Is my child's pod teacher my employee?

By Jessica Suotmaa 0

As soon as Governor Newsom announced the strict requirements needed to reopen public schools in California for in-person instruction, parents have scrambled to find alternatives.   In addition to the traditional alternatives of withdrawing a child for homeschooling, or hiring a nanny or babysitter to watch their child, some parents have formed learning pods and hired teachers.  But are these teachers and home tutors considered employees under California’s new AB-5 rule?

What’s CA AB-5 again?

California Assembly Bill 5 expands on the Supreme Court decision in Dynamex Operations West Inc. v. Superior Court, where the court ruled that employers have the burden of proof in showing their workers are not employees.

AB-5 went into effect on  January 1, 2020 and is famously affecting gig workers in California. However, the bill actually utilizes a three-prong rule, called the ABC rule, to determine whether a worker is an employee or not. The bill does include exceptions. We’ve previously discussed AB-5 on our blog as well.

How to determine if your worker is an employee:

  • Can the worker control and direct their work freely without your intervention in regards to the performance of the work?
  • Is the worker performing work that is outside the usual course of the your (or your company’s) business?
  • Is the worker usually engaged in a trade, occupation, or business of the same nature as the work they perform for you?

Do tutors and teachers meet the exception?

The statute has a list of exceptions for professions, such as cosmetologists or construction workers, who are exempt from AB-5. Teachers and tutors are not exempt.

Following the above three-pronged test, we can determine that in order for a tutor or teacher to not be an employee and meet these requirements, they would have to be completely in control of…

  • what they teach, e.g., the curriculum/lesson plans
  • how they teach
  • when they teach, e.g., the hours
  • and even where they teach

By now you may have realized that it would be impossible for a tutor or teacher hired to monitor distance learning to meet those requirements. However, a homeschool or preschool teacher/tutor might be able to meet them. It depends on who you hire and for what type of teaching.

Note: AB-5 affects freelancers who were previously paid as independent contractors, not in-home “household employees”, such as nannies.

What are the consequences of violating AB-5?

Under current circumstances, it is unclear what the consequences might be for parents looking to supplement or replace distance learning.  If enforced, the violations are severe, starting at $5,000 to 25,000 for misclassifying an employee as an independent contractor.

What can I do, as a parent, to avoid violating AB-5?

Look for established tutors or teachers who have formed their own company for providing education. Do not hire an “all-in-one” person who performs childcare, tutors, and cleans, for example.

If you do decide you need someone to do more than just provide tutoring or teach a curriculum, then consider hiring them as an employee or household employee (if they qualify).  In doing so, be sure to comply with California wage and hour laws, purchase worker’s compensation insurance, and pay payroll taxes…among other things.

What can I do as a tutor or teacher looking to work?

Generally, if you do not qualify as an independent contractor, you would need to form an entity and purchase liability coverage, etc. If you have questions regarding what type of entity to form, contact us for your free consultation!

employer responsibilities during covid-19

By Jessica Suotmaa 0

While some employers are subjected to the higher Aerosol Transmissible Diseases (ATD) Standard (California Code of Regulations, title 8, section 5199) in order to protect employees from airborne infectious diseases such as COVID-19, most employers are not. If you are not in healthcare, funeral, or drug-related industries, you will not be subjected to the ATD Occupational Safety and Health Administration (OSHA) standard. You can find the list of workplaces subject to the ATD standard here.

Please note that even if your business is not subject to the high standards of ATD, it is still required to follow the latest COVID-19 OSHA guidance for workplace safety. We all know we should wash our hands (yes, with soap), but this post will highlight some of the other key points small business owners and employers must follow in order to safely reopen during the pandemic.

1. Provide Washing Facilities

Every workplace should have “washing facilities”, or a place for workers to wash their hands.  This could be a sink, or anywhere with water, soap (“washing agent”), and towels for drying.

