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The H-1B Series: Part 4 of 6 (Encore)

by George N. Lester IV

George N. Lester IV The Labor Condition Application

Background and Purpose of the LCA

As a prerequisite to being permitted to hire H-1B foreign personnel, the employer must obtain and submit to INS a certified Labor Condition Application ("LCA") relating to the job from the United States Department of Labor ("DOL"). Filling out and submitting the LCA to the DOL can be procedurally straightforward, but it creates several important and potentially complex legal obligations that the employer should understand.

Congress added the LCA requirement to the H-1B program in the Immigration Act of 1990 ("IMMACT 90"). The basic purpose of the LCA is to protect U.S. workers by guaranteeing that there will be no adverse effect on wages or working conditions caused by the employer's use of H-1B temporary workers. In the LCA the employer makes several attestations relating to pay, working conditions, and notice to U.S. workers that it is hiring foreign personnel. The thrust of these attestations is that the employer may hire H-1B workers only under at least the same pay scale and under the same working conditions for its U.S. workers, or equal to prevailing standards in the area of employment. This prevents the employer from having any incentive to hire foreign workers at lower pay, with fewer benefits, or under other less favorable conditions than a U.S. worker performing the same job. Certain employers make additional attestations relating to nondisplacement and recruitment of U.S. workers.

By requiring that the employer treat H-1B workers no differently than U.S. workers, the LCA process also protects foreign workers from exploitation in this country. Employers will not be able to impose substandard wages or working conditions in an occupation on foreign nationals which are below those of U.S. workers or relevant prevailing standards.

Human resources officials or others who are responsible for an employer's H-1B program must remember that in all matters of salary structure, benefits, advancement opportunities, and other working conditions the employer should use nondiscriminatory "status blind" policies for both H-1B and regular U.S. workers.

Payment of "Required Wage Rate": LCA Attestation #1

In the first LCA statement, the employer affirms that it will pay H-1B nonimmigrants in the specialty occupation the higher of the "actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question" or the "prevailing wage level for the occupational level for the occupational classification in the area of employment" for the period of authorized employment. This is known as the "required wage rate." [1] The required wage also includes an obligation to offer H-1B nonimmigrants benefits and eligibility for benefits provided as compensation for services on the same basis and in accordance with the same criteria as the employer offers to U.S. workers.

Determining the "Actual Wage"

Under the DOL regulations, "[t]he actual wage is the wage rate paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question." In determining the actual wage level, the employer may consider "experience, qualifications, education, job responsibility and function, specialized knowledge, and other legitimate business factors." "Legitimate business factors" are factors "that it is reasonable to conclude are necessary because they conform to recognized principles or can be demonstrated by accepted rules and standards." Where no other employees exist at the place of employment with substantially similar experience and qualifications in the employment, however, the "actual wage" shall simply be the wage paid to the H-1B nonimmigrant by the employer.

The actual wage obligation also requires the employer to provide regular salary reviews or increases to H-1B workers commensurate with the employer's pay system or scale, based on cost-of-living increases, change in market conditions, advancement in the occupation, or other factors. This is consistent with the overall purpose of the LCA to require the employer to treat H-1B workers no differently than U.S. workers in matters of pay and advancement. The required "actual wage" will probably change over time as the H-1B worker builds experience and seniority with the employer. As a result, the employer should review the salaries of H-1B workers at the same time as any annual salary review performed for other employees and make any adjustments necessary to maintain compliance with its "actual wage" attestation.

The employer is also required to retain documentation specifying the basis it used to establish the actual wage. The documentation must show how the wage set for the H-1B employee relates to the wages paid by the employer to all other individuals with similar experience and qualifications for the specific employment at the place of employment. Where adjustments are made in the employer's pay system or scale during the validity period of the LCA, the employer must retain documentation explaining the changes and clearly showing that, after such adjustments, the wages paid to the H-1B employee continue to be at least the greater of the adjusted actual wage or the prevailing wage for the occupation and area of intended employment.

Under this rule, the employer should ensure that it maintains a fair, objective policy for overall salary structure in the company, with provision for regular raises within set ranges based on levels of skills, experience, qualification, and overall comparative achievement. The employer should maintain a written salary structure policy and be prepared to demonstrate that it has at all times fairly and consistently maintained the foreign national's salary within the policy's guidelines.

