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H-1B Series: The Labor Condition Application - Part 4

by George N. Lester IV

George N. Lester IV The Next Three LCA Attestations

A. "No Adverse Effect on Working Conditions": LCA Attestation #2

In the second Labor Condition Application statement, the employer must affirm that "the employment of H-1B nonimmigrants will not adversely affect the working conditions of workers similarly employed in the area of intended employment."

"Working conditions" under the DOL regulations encompass matters such as "hours, shifts, vacation periods, and benefits such as seniority based preferences for training programs and work schedules." A statutory provision added by ACWIA expands and clarifies that the employer must affirmatively

"offer to an H-1B nonimmigrant, during the nonimmigrant's period of authorized employment, benefits and eligibility for benefits (including the opportunity to participate in health, life, disability, and other insurance plans; the opportunity to participate in retirement and savings plans; and cash bonuses and noncash compensation, such as stock options (whether or not based on performance)) on the same basis, and in accordance with the same criteria, as the employer offers to United States workers."
If there is an investigation or enforcement action by the DOL, the employer will be required to produce documentation establishing that it afforded its H-1B nonimmigrant employees working conditions on the same basis and in accordance with the same criteria as it affords its U.S. workers who are similarly employed."

B. "No Strike or Lockout": LCA Attestation #3

In the third required LCA statement, the employer must affirm that, as of the date of the application, there does not exist any "strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification in the area of intended employment." The regulations explain that "labor disputes for the purpose of this section relate only to those disputes involving employees of the employer working at the place of employment in the occupational classification named in the labor condition application."

There are obligations under this statement which continue during the period of the LCA. First, if a strike or lockout of workers in the same occupation occurs at the place of employment at any time during the validity of the LCA, the employer must provide notice to DOL within three days. It is then barred from using the LCA in support of any H-1B petition filings in the occupational classification at the place of employment "until [DOL] determines that the strike or lockout has ended." In addition, the employer
"may not place, assign, lease, or otherwise contract out an H-1B nonimmigrant, during the entire period of the labor condition application's validity, to any place of employment where there is a strike or lockout in the course of a labor dispute in the same occupational classification as the H-1B nonimmigrant."[1]
Although all employers should be aware of the obligations they face under this provision in the event of a labor dispute, it is of particular concern to employers with unionized professional or technical employees.

There is no requirement for the employer to develop or maintain any special documentation to substantiate the "no strike or lockout" statement. If there is an investigation, however, the employer will have the burden of proof to show that there was no strike or lockout in the course of a labor dispute in the occupation, either at the time the application was filed or during the validity period of the LCA.

C. Notice to Employees of Filing: LCA Attestation #4

In the final Labor Condition Application statement, the employer must affirm that it has provided notice of the filing of the LCA "to the bargaining representative of the employer's employees in the occupational classification" and area of intended employment or, if there is no such bargaining representative, that it has "provided notice of filing in conspicuous locations at the employer's establishment(s) in the area of intended employment." The purpose of this rule is to provide notice to employees that the employer seeks to hire H-1B workers at particular wages and advise them of their right to initiate a complaint with DOL if they feel that hiring of H-1B workers will adversely affect them or that the employer is otherwise not acting in good faith compliance with the LCA obligations. Such notice is not intended to recruit or assess the availability of U.S. workers for the H-lB positions.

The notice to a bargaining representative or to employees through posting must be provided on or within thirty days prior to filing the LCA and must state:
  1. that the employer is filing a labor condition application for H-1B workers,
  2. the number of H-1B nonimmigrants the employer is seeking,
  3. the relevant occupational classification,
  4. the wages offered,
  5. the period of employment,
  6. the location or locations at which the H-1B nonimmigrants will be employed,
  7. that "[c]omplaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor,"
  8. for "H-1B Dependent" and "willful violator" employers in an LCA that is not solely for exempt H-1B nonimmigrants, that the employer agrees to the nondisplacement and recruitment obligations, and that complaints alleging failure in this regard may be addressed to the Department of Justice at a particular address in Washington, D.C.,[2] and
  9. that the actual labor condition application is "available for public inspection at the employer's principal place of business in the U.S., or at the worksite" (if the notice is not in the form of posting an actual copy of the LCA)."
Most employers will not have a collective bargaining representative in the occupation for which H-1B workers are being hired, and thus provide direct notice to workers. The employer may use one of two methods: "hard copy" notice or "electronic" notice. A hard copy notice consists of a physical posting in "two or more conspicuous places ... so that workers in the occupational classification at the place(s) of employment can easily see and read" it. The regulations suggest that appropriate locations would include places where the employer posts other required notices such as wage and hour or occupational safety and health information. The notices must remain posted and visible for a total of ten days. The actual posting may be a copy of the LCA itself, because it contains information sufficient to comply with the notice requirements, or a document the employer creates listing the information above."[3] Similarly, an "electronic notice" may be in a form prepared by the employer containing the information outlined above, or it may simply incorporate a copy of the LCA. An electronic notice may be provided by
"any means [the employer] ordinarily uses to communicate with its workers about job vacancies or promotion opportunities, including through its `home page' or `electronic bulletin board' to employees who have, as a practical matter, direct access to these resources; or through e-mail or an actively circulated electronic message such as the employer's newsletter."
The electronic notice must be available for ten days unless employees are provided individual, direct notice such as by e-mail, in which case it may be provided only once. The notice must be provided to all employees in the occupational classification for which H-1B non-immigrants are sought, at each place of employment where they will be employed.