See Title 8 sections 1527, 3366, 3457 and 8397.4

2. Disinfect and Clean Routinely

Perhaps your workplace already has cough and sneeze policies and a robust cleaning schedule, but in times of a pandemic, you should set higher standards for your workplace cleanliness.  You can do so by:

  • Reducing shared workplace areas
  • If employees must share certain equipment or space, provide disinfectant sprays or wipes so that they can clean before and after each use
  • Provide face coverings or encourage employees to use their own while in the workplace
  • Provide disposable paper towels/tissues for employees
  • Provide trash cans in convenient locations
  • Provide hand-sanitizer for employee use
  • Purchase EPA-approved disinfectants and cleaning supplies
  • Re-train cleaning staff to follow cleaning supply manufacturer’s guidelines for usage
  • Provide necessary Personal Protective Equipment (PPE), such as face masks, gloves, disinfectant wipes for employees to use freely

3. Establish Sick Leave Policies

Employers should establish sick leave policies for all employees for their safety.  This does not just include allowing for sick leave, paying for sick leave, or establishing how an employee qualifies for sick leave, but also includes the reasons why an employee should not come to work. Here’s a list of what every employer should do during the coronavirus pandemic:

  • Require sick employees to remain home.
  • Send sick employees home if they exhibit any of the following symptoms:
    • cough
    • fever
    • difficulty breathing
    • chills
    • muscle pain
    • headache
    • sore throat
    • or recent loss of taste or smell.
  • Prevent sick employees from returning to work until:
    • they have been fever-free for at least three days without taking fever reducer medication and
    • they have been symptom-free for at least ten days since their first symptoms appeared
  • Provide employees with paid sick leave if required (Families First Coronavirus Response Act)

If one of your employees is tested positive for COVID-19, be sure to keep the information private per the Americans with Disabilities Act (ADA).

4. Create a Workplace Injury and Illness Protection Program (IIPP)

California employers are required to create and set up a program to protect employees from injury and illness, which includes infectious diseases such as COVID-19.  As an employer, you must follow the following steps:

  1. Determine if your workplace could be a COVID-19 hazard. For example, if there has been exposure to someone who has tested positive for the virus, or if it’s a high-traffic area, etc.
  2. Evaluate the risk of exposure to COVID-19
  3. Prevent infection in the place by:
    1. creating physical barriers to control the spread of virus, such as the plastic screens at checkout counters,
    2. social distancing,
    3. providing appropriate personal protective equipment (PPE), hygiene, and cleaning supplies.
  4. If concerned, practice infection control measures provided by the Centers for Disease Control and Prevention (CDC):

See Title 8 section 3203

5. Encourage Social Distancing

By now, we are all familiar with the term: “social distancing” where we are encouraged to stay several feet away from any other person at all times.  As an employer, this could mean several things for you:

6. Provide Employee Training

As an employer, you should train your employees so that they are aware of how to protect themselves from COVID-19 both in the workplace and outside of it. By teaching your employees how to protect themselves, you will ultimately protect all of your workforce, you, and your customers.

Be sure all your employees are aware of the following:

 

For additional guidance on how to provide a safe workplace for your employees during this COVID-19 pandemic, please visit the California website. Your specific industry might require additional steps not listed in this article. The website is also a good resource for downloadable documents to print and post for your employees’ education.

If you have questions regarding employer liability, or even a wishlist of topics we could cover, please comment below or send us a message.

COVID-19 Relief for Small Business Owners and Employers

By Jessica Suotmaa 0

With the current COVID-19 pandemic, the closing of non-essential businesses, and the fears for an upcoming recession, many small business owners are either suffering, or preparing to suffer. We, at Lum Law Group, are in the same boat. We are also a family-owned small business with few employees that, for the most part, caters to our local community.  While we are still answering calls and helping existing and potential clients, we share the same concerns as our clients, our employees, and our fellow small business owners.

In this article, we have outlined relief and resources that may assist small business owners during these difficult times. We would like to remind you that you can call us if you need assistance with vendors, landlords, or any other COVID-19 related issue. We are here to help!