Determining the "Prevailing Wage"

The "prevailing wage" for the occupation in the intended area of employment must be determined "as of the time of the filing of the [LCA]" based on the "best available information" at that time. Under DOL regulations, the prevailing wage is to be established from one of the following three general sources:

"(i) A wage determination for the occupation and area issued under the Davis-Bacon Act, or the McNamara-O'Hara Service Contract Act."
The Davis-Bacon Act and McNamara-O'Hara Service Contract Act ("SCA") govern wage rates paid to workers in certain specific occupations under contracts issued by the United States or the District of Columbia. These laws require that the DOL determine the prevailing wage for particular positions, and contractors on public projects must then pay at least that wage to workers in those positions. Under the LCA regulations, if an H-1B position is one for which the DOL has established a prevailing wage under the Davis-Bacon or Service Contract Act, then that will be the prevailing wage to which the employer is held for purposes of the LCA.

The Davis-Bacon Act applies by its terms to "laborers and mechanics" in contracts for construction, alteration or repair of public buildings or works, and thus it is unlikely to apply to any H-1B specialty occupation. The NcNamara-O'Hara Service Contract Act, however, applies more broadly to contracts whose "principal purpose ... is to furnish services in the U.S. through the use of service employees," which has given rise to a long list of "service" occupations for which DOL has published prevailing wages under the aegis of the SCA. The list includes several professional positions which arise frequently in H-1B cases such as computer programmer, computer systems analyst, librarian, and paralegal. For computer programmer and computer systems analyst positions, it is actually helpful to have SCA data for comparison because the data is presented in up to four levels, depending on experience. This contrasts with the problematic two-level system of the DOL's "OES" data, discussed below. Information about SCA wages, including the complete list of SCA occupations, is publicly available at
"(ii) A union contract which was negotiated at arms length between a union and the employer, which contains a wage rate applicable to the occupation."
If an H-1B position is unionized and a wage rate has been negotiated at arms length between the union and the employer, then that wage is presumptively established as the accepted prevailing wage. Generally it is infrequent for H-1B specialty occupation positions to be unionized, but it is common in certain settings. Engineering or technical positions in government agencies, utilities and large manufacturers, and attorney or paralegal positions in government and legal services organizations are examples where professional positions may be unionized and subject to collective bargaining. It will be helpful to the petitioning employer to have a prevailing wage set by collective bargaining in situations where such an "agreed" wage is lower than occupational sector-wide wage levels. This would be the case, for example, with attorney positions in government or legal services organizations.
"(iii) If the job opportunity is in an occupation that is not covered by either of the above provisions, the prevailing wage shall be the weighted average rate of wages, that is, the rate of wages to be determined, to the extent feasible, by adding the wages paid to workers similarly employed in the area of intended employment and dividing the total by the number of such workers. Since it is not always feasible to determine such an average rate of wages with exact precision, the wage set forth in the application shall be considered as meeting the prevailing wage standard if it is within 5 percent of the average rate of wages."
If the position is not expressly subject to the Davis-Bacon Act, the Service Contract Act, or a collective bargaining agreement, this provision sets the general guideline for determining the prevailing wage from other sources. For purposes of this guideline, "similarly employed" means "having substantially comparable jobs in the occupational classification in the area of intended employment." If there are no such workers employed by anyone other than the applicant employer in the area of intended employment, then "similarly employed" will mean:
"(A) Having jobs requiring a substantially similar level of skills within the. area of intended employment; or

"(B) If there are no substantially comparable jobs in the area of intended employment, having substantially comparable jobs with employers outside of the area of intended employment."
"Area of intended employment" means "the area within normal commuting distance of the place (address) where the H-1B nonimmigrant is or will be employed. If the place of employment is within a Metropolitan Statistical Area (MSA), any place within the MSA is deemed to be within normal commuting distance of the place of employment."

The DOL regulations then specify three sources where the employer may then obtain the prevailing wage data it uses for the LCA, which the DOL believes to be, "in order of priority, the most accurate and reliable." For a prevailing wage determined from one of these sources, the regulation provides that the employer need only offer 95% of the wage rate to be in compliance. The first of these sources, a "SESA Determination" is described in the following portion of this article, and the other two will be described in the next article.

