Tax Planning For Temporary Non Residents In 2013/2014

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Before April , employers were allowed to pay the Level 1, 17th percentile wage, which led to large wage savings for employers hiring H-2B workers instead of U. But on April 24, , the DHS and DOL issued a joint interim final rule IFR that was effective on the day it was published, 27 which eliminated the four-tiered wage methodology, and modified the regulation to require that:. If the job opportunity is not covered by a CBA, the prevailing wage for labor certification purposes shall be the arithmetic mean, except as provided in paragraph b 4 of this section, of the wages of workers similarly employed in the area of intended employment.

The main impact of the IFR continuing to allow private wage surveys was that wages certified for H-2B workers in fiscal and did not increase enough to achieve parity with the state and national average OES wages for all workers. This came to light in the CATA v.

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Perez decision in the Third Circuit, which noted in no uncertain terms that H-2B employers responded to the higher prevailing wage requirements in the IFR by substantially increasing the number of private wage surveys they submitted to DOL in order to keep certified H-2B wages low:.

Congress has charged DOL with the duty to ensure that it grants certifications only if they do not adversely affect wages and working conditions of United States workers, and it is the burden of DOL to be mindful of and honor that charge. However, employers increasingly have been submitting private surveys authorized by Section The Wage Guidance therefore establishes criteria contrary to both the letter and spirit of 5 U. Perez decision highlighted the increase in the use of private wage surveys in response to the IFR:. In the 12 months leading up to the March CATA decision striking down the H-2B wage rule, employers seeking labor certification for H-2B visas submitted a total of 49 applications using private surveys to determine the prevailing wage, the court said.

By contrast, employers submitted 1, applications using private surveys in the nine months between July 1, , and March 31, —a 3, percent increase. As the data revealed in the CATA v. Perez decision and reported by Bloomberg show, a significant number of employers began to request that DOL approve their submitted private wage surveys—by an increase of 3, percent soon after promulgation of the IFR—and in The aforementioned wage differential between the average OES wage and the average certified H-2B wage for Landscaping and Groundskeeping workers in fiscal is almost entirely explained by the new and increased use of private wage surveys by landscaping employers after promulgation of the IFR.

Landscaping employers:. DOL approved This is clear evidence that the shift to the use of private wage surveys was a systematic response by H-2B employers to keep H-2B wages lower than the local average OES wage rate that would otherwise be required under the IFR. American workers are also hurt because when H-2B workers have few rights and employers are allowed to legally underpay them, it puts downward pressure on the wages and working conditions of American workers who are employed or seeking work in the main H-2B occupations.

The low wages H-2B workers are paid, combined with the indentured nature of their relationship to their employers, is also why employers prefer to hire H-2B workers instead of American workers. The H-2B program therefore undercuts the incentive that employers in a free market should have have to hire American workers or to make jobs more appealing to American workers by improving wages and working conditions. This was recently documented and explained in a December news report , which found that in the H-2B and H-2A programs:. When workers do find out, they are discouraged from applying. And if, against all odds, Americans actually get hired, they often are treated worse and paid less than foreign workers doing the same job, in order to drive the Americans to quit.

The April H-2B regulations promulgated by the Obama administration were an attempt by the administration to remedy many of the deficiencies that are readily apparent in the H-2B recruitment requirements, but many of the key aspects of the new rules were nullified by the fiscal appropriations riders on H-2B which are currently in effect. For further discussion see section VI. My report on H-2B published in January of this year provides much more detail about the wages, employment, and unemployment in the top H-2B occupations, through fiscal We have also looked at wage growth and unemployment in the top 15 H-2B occupations through Please note that these are preliminary findings that will be updated and published at a later date.

Wages in virtually all of the top 15 H-2B occupations have remained flat from to , and wages declined in over half of the top See Table 5.

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Department of Labor. As Figure B shows, unemployment remained high in almost all of the top 15 H-2B occupations during the period. The top occupation of Landscaping and Groundskeeping Workers had an unemployment rate of 11 percent in ——more than double the national unemployment rate in Seven of the occupations were at or above double digits.

Only three of the top 15 H-2B occupations had an unemployment rate lower than 7 percent: Butchers and other meat, poultry, and fish processing workers; 36 Nonfarm animal caretakers; and Athletes, coaches, umpires, and related workers. Such high unemployment rates combined with flat or declining wage growth suggest—rather than labor shortages in H-2B occupations—that there instead exists a continuing loose labor market in for the top 15 H-2B occupations.

With this backdrop, I will turn briefly to the April H-2B regulations promulgated by the Obama administration.

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The April 29, , rule is similar to the IFR in its requirement that employers pay their H-2B workers the OES average wage unless the job is covered by a collective bargaining agreement. It differs by prohibiting employers from choosing the Davis Bacon or Service Contract Act wage rates as a source for the prevailing wage unless the work performed by the H-2B worker is covered by a government contract.

The April 29, , wage rule also puts additional restrictions on the use of employer-provided wage surveys; wage data sources other than the OES will be considered for the purpose of establishing an H-2B prevailing wage only if the survey falls into one of the following categories:. If the survey falls into one of these categories, then additional methodological requirements for the survey are listed in the remaining subsections of 20 C.

The wage rule has some obvious flaws, however, which could lead to results similar to past years when H-2B wages were mostly certified at below-average wages. While 20 C. Nevertheless, the wage rule held the possibility of improving H-2B wage rates by restricting the use of private wage surveys.