Payroll: Paycheck Protection Program

Part of the CARES Act was to fund the Small Business Administration (SBA) to provide assistance to small business to continue to make payroll.  The SBA’s Paycheck Protection Program (PPP) allows businesses with fewer than 500 employees to borrow money specifically for payroll.  Less than twenty five percent of the borrowed amount can be used for other things, such as mortgage interest, rent, and utilities. You can borrow enough to cover an eight week period, which must be used within eight weeks after receiving the funds.  Loan repayments are deferred for six months.

While applications opened today (April 3, 2020), SBA announced that self-employed individuals and independent contractors will not be able to apply until April 10, 2020.

Payroll: Defer Paying Social Security

If you are self-employed, or have employees, you can defer making the social security portion of employment taxes for the time being.  This would mean a reduction of 6.2 percent tax paid on wages. The deferral allows you to pay the deferred amount over a two and a half year period, where half of it would have to be paid by December 31, 2021 and the second half by December 31, 2022.

Payroll: Keep Paying Your Employees

As part of the new economic stimulus plan, if you can prove that your business has lost fifty percent or more in profits due to coronavirus, your business can qualify for a “prize” for retaining your employees. Even if your business is closed, if you keep your employees on payroll, you can qualify for up to fifty percent of your employee’s wages.  This “prize” for keeping payroll not only helps your employees who may not be able to work from home, or may not have much to do.

As an employer, you will receive the prize in the form of a tax credit on your business tax return.

Note: Businesses that receive a SBA loan will not qualify for this tax credit.

Tax Deduction: Restaurant, Retail, Hotel

If you are a restaurant, hotel, or retail store owner, you can prepare and file amended tax returns to deduct the cost of property improvements. This deduction was supposed to be part of the 2017 tax overhaul anyway.

 

As you can tell, most of the available relief is for employers.  If you have questions about California unemployment benefits for independent contractors and self-employed individuals, please visit the EDD website. If you would like to learn more about the “stimulus check”, please read our post here.  If you have issues with vendors, landlords, business partners, etc. please contact us for how we can help you. Together, we can get through the crisis!

Coronavirus: Can I be fired?

By Jessica Suotmaa 0

Due to the coronavirus pandemic, companies have lost business, sales have gone down, and profits have plummeted. As a result, many are cutting costs by reducing work hours, or even their workforce. Here in Southern California, we have encountered questions from you regarding job loss, such as:

“Can my company let me go for no reason?”
“Can I be fired because of the coronavirus / COVID-19?”
“Can I fight back if my company lays me off for no reason?”

Also, on March 17th, 2020, Governor Gavin Newsom signed an executive order regarding this issue. If you’re working in California, please continue reading as we explain the ordinary situation, and the current situation.

California is “at will”

Unless you have an employment contract specifying employment terms, such as the length of employment, or specific dates of employment, you are subject to the “at will” employment terms in California state.  What “at will” means is that you can be let go at any time, for any reason–or alternatively, no reason at all, at the employer’s will.

Given this, the short answer to all of the questions above is: “yes”. You can be let go, for no reason at all, by your employer due to the coronavirus.

If you do have an employment contract, be sure to see what the terms state regarding breach of contract or early termination.

What is Cal-WARN Act?

If you’re an employer, the executive order signed on March 17th, 2020 will help you.  The order modifies the existing Cal-WARN act to cover COVID-19 (coronavirus).  California Worker’s Adjustment and Retraining Notification (Cal-WARN) originally applies to California employers with more than 75 employees, including part-timers.  Under the act, qualified employers must provide 60-day notice to its employees prior to closing the business operations at the employee’s location, relocating operations to a location more than 100 miles away, or terminating more than 50 employees in a 30-day period.

However, the Cal-WARN act does not cover physical calamities or acts of war, which could be an exception the COVID-19 pandemic falls under.

Violation of the Cal-WARN Act could entitle employees to back pay and cash equivalent to benefits for up to a 60-days or one half of the employee’s employment period (whichever is shorter).