The "SESA Determination"

First, the employer may apply to the "State Employment Security Agency" or "SESA" in its state, also known as the "State Workforce Agency" ("SWA"), for a "SESA Determination" of the prevailing wage. The procedure will vary from state to state, but generally this involves submitting a form to the SWA with at least the following information about the job:
  • Title,

  • Detailed description of duties,

  • Requirements for the position, including academic degree and any specific experience,

  • Geographic location,

  • Position's supervisor,

  • Whether the position has supervisory duties, and if so, the number and titles of personnel that are supervised by the position, and

  • Proposed salary, although with some SESAs the application may be submitted without the salary as a "blind" request for the prevailing wage to be determined.
The SESA will first determine if the position is one coming within the Davis-Bacon or Service Contract Act data sources, and if so use that data for its determination, as described above. Then no further analysis is needed. When one of these data sources applies the employer must offer 100% of the determined wage rate.

Where neither of those sources applies, the SESA will rely on the "Occupational Employment Statistics" prevailing wage survey program ("OES"), which includes publicly available data from the Bureau of Labor Statistics ("BLS"), a branch of DOL. Under its authority to administer the LCA program, the DOL has required SESAs to use the OES data source for most prevailing wage determinations since January l, 1998, pursuant to a detailed policy memorandum known as General Administration Letter ("G.A.L.") No. 2-98. Under the OES program, the BLS conducts extensive surveys of employers throughout the country to obtain data on wages being paid across a full spectrum of occupations.

Prevailing wage analysis under G.A.L. No. 2-98 begins with a determination of the appropriate occupational classification of a job under the Dictionary of Occupational Titles ("DOT"), and the relevant nine-digit "DOT" code. The SESA will make this determination based on the closest match between the employer's job title and description and the titles and description in the DOT. The DOT was described in more detail in the August 26, 2002 article in this series, and is available on-line at

Then, the DOT code is used to see if the equivalent occupational code exists in the SCA list, in which case the analysis need go no further. Where, as in most instances, there is not an SCA match, then the DOT code is "crosswalked" to a matching "Standard Occupational Code," or "SOC," which are the codes used by the OES prevailing wage database. The "crosswalk" is a function in which every DOT code is assigned to match a corresponding occupational code in a in a newer database of job categories used by BLS known as the O*NET. The actual code number for a job in the O*NET is known as the SOC. The DOT has approximately 12,700 occupational classifications, whereas the O*NET contains a more generalized group of approximately 900 titles. Consequently, there is a fair amount of consolidation in the crosswalk, where varying numbers of ostensibly related DOT titles will link to a more generic SOC classification. A further discussion of O*NET is contained in the August 26, 2002 article in this series, and it is available on-line at

Next, the appropriate match to an "area of intended employment" is determined. OES prevailing wage data assigns most locations to a Metropolitan Statistical Area (MSA) or a Primary Metropolitan Statistical Area (PMSA) in order to implement the regulatory requirement that the area encompass "normal commuting distance." MSAs usually are counties with populations of about 50,000 or more. PMSAs are generally larger, more populous (1 million +) metropolitan areas. Areas that do not come under an MSA or PMSA are characterized as "Balance of State" (BOS) areas. The OES attempts to keep BOS area designations at a size staying within "normal commuting distance." Because these are more sparsely populated areas with lower levels of economic activity, in many cases the BOS will not have sufficient survey response data to establish a prevailing wage in a particular occupation. Then the OES system will use data from a contiguous area, or if necessary, from statewide data.

The final variable to establish under G.A.L. No. 2-98 is the skill level of the job. The SESA will make this determination based on the employer's description of the job duties and the stated position requirements. There are only two levels used in the OES system, "beginning" (Level I) and "fully competent" (Level II).

