This week the Department of Labor issued a decision finding an employer liable for $1 million in back pay and $100,000 in civil fines for various labor condition application violations. We thought it would be appropriate to run an article on the requirements of the labor condition application (LCA).
The requirement of a LCA was imposed by the 1990 Immigration Act. It serves two related purposes – ensuring that US wages are not depressed by the hiring of foreign labor and that foreign workers are not exploited. The employer makes specific representations regarding the conditions under which the foreign worker was hired and will be employed. These attestations are as follows:
· The employer will pay the required wage, which is the greater of the prevailing wage or the actual wage paid to other employees in the same position
· The employment of H-1B workers will not adversely effect the working conditions of US workers
· When the LCA was filed, there was no strike, lockout or other work stoppage because of a labor dispute
· The H-1B worker will be given a copy of the LCA, and the employer has notified the bargaining representative if the job is unionized, or if not, has posted in a conspicuous place notice that an LCA was filed.
A few new requirements were added in 1998, when the annual H-1B cap was raised. However, these requirements apply only to “H-1B dependent” employers, a concept also created in 1998. Whether an employer is H-1B dependent depends on the following guidelines:
· If the employer has over 50 employees, the employer is H-1B dependent if at least 15% of the workforce is comprised of H-1B visa holders
· If the employer has 26-50 employees, the employer is H-1B dependent if it employs more than 12 H-1B workers
· If the employer has 25 or fewer employees, the employer is H-1B dependent if it employs more than seven H-1B workers
While in most cases the new requirements apply only to H-1B dependent employers, they also apply to employers who have been found to have committed a willful failure or misrepresentation with regard to any attestation made on the LCA. Also, H-1B dependent employers are not subject to the new requirements when they are filing an LCA that covers only “exempt” H-1B workers. Exempt workers are those who are paid at least $60,000 annually or who have obtained a master’s degree or higher in a field related to the intended employment. If the employer is H-1B dependent, it must comply with these requirements:
· The employer must attest (swear under oath) that it has not and will not “displace” a US worker during the period from 90 days before the H-1B petition is filed until 90 days after it has been filed.
· The employer must attest that it has taken “good faith steps” to recruit US workers for the job, and that they have offered it to any US worker who applied that was at least as qualified as the H-1B nonimmigrant.
Once the LCA has been filled in, it is submitted to the Department of Labor (DOL). Under the 1990 law, the DOL is supposed to certify the LCA within seven days of submission, but there is little way to enforce this. The reality is that even with a new automated faxback system, the Department of Labor still frequently takes more (sometimes much more) than seven days to certify an LCA.
Within one business day of filing the LCA, the employer must establish a public access file that may be viewed by any person. This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage, including its source, whether the state or a private survey is used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed.
In addition, the employer must keep other information that need not be made available to the public. This includes payroll data for all employees in the same occupations as the H-1B worker, a calculation of the actual wage paid the H-1B worker, the raw data behind the prevailing wage determination, documentation of any fringe benefits provided workers, and evidence that the H-1B worker has been given a copy of the LCA.
Once approved, an LCA is valid for three years.