Relief for Employers

The executive order signed by Governor Newsom went into effect on March 4th, 2020, when California officially declared a state of emergency.  Most notably, the order suspends the 60-day notification requirement to employers who meet certain requirements, such as:

  • Prior to termination, relocation, or mass layoffs, the employer notifies affected employees, Employment Development Department (EDD), the local workforce investment board, and the chief elected official of each city and county government.
  • If the employer cannot give 60-day notice, it is required to provide notice as soon as possible, with a brief explanation as to why it cannot adhere to the 60-day requirement.
  • The employer is terminating, relocating, or laying off employees due to circumstances caused by COVID-19, that were not reasonably foreseeable.
  • If the employer is providing notice after March 17, 2020, the employer must include the following statement in the notice:

“If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UY and other resources available for workers is available at labor.ca.gov/coronavirus2019.“

If you have any questions regarding unlawful termination, how to handle mass layoffs, or just questions regarding the legal aspects of covid-19 and how it may affect your employment or employees, contact us today!

 

 

 

The 7 new 2020 laws in California

By Jessica Suotmaa 0

If you’re a business owner with employees, it is time to familiarize yourself with these seven new employment-related laws that went into affect on January 1, 2020. Ensure you follow best hiring practices and follow these laws for existing employees.

1. New minimum wage

California has a new minimum wage. If your business employees 25 or less people, the new minimum wage is $12/hour. Otherwise the new minimum wage is $13/hr.

2. Independent contractors

We wrote about the AB-5 law previously, but it is still worth revisiting if you’re hiring freelance workers and treating them like independent contractors. The new law dictates that if a business controls and directs the work of the worker, and the work is an integral part of the business (think, a gig economy driver working for a ride service company), then they cannot be characterized as an independent contractor. Instead, the business has to treat them as an employee.

3. Sexual Harassment Training

If your business has more than five employees, you are required to provide sexual harassment training to all employees every two years.  SB 1343 also requires employers to provide new employees sexual harassment training within six months of being hired.

4. Lactation Accommodation

California already requires businesses to provide nursing mothers time to nurse or pump, but with the passing of SB142, businesses must ensure nursing mothers have a proper place to do so. A restroom or break room is insufficient. The location must be close to the employee’s work station, must have electrical outlets, and must be private.

5. Arbitration Agreements

An arbitration agreement is a contract whereby an employee and employer agree that certain, if not all, disputes will be settled via arbitration outside the court (rather than in court with a lawsuit). Companies can no longer force employees into mandatory arbitration agreements with the passing of AB51. This law does not apply to arbitration agreements entered into prior to January 1, 2020.

6. Paid Family Leave

With SB 83, the benefits under paid family leave increase from six weeks to eight weeks. New parents will have more time to stay home with their children starting July 1, 2020.

7. Hair Discrimination

California has banned discrimination based on natural hair style or texture with the passing of SB 188, also known as the Crown Law. Employers and schools cannot discriminate against potential incumbents based on their natural hair, or require a certain hairstyle instead of their natural hair.

 

Do you have questions or concerns as a business-owner and employer? Call an experienced business and employment attorney today! 

3 New Changes for H1-B Filers in 2019

By Jessica Suotmaa 0

Here at Lum Law Group, we have already begun preparing H1-B petitions on behalf of our clients.  If you plan on filing this year, do not wait till mid-March (it might be too late!) Contact our office for answers and assistance on filing your H1-B petition this year!

On January 31, 2019, DHS has issued the  final H1-B ruling. on the anticipated H1-B processing changes.  On January 31, 2019, USCIS published the final H1-B ruling.

1. Having a U.S. Master’s Degree Helps

USCIS’ new “reverse selection order” will apply to the upcoming FY 2020 filing season. If you’re unsure as to what the word “reverse” refers to, here’s how the random visa selection used to work:

  1. Select 65,000 from a pool of advanced degree exempt “regular” bachelor’s degree holders.
  2. Select 20,000 from a pool of master’s degree holders.

Here’s how the current selection will work:

  1. Select 65,000 from a pool that includes both “regular” bachelor’s degree and advanced degree holders.
  2. Select 20,000 from a pool that includes the remaining master’s degree holders.