Level I employees are defined as:
"Beginning level employees who have a basic understanding of the occupation through education or experience. They perform routine or moderately complex tasks that require limited exercise of judgment and provide experience and familiarization with the employer's methods, practices, and programs. They may assist staff performing tasks requiring skills equivalent to a Level II and may perform higher level work for training and developmental purposes. These employees work under close supervision and receive specific instructions on required tasks and results expected. Work is closely monitored and reviewed for accuracy."
Level II employees are defined as:
"Fully competent employees who have sufficient experience in the occupation to plan and conduct work requiring judgment and the independent evaluation, selection, modification and application of standard procedures and techniques. Such employees use advanced skills and diversified knowledge to solve unusual and complex problems. They may supervise or provide direction to staff performing tasks requiring skills equivalent to a Level I. These employees receive only technical guidance and their work is reviewed for application of sound judgment and effectiveness in meeting the establishment's procedures and expectations."
The primary consideration for the Level I/Level II analysis will be which of these definitions the employer's description fits most closely. Thus, the employer should pay careful attention in preparing the job description to the level of independent responsibility and judgment, level of supervision, and nature of skills required. Strategic drafting of the job description is necessary if the employer wishes to convey that a job is entry level, and obtain a Level I prevailing wage designation. The description should include terms such as "use basic understanding of . . . ," "perform range of moderately complex assignments in . . . ," "work under supervision of manager. . . ," etc. There is necessarily an element of judgment in an SESA decision between assigning Level I or Level II, and some SESAs are more flexible than others in applying the distinction.

The stated position requirements are also a major factor in the analysis. A Level I position generally must require no more than the usual minimum entry-level academic requirement in the occupation, usually a bachelor's degree. Depending on the circumstances and the view of the particular SESA, a requirement of one to two years of relevant experience in addition to the academic qualification may also be permissible. Requiring additional experience or an academic degree that is more advanced than the usual entry-level qualification will convert the position into Level II. Under G.A.L. No. 2-98, for example, if a bachelor's degree is the normal minimum requirement for entry into the occupation, any position stating an advanced degree requirement (Masters or Ph.D.) must be assigned to Level II.

However, in certain fields an advanced degree is normally required for entry into the occupation. In those cases a position stating that requirement may be assigned to Level I, provided there are no other requirements contained in the job offer or its components which require Level II skills. Librarian, market research analyst, management consultant, research scientist and attorney are examples of positions which may normally require an advanced degree as an entry-level qualification. Whether an advanced degree is acknowledged to be a usual entry level qualification in an occupation can be determined through the Occupational Outlook Handbook ("OOH"). The OOH was described in more detail in the August 26, 2002 article in this series, and is available on-line at

Finally, on the basis of the "crosswalked" SOC occupational code, the area of employment designation, and the Level I/Level II assignment, the OES database will designate a prevailing wage based on the BLS employer surveys. The database lists most wages both as an hourly figure and as an annual salary. Under G.A.L. No. 2-98 the hourly figure is multiplied by 2080 (40 hours per week x 52 weeks) to determine annual salary for a regular fulltime position. For jobs which are not regular salaried 40 hour positions, the hourly figure may be used as the prevailing wage basis.

The SESA will then issue its determination report to the employer, which will be valid for the employer to use as the stated prevailing wage on an LCA filed with DOL for ninety days. For an LCA filed within that period, the SESA determination provides the employer with a "safe harbor" that establishes compliance with DOL prevailing wage rules for any H-1B worker employed in the job stated on the LCA and paid the stated wage. The DOL will accept the prevailing wage as correct and will not question its validity or investigate any complaint alleging inaccuracy of the SESA determination.

This all may sound like a very mysterious process, with a veritable alphabet soup of databases, code numbering systems, and government publications to understand. However, to its credit DOL has made the OES database available to the public in the "On-line Wage Library" ("OWL" - that's right, still another acronym to remember), found at Very helpful background information on the prevailing wage calculation along with access to all of the "crosswalk" databases is found at

The OES system has been widely criticized by employers for two major perceived flaws. First, allocating wage data between only the two skill levels of "beginning" and "fully competent" fails to reflect the normal progression of skills advancement and pay increases in the professional workplace. The definitions encompass only entry-level, straight out of college positions and senior-level, fully independent, highly experienced employees. There are no mid-level professional descriptions for employees who have worked their way beyond the entry-level years but do not yet function on a completely independent senior level.

