H-1B Series: The Labor Condition Application - Part 6
The LCA requires several categories of information in addition to the employer's attestations. The employer should be aware of two strategies in preparing this information which can permit the use of the LCA in connection with later H-1B petitions, or avoid problems in the event business needs require changes in employment of H-1B persons covered by the LCA. These strategies include the "multiple position" and "multiple location" strategies.
[a]-Occupation Code and Job Title
First, the application must specify a three-digit occupational code derived from the DOT classification and the employer's own job title. The job title should reflect, in a straightforward manner, the occupational category and professional nature of the position. The employer should anticipate any changes that may occur in specific duties or projects over the period of the LCA and designate a title which encompasses flexibility so long as the position remains within the general occupational classification.
[b]-Full-Time or Part-Time
Next the employer must indicate whether position openings included in the LCA will be full-time or part-time. The regulations provide that the position or positions covered by the LCA may be full-time or part-time, but that full-time and part-time positions may not be combined on a single LCA. If the employer checks "part-time" in the box next to the job title and then enters the wage in hourly terms, it will retain flexibility to employ H-1B workers under the LCA with varying numbers of hours, within the range specified on the Form I-129 petition filed with the INS.
[c]-Number of Openings and "Multiple Position" Strategy
Third, the employer enters the number of H-1B nonimmigrant workers sought in the application. An LCA can cover any number of positions in an occupational classification that an employer realistically thinks it may wish to offer to H-1B professionals. Once the LCA is certified, it can then be used to support repeated H-1B petitions filed at any time during its validity until all the "slots" designated on the LCA have been exhausted. The primary advantage of this approach is that having the LCA in hand can expedite filing of subsequent INS petitions. If the employer is certain that it only wishes to use the LCA for one H-1B petition, then it should only enter the number "l." If not, it should enter a number that it anticipates will cover upcoming hiring needs. In the past many employers have used this "multiple positions" LCA strategy, and file LCAs designed to cover six months to one year of projected hiring, with up to fifty or more positions specified as the potential number of H-1B nonimmigrants, although due to changing hiring patterns in the current economy and a new system of filing the LCA which provide for rapid response from DOL this is less common.
[d]-Rate of Pay and Prevailing Wage
Next, the employer specifies the rate of pay offered in the position, which may be expressed on an "hourly, weekly, biweekly, monthly or annual basis. If the employer will be using the LCA for part-time positions or positions with varying numbers of hours per week, it should express the pay in hourly terms. Otherwise, any increment is acceptable, although most employers will state an annualized salary. The employer also may express the pay in a range rather than a fixed amount. When using a range, the stated low end must meet the prevailing wage for the occupation. The high end of the range should realistically stay within the level of the position in the employer's pay system. The amount actually offered to the foreign national may be anywhere in the range.
The employer must then specify the prevailing wage and its source. If the employer has an SESA determination it must check a box to so indicate. Otherwise it must identify with specificity the "independent authoritative source" or "other legitimate source" data it has used. This could mean entering the name of a published survey. Users of OES data retrieved on line may state "OES Wage Survey" or "ETA ALC Data Center.
[e]--Period of Employment
The "period of employment" is fairly straightforward. The employer should enter the start date when it realistically needs the H-1B workers' services to commence, and may enter a total period up to three years.
[f]--Place of Employment and "Multiple Location" Strategy
Finally, there are important considerations in how the employer enters the "location where H-1B nonimmigrants will work. If the employer has one office the response is straightforward-it will be the city and state of the office location. Employers who contemplate hiring H-1B workers at more than one location, have multiple worksites, or assign employees to work at multiple customer or client locations may specify a second place of employment listed on the LCA. The LCA will then be usable for H-1B foreign nationals to begin work at either of the specified locations, and to transfer between them.
In any such transfer the employer must pay the "required wage rate" at the new location, which is the higher of the prevailing or actual wage.
As a practical matter, the "multiple location" strategy is now limited by the LCA form, which contains space for only two locations. Prior versions of the LCA permitted any number of locations to be listed using an addendum. Consulting companies and other employers who assign H-1B workers among multiple possible locations find the new LCA burdensome because it no longer enables them to obtain LCA certification for three or more locations simultaneously. Instead, such an employer must file large numbers of separate LCAs to secure certification for multiple locations, or set up systems for monitoring employee placements and filing new LCAs as placements occur, subject to the "short term placement" rules to be discussed in the next article. Employers with "roving" H-1B nonimmigrant workers will find the record-keeping requirements of individual LCA filings for each different placement impractical and burdensome.
As a possible solution to this problem, the DOL has proposed the concept of a "national LCA." This would enable free movement of H-1B workers.to any and all worksites anywhere in the country without the need to file new LCAs. If this proposal is implemented it will restore the efficiencies of the former "multiple location" strategy and address the business practicalities of "roving" H-1B employment.
--Filing the LCA
The DOL has a statutory obligation to review the LCA and issue a certification or return the form uncertified within seven working days, but in the past the DOL has been criticized for failing to meet this requirement. In efforts to speed certification, the DOL now has implemented two special centralized filing procedures for the LCA. Information on both of them can be accessed at http://workforcesecurity.doleta.gov/foreign/.
In all cases, the DOL's review of the LCA is limited to whether the form is properly completed or contains obvious inaccuracies. They do not inquire into substantive appropriateness of the prevailing wage or other representations in response to the filing, but will inquire into the representations upon a complaint and investigation.
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 seventeenth 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 www.lawcatalog.com or by calling 800-537-2128, ext. 9300.
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