The notice obligation continues and extends to new worksites within the area of employment listed on the LCA at which the employer may wish to place H-1B nonimmigrants after the LCA has become effective. If an employer places an H-1B nonimmigrant at a worksite that was not contemplated at the time it filed the application, it is required to provide the electronic or hard copy notice at the worksite in the manner described above on or before the date any H-1B nonimmigrant begins work at the new site.

Employers who provide consulting or staffing services or otherwise have occasion to assign an employee to work at a third party's location should be aware that the notice requirement extends to such worksites, typically those of a client, customer, or strategic partner. Hard copy notice, for example, must be posted at each place of employment where any H-1B nonimmigrant will be employed "whether such place of employment is owned or operated by the employer or by some other person or entity." If electronic notice is used it must be provided "to employees in the occupational classification . . . including both employees of the H-1B employer and employees of another person or entity which owns or operates the place of employment. This requirement applies when the employer seeks to place an H-1B worker at a third-party location within the area of employment under an existing LCA, or when the employer places an H-IB employee at a third-party location not covered by an existing LCA for more than the allowed "short term placement" [to be discussed in a later article], and must therefore file a new LCA.

Employers required to arrange notice of the LCA at third party worksites should engage in strategic planning and work with their clients to determine the best manner of complying with the notice obligation to fit their respective business practices and needs and the factual circumstances of the placement. In some cases the preferred method may be a hard copy posting, and in others it may be a form of intranet or other electronic posting that reaches workers at the site. Because electronic notice may be more narrowly directed at only workers "in the occupational classification" at the worksite, in some circumstances the best strategy may be to compile such a targeted list and provide them with direct notification via e-mail, avoiding a generalized, site-wide posting. In any case, employers who anticipate placing workers at third party sites should secure cooperation of their clients in this process, through, for example, including language to require such cooperation in the standard service contract.

The notice of filing of the LCA must be provided within 30 days before the date the LCA is filed with the DOL. The employer may file the LCA as soon as the posting period has commenced rather than waiting ten days for it to conclude.

In a related requirement, the employer must provide a copy of the labor condition application certified by the DOL to the H-1B worker no later than the date on which he or she reports to work.

The employer must retain documentation of its compliance with the notice obligation, such as copies of the dated notice to the collective bargaining representative, or copies of the hard copy or electronic notice with clear notations of the dates when, and locations where, or method by which the notice was posted.

[1] The actual statement which the employer signs on the LCA form reads:
"On the date this application is signed and submitted, there is not a strike, lockout or work stoppage in the course of a labor dispute in the occupation in which H-1B noninunigrants will be employed at the place of employment. If such a strike or lockout occurs after this application is submitted, I will notify ETA within 3 days of the occurrence of such a strike or lockout and the application will not be used in support of petition filings with INS for H-1B nonimmigrants to work in the same occupation at the place of employment until ETA determines the strike or lockout has ceased."

[2] Special additional attestations required of "H-1B dependent" employers will be discussed in the next article in this series.

[3] Note that the LCA regulations formerly provided for posting of "exact copies" of the LCA as a means of notice. The current version of the regulation, published in December 2000, removed the express reference to posting an exact copy, but the preamble to the regulations states that such posting will satisfy the substantive requirements. Just the three-page form itself may be posted, without the nine-page cover instructions, and it may be posted with the three pages stapled together rather than side by side, so long as an employee could readily view each page of the form.

About The Author

George N. Lester IV is of the Immigration Practice Group (the "Group") of the law firm of Foley, Hoag & Eliot LLP. Foley, Hoag & Eliot LLP is a full-service law firm of 200 lawyers in Boston and Washington, D.C. It was the first large law firm in Boston to develop an expertise in business immigration law, and for over thirty years its Group has represented employers in a full range of procedures to obtain temporary or permanent authorization to employ foreign professionals. Mr. Lester has practiced immigration law for ten years, and regularly speaks to business, academic, and professional groups on immigration topics. As part of his regular AILA activities, Mr. Lester meets with officials of the INS Vermont Service Center to discuss H-1B and other liaison topics. He also serves as Treasurer and a Board Member of the Political Asylum/Immigration Representation Project (PAIR) in Boston, and received that organization's Pro Bono Attorney Award for Dedication and Commitment to Human Rights in May 1996. Mr. Lester is a 1989 graduate of Northeastern University School of Law.

This article is the sixteenth in a series by George N. Lester of the Foley Hoag LLP Immigration Practice Group based on a chapter he authored titled "Specialty Occupation Professionals," in the treatise Business Immigration Law: Strategies for Employing Foreign Nationals, edited by Rodney A. Malpert and Amanda Petersen, and appears here with the permission of the publisher. Published by Law Journal Press. Copyrighted by NLP IP Company. All rights reserved. Copies of the complete work may be ordered from Law Journal Press, Book Fulfillment Department, 105 Madison Avenue, New York, New York 10016 or at or by calling 800-537-2128, ext. 9300.

For the latest updates from the Foley Hoag Immigration Practice Group, particularly including weekly Process Time Updates from the Vermont Service Center, click here.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.