Some data are now available to measure the impact of the H-2B wage rule. What Table 6 shows is that H-2B employers still saw significant wage savings by hiring H-2B workers instead of Americans or other qualified U. Although the wage rule was only in place for half of the fiscal year, these data are preliminary evidence that the H-2B wage rule was beginning to have its intended impact of raising H-2B wage rates closer to the the average wage by restricting the use of private wage surveys.

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If H-2B employers began to see wage rates increase as a result of the wage rule, it is reasonable to conclude that fact is what led to the lobbying effort to amend the wage rule and lower H-2B wage rates through the appropriations legislation. This section will discuss the substance and possible impacts of the main provisions from the fiscal appropriations riders that became law in late After the IFR had been in force for just a few months, a set of legislative riders were included in the Consolidated Appropriations Act of 39 an omnibus bill to fund the government during fiscal , which made a number of changes to the H-2B program, and the bill was eventually signed into law in December Some of the appropriations riders were targeted at the new worker protections extended to migrant and American workers by the IFR.

Substance: The substance of the amendment that affects the H-2B wage rule is found in Section , and requires that:. The determination of prevailing wage for the purposes of the H-2B program shall be the greater of— 1 the actual wage level paid by the employer to other employees with similar experience and qualifications for such position in the same location; or 2 the prevailing wage level for the occupational classification of the position in the geographic area in which the H-2B nonimmigrant will be employed, based on the best information available at the time of filing the petition.

In the determination of prevailing wage for the purposes of the H-2B program, the Secretary [of Labor] shall accept private wage surveys even in instances where Occupational Employment Statistics survey data are available unless the Secretary determines that the methodology and data in the provided survey are not statistically supported 40 [emphasis added].

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As a result, employers will likely be permitted to use private wage surveys in a much broader range of circumstances, and this may result in H-2B workers being paid wages that are below the OES local average wage for their jobs. So far DOL has only given a preliminary indication of how it will interpret, implement, and enforce some of the December amendments to the H-2B program in the Consolidated Appropriations Act of DOL has also not yet indicated whether it will publish new regulations to implement these changes, either as an interim final rule or as a regulation that is subject to notice and comment procedures under the Administrative Procedure Act.

Impact: It is likely that many fiscal H-2B prevailing wage determination applications had already been submitted before the appropriation rider authorization to broaden the use of employer wage surveys had become law. As a result, it is likely that the survey rider may not have a large impact on H-2B wage rates. However, since February the DOL has been increasingly accepting employer-provided wage surveys. It follows that if employers anticipate as of the beginning of fiscal that appropriations language will permit the submission and acceptance of employer-provided wage surveys in lieu of the Bureau of Labor Statistics BLS Occupational Employment Statistics OES wage survey data, then the ability of private wage surveys to push down average H-2B wage rates to below-average wage rates will be very significant.

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  4. This could lead to a large increase in the number of H-2B workers in the United States; as a result of the returning worker exemption, the size of the H-2B program could as much as quadruple. However, previous years in which the returning worker exemption was the law of the land suggest the number of H-2B workers is more likely to double or triple, but ultimately will depend on employer demand. In fiscal for example, the last year the returning worker exemption was in place, nearly , H-2B visas were issued.

    Impact: At present, neither DOL nor the State Department have published the number of H-2B returning workers who have been issued visas for fiscal There exists the possibility that the returning worker exemption from the 66, annual numerical limit which was approved in December for fiscal has not and will not result in a large increase in the number of H-2B workers in fiscal If this were to occur, the likely reason would be that H-2B employers did not have time to prepare to take advantage of the exemption by finding and attempting to hire migrant workers who were employed as H-2B workers in the past three fiscal years. A large increase in the number of H-2B workers is likely to occur if the returning worker exemption is extended for the entire fiscal year and beyond. If H-2B employers are able to anticipate and plan for an exemption from the annual numerical limit when submitting their applications for H-2B labor certification in fiscal , then it is reasonable to conclude that the number of H-2B workers will increase far above the cap, as it did in fiscal — It also requires that H-2B employers offer their corresponding U.

    Impact: Under the appropriations rider language, DOL may not use funds appropriated in fiscal to enforce the rule on corresponding employment. The rule still exists on paper, but DOL may not enforce it, which in practice means that employers will not be sanctioned for violating the corresponding employment rule. That means that employers will be able to offer higher wages and additional benefits to H-2B workers without being required to offer them to American workers.

    It is interesting to note that no senator or representative has publicly articulated the basis for denying U. This rule helps protect H-2B workers from coming to the United States for a temporary job opportunity, only to find that there are not enough work hours available to him or her. Impact: Again, under the appropriations rider language, DOL may not use funds appropriated in fiscal to enforce the three-fourths guarantee. The rule still exists on paper, but DOL may not enforce it, which in practice means that employers will not be sanctioned for failing to offer H-2B workers a minimum number of work hours.

    H-2B workers are greatly harmed when they do not have enough work hours to earn enough to live, save, and pay back the debts incurred to labor recruiters in order to obtain their job. If the employer refuses to comply with the audit or the supervised recruitment, the employer can be debarred from using the H-2B program.

    Nevertheless, when DOL finds that U. But perhaps more importantly, this particular H-2B appropriations rider strikes at the heart of the integrity of the H-2B program. Most of the December amendments to the H-2B program, including the amendment to the wage rule, will remain in place for all of fiscal If no further amendments are made through standalone legislation or appropriations legislation to fund the U. It is my hope that this testimony will shed some light on the data and evidence that exists regarding how the H-2B program is being used.

    While the voices of employers and powerful lobby groups pushing for expansion and deregulation of the H-2B program have gotten a fair amount of attention, low-wage-earning migrant workers and overlooked U.