An employer wishing to hire H-1B workers is first required to obtain certification of a labor condition application (LCA) from the Department of Labor (DOL). A certified LCA, or proof of LCA filing, must be submitted by the employer with the H-1B petition sent to USCIS, or the petition will be promptly denied. The purpose of the LCA is specifically to protect U.S. workers by ensuring that the wages and working conditions of U.S. workers are not negatively affected by the employment of H-1B workers. This, in turn, protects the H-1B workers from being exploited by an employer who would seek out foreign workers and pay them substandard wages or impose inadequate working conditions on them. In an effort to achieve both of these goals, the LCA has a number of attestations that an employer must make before the DOL.
An employer must attest that it will pay the H-1B worker the required wage. This wage must be the greater of the actual wage level being paid to the employer’s other workers with similar experience and qualifications for that specific employment, or the prevailing wage level for that employment in the intended geographic area. Even if the employer pays a lower rate to its U.S. workers, if the prevailing wage is higher, then the H-1B worker must receive the higher wage. This required wage can be determined by union contracts, a State Workforce Agency (SWA) determination, an independent authoritative wage survey, an employer’s own wage survey, or some other accepted source of prevailing wage determination.
An employer must attest that it will offer the same benefits package on the same basis for both the U.S. workers and H-1B workers who are similarly situated. The criteria for eligibility and participation must also be the same for all similarly situated workers. H-1B workers, for example, cannot be denied benefits because they are referred to as temporary workers. While the employer must identify the benefit packages provided to its workers and offer the same packages to similar workers, there are obvious distinctions which can be fairly made such as full-time or part-time, and professional, nonprofessional, or management positions. The focus should be on the employer making a good faith offer of benefits along with an actual receipt of benefits by the H-1B worker.
An employer must attest that the employment of H-1B workers will not adversely affect the working conditions of similarly employed workers in the intended geographic area of employment. Working conditions can include hours, shifts, vacation periods, and benefits such as seniority-based preferences for training programs and work schedules.
An employer must attest that proper notice has been given to workers in the occupational classifications identified on the LCA at the place of employment. Proper notice can be achieved by notifying the appropriate bargaining representative in regards to the filing, but since H-1B positions are not often unionized, it is typically necessary to provide notice through physical or electronic postings. Physical postings must be placed in at least two conspicuous places where the worker will actually be and electronic postings can be placed by any means ordinarily used to communicate job vacancies or promotion opportunities. Both types of postings must remain posted and visible for ten consecutive work days, and must be posted within the 30-day period before the LCA is filed. If employees are provided with individual notice, such as by email, this notification is sufficient as long as it is within the 30-day period prior to the filing. A copy of the LCA must be provided to each H-1B worker employed pursuant to the LCA.
An employer must attest that, at the time of filing the LCA, there is no strike, lockout, or work stoppage surrounding a labor dispute in the occupational classification at the intended workplace. There is no specific preparation or documentation needed to support this attestation, but if a complaint is filed, the employer has the burden of disproving the occurrence of such activity.
In addition to these attestations, some employers will be required to make additional ones if they are H-1B dependent or if they have committed certain violations which have labeled them willful violators. Employers who are not required to make these additional attestations in spite of falling into either of these categories, are employers whose H-1B workers will receive a salary of at least $60,000 or whose H-1B workers have at least a master’s degree in the relevant field. All other employers in these categories must attest that they have not displaced a U.S. worker during the period beginning 90 days before an H-1B petition filing and ending 90 days after that filing, that they have taken good faith steps in order to recruit U.S. workers, and that they have offered the job to any U.S. applicant who was equally or better qualified than the intended H-1B worker.
The employer is also required to create and maintain a public inspection file within one day of the LCA filing. Included within this file must be a copy of the signed LCA form certified by the DOL along with cover pages, a statement of the actual rate of pay, the prevailing wage determination, the actual wage memorandum, evidence of the posting or notification, the benefits package memorandum, a statement on the assumption of LCA obligations (in restructuring cases), a list of entities included as part of “single employer” (when DOL definition of “single employer” is used to determine H-1B dependency), a list of exempt H-1B nonimmigrant (when employer claims it will employ only such workers), and the recruitment memorandum (applicable to employers subject to displacement and recruitment attestations).How to Contact us
All of these parts of the LCA are extremely important. If you have questions about an immigration visa or green card matter, and/or you need help in an immigration process, please contact our immigration attorneys or call The Law Firm of Shihab & Associates Co., LPA at the nearest office close to you to consult with an attorney. Our law firm handles various matters including Green Cards and Permanent Residence, family immigration, immigrant visas, non-immigrant visas, employment visas and H1B visas, Investor Visas, PERM applications, and many more. Please contact us and experience how our law firm can assist you in your immigration matters. Whether you are an employer, an employee or a family member, The Law Firm of Shihab & Associates, Co., LPA has competent, responsive and innovative lawyers who can make your immigration experience pleasant and seamless.