In practice, the OES Level I wages are generally perceived to be fair, where the experience and skill that level purports to reflect is discrete and easily defined. Level II wages, however, are perceived as unfair and inaccurate for many mid-level positions, where the level they purport to reflect combines data for everyone having more than a bachelor's degree plus approximately two years' experience, up to persons operating at the most senior levels in a profession who have advanced academic qualifications and ten, twenty, or more years of experience. The actual numbers bear this out: Level II wages reported by the system average 60% or more higher than Level I. It is not realistic to expect that within two to three years of starting in an occupation after college the average worker receives pay increases of 60%, yet the OES data suggests that the employer must indeed pay such amounts. Consequently, employers preparing an LCA for a mid-level position must generally rely on another source to establish the prevailing wage.

The Level I/Level II dichotomy has also been faulted for inconsistent practices in SWA or DOL offices around the country in assigning the Level designation based on job responsibility. In some regions, for example, a seemingly harsh policy had developed that any job which involved work at a client site automatically called for Level II designation, ostensibly because of the level of "independent" responsibility, even where the opportunity is open to persons just graduated from college and is very closely supervised by the employer. Recently, DOL released a Question and Answer formatted memorandum, entitled "Training and Employment Guidance Letter No. 5-02" which addresses some of these inconsistencies and controversial policies in assigning the Level I or Level II skill designations for the purposes of prevailing wage determinations. The memorandum clarifies, for instance, that not all management jobs are per se Level II, on the common sense basis that "there must be entry level managers for there to be experienced managers." Similarly, for a job that involves work at a client or customer site, Level II is "not necessarily" the correct designation, because it is "possible for employers to provide close supervision to employees even if the employees are working offsite."

The other criticism is that in the "crosswalk" between the 12,700 DOT job titles and the 900 SOC job titles, the OES system goes too far in aggregating multiple, at best marginally related or different-level DOT titles into "catch-all," generic categories. The reported wage data in certain titles must therefore be viewed as too general to be of use, and this problem is most obvious in several "remainder" OES categories.[2] In such cases the reported prevailing wage may be higher than realistic, or it may be lower.

The OES system has had the positive benefit that employers now can determine the DOL methodology both because it has been published in G.A.L. No. 2-98 and, more important, because employers may perform research in the OES database in advance in the system through the On-line Wage Library at to determine the likely prevailing wage before beginning the SESA process. In some cases, this will enable the employer to merely use OES data on the LCA and proceed comfortably without actually obtaining a SESA determination, as will be described further in the next article. In other cases, it will quickly alert employers to problems with the offered wage level so that another source of data can be located without losing precious time in the overall LCA and H-1B process.

In a more recent enhancement the OWL now contains SCA data as well as the OES database, so it can be quickly determined if a job is subject to the SCA list, and if so what is the wage under that source.

The OES system also recognizes a special set of wage data for certain types of nonprofit and government employers, where prevailing wages for certain types of positions are typically lower than those for similar positions in the private, for-profit sector. In response to criticism that these employers were unfairly penalized by DOL rules which subjected them to the same prevailing wage criteria as private employers, Congress added the following provision to the H-1B rules in the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA):
"(1) In computing the prevailing wage level for an occupational classification in an area of employment for purposes of [the H1B program] in the case of an employee of -

"(A) an institution of higher education (as defined in section 101(a) of [the Higher Education Act of 1965]), or a related or affiliated nonprofit entity; or

"(B) a nonprofit research organization or a Governmental research organization,

"the prevailing wage level shall only take into account employees at such institutions and organizations in the area of employment."
Thus, when the applicant to SESA for a prevailing wage determination establishes that it is (1) an institution of higher education, (2) a nonprofit entity affiliated with an institution of higher education, (3) a nonprofit research organization, or (4) a governmental research organization, the SESA uses a special OES source known as the "EDC" database which contains only data collected from these types of institutions.[3] Use of the special data applies to all occupations with these types of employers, not just to research positions. The Level I/Level II distinction applies in the same manner as with other OES data.

Finally, G.A.L. No. 2-98 allows employers to furnish wage data themselves to the SESA and request that the SESA make the prevailing wage determination based on that data rather than the OES system." The wage data may be contained in a published wage survey or in a survey that has been conducted by or for the employer. G.A.L. No. 2-98 states that "[the use of such employer-provided wage data is an employer option." However, the employer must provide extensive information about the survey methodology to the SESA, satisfying a strict seven-point set of criteria. The SESA must then make a determination with regard to the adequacy of the data provided and its adherence to these criteria before accepting the data. The G.A.L. specifically warns that, "[i]nformation from employers that consists merely of speculation, subjective impressions, or pleas that it cannot afford to pay the prevailing wage rate determined by the SESA cannot be taken into consideration in making a wage determination."