The selection order reversal will increase the chances of a advanced degree holder to “win” the H1-B lottery by an estimated 16%, and decrease the chances for a bachelor’s degree only employee to be selected.

2. Early Elimination via Pre-registration

The new pre-registration requirement will require the employer (company) petitioning for employees to first register the employee electronically.  The electronic registration will be quick and easy, requiring only basic information such as the employee’s name, citizenship, passport number, job title, and whether the employee has a U.S. master’s degree.

But, it will only be open for a limited period of time, possibly only 14 days (the minimum). During this time, petitioners can delete an inaccurate registration and resubmit, as well as edit a registration prior to submission.

USCIS will then select from pre-registered petitioners. What this means is that many will be rejected at the pre-selection process and not allowed to join the H1-B visa lottery selection.

USCIS states the purpose of pre-registration is to reduce the number of H1-B petitions it receives, screen for duplicates, and to reduce H1-B fraud and not for eligibility purposes. However, the inclusion of a “U.S. Master’s Degree” in the pre-selection process suggests USCIS may prefer U.S. master degree holders over other pre-registrations.

3. H1-B Filing More Affordable

The new rule goes in-depth on the cost analysis of the new implemented changes to H1-b non-immigrant visa processing. The report analyzes both agency savings and petitioner savings.  Where previously petitioners would have to hire someone, either in-house or external, to prepare Foreign Labor Certificate and the entire Form 129 – H1-B Specialty Occupation Worker, the pre-registration would reduce the cost of trying.  A failed pre-registration screening will result in the petitioner saving significant amounts of money in preparation fees and USCIS filing fees.

In addition, many small businesses who did not have the budget to apply for H1-B given it’s high-entrance cost and risk of failure can now more readily join the lottery.

 

Now that we’ve highlighted the three key takeaways from the new H1-B rule, you might wonder about premium processing? On January 28th, 2019, USCIS published a press release stating it will resume premium processing cap H1-B petitions for FY 2019.  Please contact us if you have any questions regarding this issue.

 

3 Things You Can Do to Make Interviewing Job Candidates Easier

By Lisa 0

While startup founders are well-known for their skills in selling their business, they’re also known for being smart about hiring.  Small business owners, especially long-term owners or new entrepreneurs, may not be as hiring savvy. If you’re new to the hiring process, here’s a few strategies you can employ for a more successful interview. 

Prepare to Sell the Position

A job interview is a two-way street. The candidate is interviewing you every bit as much as you are interviewing them. You will need to give a candidate a reason to want to work for you, knowing that they may have several employment options available to them. In order to prepare, you should figure out ahead of time what the selling points of your organization are and prepare an elevator pitch.  Rehearse how to work them into the interview. Expect that every candidate who walks in the door will be the right candidate for the job and be ready ahead of time to seal the deal.

Prepare Questions Beforehand

Job interviews are generally not very long. Before you know it, you are saying goodbye to the job candidate and sending them on their way. Wasting time during an interview helps neither you nor the candidate.  By taking some time before the interview to plan the flow of the interview and the questions you’ll be asking, you can use the scheduled time more effectively.  Just like you can sense that a candidate came unprepared, they can sense the same of you.  Not only does a little preparation go a long way to making a good impression, it also helps to guide the conversation. Come up with a few questions that you believe will give you a sense of your candidate’s abilities. It’s also a good idea to know who you can and can’t hire.

Practice Active Listening

President Lyndon Johnson once said, “You aren’t learning anything when you’re talking.” This holds true when you are conducting an interview as talking too much is one of the common mistakes that interviewers make. While you want to sell your company, an interview is also your chance to see how a job candidate handles certain situations and responds to pressure. It is difficult to get a sense of the candidate when you are the one who is doing all of the talking. At the same time, practicing active listening does not necessarily equal silence as it is possible to listen and still participate in the conversation.

By knowing ahead of time how best to conduct a job interview, you can go a long way to ensuring that interview will be productive.  A good job interview helps you schedule fewer interviews, spend less time interviewing, and ultimately find the right candidate quicker.

