Tuesday, March 24, 2009

Foreign Employees Have Been Affected by Workforce Retention Issues

During the Economic Downturn, lots of problems are brought to the Unites States’ economy. For example, the decline in revenue, and the decreased demand for goods and services. As a result, many employers face difficult workforce “right-sizing” decision.

Many companies are engaging in lay-offs, temporary shut-downs, and wage and hour reductions. It is important for those companies to pay attention to the impact on foreign employees (including H-1B, L-1, TN, E-3, and other workers) in the permanent application process.

If the employer and/or the foreign employee fail to notify the U.S. Citizenship and Immigration Service (USCIS) or the Department of Labor that there have been changes, they may suffer serious consequences. For instance, if the H-1B employers pay less money than that listed on regulation of the Labor Condition Application (LCA), they may incur liability for the back pay and civil monetary penalties.

Employers must remember that workers are protected from discrimination and discharge without any legal reasons. In a mixed workforce of foreign and domestic workers, an employer must ensure that whatever policies or procedures it uses to identify workers for reduction-in-force are non-discriminatory in form or effect.

Fortunately, many of these problems that related to immigration can be avoided if employers fill amendments to the LCA on time or immigration petitions indicating reduced wages or hours. Below is a list of possible scenarios. If any of these apply,

Reduction in Wages:
If there are wage reductions without LCA amendment an employee could prevail on a complaint with the Department of Labor.
If a reduction in wages is significant (“material”) then an employer needs to amend other, non H1-B applications as well.

Reduction in Hours:
A reduction in hours that make an employee work below full time employment would probably be “material”, requiring an amended petition. Apart from this, a new LCA would also be required, indicating part-time hours.

It is necessary for employers to notify USCIS regarding any H1-B termination or risk continuing obligations for wages under the LCA.

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