In practice, SESA acceptance of employer-submitted surveys has been limited or, in some states, virtually nonexistent. In other states a few well-known published surveys have been accepted, but only after extensive persuasion of the SESA and corresponding DOL Regional Office of the survey's compliance with the seven points. Consequently, this means of obtaining prevailing wage determination has been limited.

Most recently, however, the DOL issued a policy memorandum entitled "Prevailing Wage Policy Q's and A's" as part of G.A.L. No.1-00, which provides extensive explanation of the criteria for acceptance of an employer-provided survey and appears to offer a more "user-friendly" tone than G.A.L. No. 2-98. It answers recurring questions that have arisen since release of the earlier memorandum, with a more flexible approach than heretofore. It appears to instruct SESAs to be more open in considering employer-provided surveys."

Briefly, the seven criteria for acceptance of an employer's offered survey are as follows:
  1. The data must have been collected within twenty-four months.
  2. If it is a published survey, it must have been published within twenty-four months.
  3. The survey must reflect the area of intended employment.
  4. The employer job description must adequately match the survey job description.
  5. The survey must include industries that employ workers in the occupation.
  6. The wage determination must be based on an arithmetic mean.
  7. The survey must identify a statistically valid methodology that was used to collect the data.
Extensive discussion of these points is found in the two G.A.L. memoranda.

When the SESA does accept an employer-submitted survey and issue a prevailing wage determination on that basis, the determination is acceptable only that one time for the employer that submits the survey and for the single submitted job. If another employer wishes to use the survey, or the same employer wishes to use it again for another position, it must be resubmitted in a new application.

More on Determining the "Prevailing Wage"

A. The "Independent Authoritative Source"

In lieu of obtaining a SESA prevailing wage determination, the employer may use an "independent authoritative wage source" to establish, on its own, the prevailing wage for the position which it reports on the LCA. An "independent authoritative wage source" means "a professional, business, trade, educational or governmental association, organization, or other similar entity, not owned or controlled by the employer, which has recognized expertise in an occupational field." The DOL regulations state that:
"[A] prevailing wage survey for the occupation in the area of intended employment published by an independent authoritative source shall mean a survey of wages published in a book, newspaper, periodical, loose-leaf service, newsletter, or other similar medium, within the 24-month period immediately preceding the filing of the employer's application. Such survey shall:

"(1) Reflect the average wage paid to workers similarly employed in the area of intended employment;

"(2) Be based upon recently collected data-e.g., within the 24 month period immediately preceding the date of publication of the survey; and

"(3) Represent the latest published prevailing wage finding by the independent authoritative source for the occupation in the area of intended employment.. . ."
These criteria are similar to, but perhaps not quite as stringent as, the seven criteria for SESA acceptance of a private survey published in G.A.L. 2-98 and G.A.L. 1-00.

In practice, a majority of employers do not go through the SESA determination process, and use the "independent authoritative source" approach instead. The SESA process can be exceedingly time-consuming, and lead to complicated discussions with the SESA if it makes a determination the employer wishes to dispute, causing further delay. Using "independent authoritative source" data avoids those problems, and may in fact provide the best reasonable source when the OES data appear to be unfair or unrealistic, as in the case of the mid-level employees described above. However, going forward without a SESA determination deprives the employer of a "safe harbor" from government questioning later due to the failure of the relevant agency to review and specifically approve a prevailing wage for the position.

The "independent authoritative source" approach requires an employer to be very careful in drafting an appropriate job description which (1) accurately reflects the level of skill and experience required for the position and (2) relies only on independent data which it has determined upon good-faith review to comport with the criteria above for the position. The employer must be confident that its choice of data is correct, and be prepared to demonstrate that fact in the event of an audit by DOL. In deciding which approach to take, the employer should carefully weigh the respective risks and benefits.