If you would like share your interviewing tips and experiences with other new employers, please comment below!

Are you prepared for an ICE RAID?

By Jessica Suotmaa 0

Since the beginning of the year, we’ve seen an increase in ICE employment site raids. Many attorneys discuss what to do when ICE knocks on your door–discussing your rights and responsibility of compliance, but here we’ll be advising the employer.  If you’re small business owner, franchisee, or anyone who employs another person, this is for you.

Why does ICE conduct “raids” and “audits”?

ICE stands for Immigration & Customs Enforcement, which means unless you’re in the import/export business, they are knocking on your door to check for undocumented workers.  An ICE audit requires employers to provide copies of all I-9 forms, which verifies an employee’s employment eligibility, on file with HR.

ICE also arrests employers who grossly break employment laws, and issues fines for employees who are not compliant.

Did you know? An error in record keeping can cost you $224-2,236 per form/employee!

What does I-9 compliance mean?

As an employer, you are required to collect United States Citizenship & Immigration Services (USCIS) I-9 forms from every employee working in the U.S.  The most recent I-9 Employment Eligibility form can be viewed here.

Did you know? 76% of I-9 forms have an error that could result in a fine!

Instructions state you must have the employee fill out the I-9 form first, then within three days of hire examine and verify the employee’s documents. The employee should have provided two forms of identification and have valid employment authorization.

Don’t think the three-day deadline is optional. Employers who are caught with employees whose identifications they failed to verify can be charged for willfully employing illegal aliens.

Backdating forms is also not an option–it is illegal. Falsifying documents is one of the worst crimes a small business owner can commit. In 2015, a small California-based manufacturing company was fined $12,000 for two things: 1. Failure to maintain valid I-9 forms for 18 of its employees. 2. Backdating I-9 forms after receiving an audit notice.  Don’t be like Liberty Packaging Inc.

Once you’ve obtained executed I-9 forms and have verified the IDs, then you must keep the forms for three years from the employee’s first day of employment, or one year after the employee’s last day of employment.

I’m just a small business owner–they won’t audit me

Many of us might think only large companies are audited, but this is not the case. In 2014, ICE conducted 1,320 work site audits, of which fifty percent had under 100 employees (“small” businesses).  Your business might not be on the radar, but if even one employee has an outstanding warrant of arrest, then all of your employees will be inspected onsite.

What do I do if ICE is outside?

  • Ask for identification. Get a business card or take a picture of it with your cellphone.
  • Ask if they have a warrant.
  • Check that the warrant is signed by a judge.
  • Make a copy of the warrant.
  • Give them your lawyer’s business card.
  • Be polite and ssk them how you can help them.
  • Do not be defensive or uncooperative.
  • Ask if they will accept copies instead of originals. If they refuse, then ask that you be allowed to make copies before originals are taken offsite.
  • Ask for an inventory of everything they’ve seized, if relevant.
  • Call your attorney.

Know that you only have to let ICE into private premises if they have a signed warrant to inspect premises. Otherwise ICE can only enter places of business.

Regardless of your circumstances, we do not recommend you to hand over any I-9s without consulting an immigration or employment attorney familiar with I-9s and ICE audits.  Contact our office if you need to speak to an attorney now.

What if I receive a notice of an administrative audit?

If ICE has a warrant for your company’s I-9 forms, you have 72 hours to produce the forms.  We do not recommend you to rush to your HR and produce them immediately. Rather, schedule a date and time for the I-9s to be picked up.  Be sure to make a copy of everything you submit to USCIS or ICE and maintain records of all interactions.

If you have several locations, or your HR is not on site, or you just don’t think you can make the 72 hour deadline, then explain your circumstances and ask for an extension. ICE will normally grant you a short extension.

Finally, if ICE determines you have formative errors in your documents, it will give you 10 days to correct them. If ICE determines you have substantive errors in your documents, it will issue you a notice of a fine or otherwise. If you passed your audit, you will receive a clearance notice.

What can I do to prepare for an audit or raid?

