Law Offices of Susheela Verma :: Immigration Attorneys in Woodbridge and Edison New Jersey (NJ)

Business Law

Comprehensive legal guidance to Information Technology Consulting/staffing and temporary help service providers including, but not limited to, the following:

  • H-1B processing and related matters

  • Labor Condition Application (“LCA”) compliance requirements

  • Executive/owners liability for misrepresentation or non compliance with the LCA wage and other related regulations

  • H-1B related record keeping requirements and consequences for failure to keep the required files in accordance with the federal regulations

  • Liability for failure to pay the LCA wages

  • Federal Labor Department Audits (H-1B audit)

  • Owner and personnel counseling with an objective to make them aware of treacherous legal issues that an H-1B employer faces

  • Successor liability; guidance on mergers and acquisition keeping in mind the liability faced by a successor in interest

  • Litigating with an H-1B employee. How to make proper decisions before commencing a law suit against an H-1B employee. We are very well versed in all immigration, labor department and state and federal law issues that get involved in a litigation with an H-1B employee. You may want to audit your records from multiple angles before threatening a law suit against a non immigrant H-1B worker

  • Legal issues arising from email communication and how to manage the same

  • How to avoid creation of records that may be interpreted criminal in nature and may amount to creation of evidence leading to allegation of immigration fraud and resulting liability of owners, including possible criminal prosecution

  • H-1B employees and restrictive covenants; Creating and implementing an enforceable contract. For example simply having a contract seeking reimbursement of the fees and cost related to H-1B processing may create an illegal and unenforceable contract

  • Issues pertaining to the H-1B fees paid by the employees. How to avoid violation of the law and negative implications coming out of the same

  • Recovering damages from H1-B employees for breach of contracts; the proper way of doing it

  • Filing H-1B as Favors, the consequences and exposure

  • Benefits and H-1B employees; right way and wrong way

  • Per diem payments and legal implications

  • So called 80/20 split arrangements; pros and cons. How to avoid negative consequences of such arrangements

  • 1099 vs. w2 employees and how to avoid possible exposure to discrimination claims by U.S. workers

  • Assignment of third party H-1B employees and protection of your client contacts

  • Connectivity between language of your contracts and your qualification as an employer to support an H-1B petition

  • Required analysis for third party consultants working on H-1B through your entity to avoid negative immigration and other legal consequences

►►  Examples of Negative Consequences of Email Communication related to Non Immigrant Workers

  • An employer hires an H-1B employee and issues a termination letter as it did not have a project for the employee. The employer does not send a letter to the USCIS confirming the termination. Months after months pass and the employee is still non productive and is being marketed by the company. Eventually his services are terminated, USCIS is advised and employee files a claim for past wages. The employer disputes the claim. The employer claimed that the employee ceased to be its employee. The employee however had countless emails where he was constantly contacted by the marketing personnel for the purposes of locating an assignment. In light of existence of such emails, it will be impossible for the employer to make a claim that the employee was not working for the company. In this case the DOL came back with a determination of liability against the employer for the wages.

  • In a litigation the employer claimed that the employee came back from India as an H-1B without its approval and consent and was not an employee. The discovery revealed several hundred pages worth of emails where the employee was being marketed for a project. In light of these emails, if there is a trial, the employer will lose all credibility and the case

  • The Information Technology Consulting industry is full of examples where emails play a critical role in creating liability and they do decide the case. Before you commence a litigation, or ask your attorney to send a threatening letter to an employee, it is imperative that you audit your email records. There is yet another interesting example pointing to the critical nature of email communication. In this case, the employer issued wage checks to the employee, asked her to cash them and hand over the cash to the employer. It was pretty much undocumented but an email confirming all this broke the camel's back. It is a fraud and existence of just one email confirming this transaction can provide sufficient evidence to the USCIS, DOL or the employee to prove existence of fraud and violation of many other laws.

►►   L-1 Non Immigrant Workers:

Multinational staffing and temporary help service firms often use L-1 category to employ foreign workers in the United States. Our service approach with respect to this category entails;

  1. guidance for appropriate initial corporate structure;

  2. comparison with the H-1B category to ascertain the most suitable category for the worker and the employer;

  3. proactive approach to a client's nature of business and suitability of one category over the other;

  4. complete guidance concerning the existing corporate structure and immigration requirements;

  5. thorough and proper evaluation of a client's business objective to ascertain whether L-1 can even be used;

  6. client project evaluation to identify issues;

  7. evaluation of product and process to analyze the viability of L-1B category

  8. guidance to implement management structure required to sustain a management executive category classification;

  9. caution and guidance keeping in mind the immigration trends;

  10. complete evaluation to identify any other viable immigration categories to accommodate client's need for foreign workers.

►  L1 V H-1B

Information technology staffing and temporary help service firms use both L-1 and H-1B non immigrant worker categories to bring foreign workers into the United States. Each category has its plus and minus. The H-1B non immigrant worker category is highly regulated and, financially and otherwise, is much more cumbersome for an employer than L-1 category. In the past, an employer could use L-1 category to bring in temporary workers into the United States and assign them to provide services at a third party location. Several years ago, the law changed and the employers are now prohibited from assigning L-1 workers to a third party location. Therefore, practically and legally speaking, for staffing and temporary help service firms employing technical foreign workers on L-1 has become unavailable. Companies like Tata Consulting and WIPRO still use this category as they undertake projects or may have in house product development or project management undertakings. If a company undertakes a project and is responsible for complete management and delivery of the same, employing foreign workers for that project can be done using L-1 category. An assignment to a third party client however cannot be done using L-1 category.

L-1 category is not as regulated as H-1B. An H-1B employer must obtain a prevailing wage determination from the Labor Department prior to filing an H-1B petition and cannot pay the H-1B employee less than the prevailing wage. A payment of wages lower than the prevailing wage carries significant consequences. There is no prevailing wage requirement for an L-1 category. Further, an L-1 employer can pay the wages overseas or in the United States. A combination of the two is also acceptable. The documentation and record keeping requirements for H-1B are extensive, complex and strict. L-1 is not subject to similar record keeping requirements. For an H-1B it must be established that the position offered requires the services of someone holding at least a Bachelors degree and that the person who is sought to be employed has the required education and qualifications. The educational requirements for L-1 are not so stringent. The L-1 category however requires an existence of a foreign presence and a qualifying relationship between the overseas and the U.S. business (entity or otherwise). The management category requires a proper management structure in place to justify the position to be classified in management category.