B workers in connection with the Labor Condition Application (LCA) which your company filed to support the workers' H-1B visa petitions. The DOL regulations require that the H-1B employer pay the H-1B workers the wage that was promised in the LCA on a regular and uninterrupted basis, unless the employee voluntarily takes a leave of absence at his or her own request. If the employee is on a leave of absence, but chooses to work for your sister company in India during that time, and the work being performed benefits the U.S. company, the DOL would dispute that this was a true leave of absence and would likely require the payment of wages throughout that period, at the rate promised in the underlying LCA. The safest and most conservative course of action is to continue to pay the wages promised on the LCA.

SUSAN COHEN


Q. My H1B visa expired in November 2008 and we initiated proceedings to renew it. Unfortunately, my HR file was lost in an office move and I was told that without sending the original approval it would be impossible to obtain a renewal. Since I have been seconded to a non-US posting this is not really a problem for me (and I'm not really interested in seeking permanent resident status). However, I'm still on HQ payroll and I pay US taxes and SS. Are there any risks to that?

A. When an employer sponsors an employee for an H-1B visa, rights and obligations accrue separately to the employer and to the employee. If the H-1B worker ceases to work for the employer in the U.S., the employer is required to notify USCIS when the H-1B worker terminates employment. This is the only proper way to cut off the U.S. employer's wage obligations to the employee, under the underlying Labor Condition Application that supports the H-1B visa petition. As a prior H-1B visa holder, it would have been important for you to ensure that you never worked in the U.S. beyond the end date of the validity of your H-1B status. You can always obtain a renewal of extension with a copy of the prior approval notice - you do not need the original for that. Since you are not a lawful permanent resident and are not working in the U.S., then you are not required to pay U.S. taxes, so be aware that you may be paying them unnecessarily. Your employer should be careful to document the fact that you are working for the company outside of the U.S. so that there is no appearance, upon an audit, that you are working illegally in the U.S. (which you are not).

SUSAN COHEN

Q. I came to the U.S. when I was 18 to attend university. I remained here on an F1 visa until I graduated in April 2003. I then began working for an international organization on a G4 visa. I have been posted abroad since October 2006, but I come back to the U.S. periodically to touch base with headquarters. I would like to know whether I am eligible to apply for a green card. Under what circumstances would I be eligible?

A. You are eligible to apply under any category that works for you. Most immigration is family based, so this would mean that you would need a U.S. citizen or permanent resident family member to sponsor you. Depending on whether the person is a U.S. citizen or a permanent resident, the spouse, parent or child over 21 years or even a sibling may be the sponsor. Some of these categories have very significant backlogs of many years.

If family based immigration doesn’t work for you, then the employment based system would be available. Most categories require employer sponsorship and a labor market test, called PERM, where the employer shows that there are not qualified U.S. citizens or permanent residents who qualify for a specific job. I am attaching a link to my article which discusses the normal employment based process. If you are an extraordinary ability individual, or an outstanding researcher and/or professor, or a person whose work is in the national interest, you would not have to have an employer comply with the normal PERM process. There is also a provision for special immigrants who may receive more favorable treatment if they are retired officers or employees of certain international organizations who have lived in the United States for a certain time.

Since you have G-4 status, which means that you work in the U.S. for an international organization, you would have to give up any claim you may have to diplomatic or similar status once you qualify under the regular green card application system described above.

CAROLYN FUCHS

Q. I came to the U.S. on an H-1B visa. The H-1B stamp on my passport was for the H-1B petition issued by Company A. Last year, I filed for transfer of H-1B to Company B and got it approved. I also filed an application for a Green Card. Can I travel outside U.S. while my Green Card is on process?

A. Your question does not indicate what type of green card application you have in process. For example, if your first employer filed for you, your new employer may or may not be eligible to continue it. If your current employer has filed for you, then you probably need a valid H-B visa or an Advance Parole (travel permit) to travel outside of the U.S. However, we would need more specific facts to provide any guidance, since once you leave the U.S.; you need to be sure that you have the right visa or other permit to return. My suggestion would be to consult with the attorney who is handling your case.

CAROLYN FUCHS

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About NEHRA - The Voice of HR Featuring articles and resources for Human Resources / HR professional and hiring managers from the Northeast Human Resources Association (NEHRA).
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