If ICE is outside your door, it’s already a little late. It’s also a little late to start panicking when you receive an audit notice in the mail.  The key is to prepare before a potential audit. Here’s what you can do to ensure your business is ready for an I-9 audit or ICE raid:

  • Take out all your existing I-9 forms and keep them in a separate file
  • Ensure all employees have filled out an I-9 form in its entirety
    • If upon review you discover an employee has not filled out the I-9 at all, then have them fill it out immediately and use the current date. Do not back date.
    • Ensure non-citizen employees fill out either their Alien registration number of I-94 number.
  • Ensure you have filled in Part 2 of the I-9 form in its entirety
    • Fill in any blank spaces with a different colored pen and date accordingly.
  • Fix any errors immediately.
    • Correct and notate the correction using a different colored pen and having the person filling it out initial on the side with a current date.
    • If the error cannot be corrected, fill out a new form and attach a memo as to why a new form was necessary.
  • Shred any I-9 forms you no longer need to keep (3 years, 1 year rule)
  • Keep track of any employees who have Employment Authorization Cards (work permits)
  • Ask HR to keep a schedule of EAD expiration dates and promptly remind employees of the deadlines
  • Ensure you are equipped to produce anything ICE may ask you for, including:
    • List of current employees (not independent contractors)
    • List of recently terminated employees
    • Quarterly wage and hour reports
    • Payroll records
    • E-verify confirmations (if relevant)
    • Business information, including business owner’s social security number
  • Designate someone who will be in charge of monitoring the ICE investigation, keeping records, and notifying your attorney.
  • Have employee rights information available and pass out to all employees.

If you have further questions regarding an ICE raid or administrative audit, contact our office and speak with an attorney.

5 Reasons Why It's Already Too Late to File Your H1b Petition

By Jessica Suotmaa 0

While Spring marks the busy federal and state tax season for CPAs and Tax preparers, H1B is the busy season for immigration law firms. The difference is that “File your taxes with us!” ads don’t start coming out till February-March when companies big and small begin aggressively marketing their clever tax preparation services; yet by March law firms have already begun their H1B preparations. So if you haven’t finished negotiations with your company and you haven’t retained a lawyer yet, it may be too late for you. Here’s why:

1. Are you ready to file on April 3rd, 2018?

H1B petitions are not accepted before April 3rd, but they may not be accepted after April 3rd either, since the USCIS annual quota (85,000) can potentially be reached the same day. Last year, and in the last three years, the H1B cap was reached by April 7th, less than a week since accepting petitions on April 2nd. Therefore, it is crucial that attorneys prepare H1B petitions promptly and file on April 3rd, 2018.

2. Do you want an attorney to prepare/review/file your petition?

Some of you may think this means you have plenty of time left.  After all, many of you complete your own paperwork at home and believe it is sufficient. However, keep in mind that finding a last minute attorney, or providing all your documentations last minute to an attorney is ill-advised given that you are not an attorney’s only client. Like with any law firm, attorneys have a roster of clients and cases they are working on and have to plan and manage their time wisely to meet all deadlines. When you spring your case on them last minute, if they are even willing to accept your case, they will charge you for the sacrifices they must make to meet your deadlines.

3. Did you already receive your DOL certification?

In addition, while it typically only takes a week to obtain a labor certification (LCA) from the Department of Labor (DOL), the processing times increase with the number of pending applications, often doubling or even tripling wait times. Generally, attorneys expect to have the LCA filed by mid-March, if not earlier.

4. Does your company have all the documents requested on hand?

Finally, the employer’s company organization, HR, and overall preparedness play a large part in the H1B preparation process, given that many of the required documents need to be prepared (a certain way) by the employer.  The H1B recipient usually has very little control of what has already been prepared and if not ready, then when the required documents can be provided. Hence, the necessity to begin the process as early as January.

5. Did you know USCIS no longer accepts premium processing?

Be careful in submitting your H1B petitions as USCIS will reject your petition if filed or paid for incorrectly.  USCIS has suspended premium processing (I-907). Any petition filed with a combined check payment for regular and premium processing will be rejected.