Three strategies have become common for employers in the "independent authoritative source" approach. First, the employer may furnish the same information it would submit to the SESA for a prevailing wage determination to a private consultant or expert firm that specializes in wage and salary compensation surveys or analysis. Typically, such firms maintain extensive libraries of published wage surveys, and may create and publish such surveys themselves. For a fee they will review the employer's job description, conduct research to find an appropriate match in a published survey, and issue a report to the employer. The report will state the prevailing wage the firm has determined for the job and the basis for the finding, and identify and describe the published survey relied upon. This may be the "safest" of the "independent authoritative source" strategies, because if there is any question later over the stated wage, the employer may establish that it ordered an independent review from the outside firm, and call on the firm to defend the basis for its finding.

Second, the employer may subscribe to or have other access to published wage surveys on its own, and wish to make the determination itself as to an appropriate wage to cite. This avoids the time necessary for the SESA determination and the expense of an expert report. The employer should only proceed on this basis if it is confident in the good-faith correctness of the data choice it has made, and is prepared to defend the choice in any inquiry by DOL.

Third, the employer may conduct a search in the DOL's Online Wage Library ("OWL") and rely on the appropriate OES or SCA wage reported there as an "independent authoritative source" for the prevailing wage it enters on the LCA. This is most useful where the offered salary exceeds the reported Level II wage in the OES database or highest reported SCA wage. As long as the choice of occupational code is correct, it is unlikely DOL would question whether the prevailing wage is met where the employer expressly submits to the highest wage DOL reports for the occupation in its own system. This approach is also appropriate for truly entry-level, closely supervised positions that the employer in good faith believes meet the DOL's Level I criteria." As described in the previous article, the On-line Wage Library is available at

On-line OES data should not be used for positions that do not meet the Level II wage but lie in a middle range of responsibility, skill, and experience requirements, or positions below the Level II wage for which the employer states an advanced degree requirement (except for the positions normally requiring an advanced degree at entry level, as discussed before). For the reasons discussed above, the OES is inappropriate for such positions, and the employer should use another source. If the employer enters Level I data on an LCA for such a position, it will be questioned later for using a prevailing wage for the position that was inappropriately low.

B. Using "Another Legitimate Source of Wage Information"

Finally, the employer may rely on "other legitimate sources of wage data to obtain the prevailing wage." An "other legitimate source survey" must be one which:
"(1) Reflects the weighted average wage paid to workers similarly employed in the area of intended employment;

"(2) Is based on the most recent and accurate information available; and

"(3) Is reasonable and consistent with recognized standards and principles in producing a prevailing wage."
The main distinction between this and the "independent authoritative source survey" is that an "other legitimate source survey" allows the employer to use a nonpublished, private survey which may be conducted by the employer itself or by a survey firm acting on its behalf. The survey must still use established, objective criteria for a legitimate, statistically sound survey.

In practice, it will be time-consuming, expensive, and complicated for the employer to procure a survey of this type on its own. Further, such a survey will be subject to the highest potential level of scrutiny from DOL. The regulations specifically warn that "[t]he employer will be required to demonstrate the legitimacy of the wage in the event of an investigation." For a fee, survey firms-often the same firms that provide expert "independent authoritative source" reports will conduct private surveys for this purpose under contract to an employer. Still, employers are advised to conduct thorough research and determine that all possibilities for use of a published "independent authoritative source" survey have been exhausted before resorting to this option.

If the employer elects to invest in a private survey with an outside firm, it may then wish to submit the survey to the SESA and seek to have it accepted under the criteria of G.A.L. 2-100. If the survey is accepted the employer will then have the "safe harbor" protection of a SESA determination.

C. Required Documentation

Finally, the employer must evidence its compliance with the "required wage" obligation of the LCA by documenting how it established both the "actual wage," i.e., how the wage set for the H-1B nonimmigrant relates to the wages of other employees with similar experience and qualifications for the specific employment in that location, and the "prevailing wage." It must update the actual wage documentation at the time of any wage adjustments. For the prevailing wage, it must retain the SESA determination or union contract, "independent authoritative source" or "other legitimate source" survey, and any underlying supporting documentation." Finally, the employer must keep and make available to the DOL payroll and benefits records of all employees in the job in question at the location in the event of an actual inquiry.

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."[4]
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.,[5] 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."[6] 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.

"Non-Displacement" and Recruitment of U.S. Workers: Additional LCA Attestations for "H-1B Dependent" and "Willful Violator" Employers

Certain employers must make additional attestations relating to "non-displacement" and recruitment of U.S. workers. Employers subject to these requirements are those deemed "H-1B dependent" or found to be "willful violators" during a prior DOL or INS enforcement proceeding. The employer is exempt from these additional attestations, however, if the LCA only supports petitions for H-1B nonimmigrants earning annual salaries of $60,000 or more or holding master's degrees or equivalent qualifications.

A. What Employers Are Subject to the Additional Attestations

ACWIA introduced the concept of "H-1B dependent" status to distinguish those employers with workforces that comprise significant numbers of HIB nonimmigrants, so that those employers would be subject to tougher requirements. H-1B dependence occurs when:

  1. an employer with twenty-five or fewer full-time equivalent employees in the U.S. employs more than seven H-1B nonimmigrants,

  2. an employer with at least twenty-six, but not more than fifty, full-time equivalent employees in the U.S. employs more than twelve H-1B nonimmigrants, and

  3. an employer with fifty-one or more full-time equivalent employees in the U.S. employs a number of H-1B non-immigrants that is at least 15% of the number of such full-time equivalent employees.
The number of "full-time equivalent" employees within a workforce is determined by adding the number of actual full-time employees with a number derived from aggregating the number of part-time employees into a full-time equivalent number. Thus, the calculation is not specific to a particular occupation within the employer's workforce, but is based on the total number of full-time equivalent employees and total number of H-1B nonimmigrant employees, regardless of their positions.

The H-1B dependency calculation may be made in one of two ways: the employer may (1) add the actual hours of part-time employees and divide by its normal full-time hours (i.e., 35 or 40), or (2) count each part-time employee as one-half of a full-time equivalent.

A group of entities treated as a "single employer" under the Internal Revenue Code ("IRC") also is a single employer for purposes of determining H-1B dependency. In this case, the calculation above is based on the total number of full-time equivalent and H-1B employees in the entire group. "Single employer" groups under the IRC include (1) a "controlled group of corporations," such as a "parent-subsidiary controlled group," a "brother-sister controlled group," or a "combined group," (2) "a group of trades or businesses, whether or not incorporated, that are under common control," or (3) an "affiliated service group."

"Willful violator" employers are those against whom a finding of violation. has been entered on or after October 21, 1998 (the date of enactment of ACWIA) by the DOL or INS in an enforcement proceeding related to the H-1B program. In determining such a violation the agency must have found that the employer committed either a willful failure or a misrepresentation of a material fact during the five-year period preceding the filing of the LCA.

B. The "Non-Displacement of U.S. Workers" Attestations

H-1B dependent employers are prohibited from "displacing" U.S. workers within ninety days before and after the filing of an H-1B petition supported by the LCA. Displacement is prohibited regardless of whether it occurs "directly" within its own workforce, or "secondarily" at the worksite of a second employer. As a result, there are two attestations relating to nondisplacement on the LCA:
  1. "Displacement: The employer will not displace any similarly employed U.S. worker within the period beginning 90 days before and ending 90 days after the date of filing a petition for an H-1B nonimmigrant supported by the application.

  2. "Secondary Displacement: The employer will not place any H-1B nonimmigrant employed pursuant to this application with any other employer or at another employer's worksite UNLESS the employer applicant first makes a bona fide inquiry as to whether the employer has displaced or intends to displace a similarly employed U.S. worker within the period beginning 90 days before and ending 90 days after the placement, and the employer applicant has no contrary knowledge."
"Displacement" refers to the "lay off' of a U.S. worker from an "essentially equivalent job" as that held by, or offered to, the H-1B nonimmigrant.

A "lay off" occurs where the employer has caused the loss of the U.S. worker's employment in circumstances other than (1) the discharge for inadequate performance or other cause, (2) a voluntarily departure or retirement of the U.S. worker, (3) where a temporary grant or contract expires, or (4) where the U.S. worker is given a bona fide offer of similar employment at equivalent or higher compensation.

An "essentially equivalent job" involves "essentially the same duties and responsibilities" as the job from which the U.S. worker was laid off, provided that it is located in the same area of employment. The qualifications of the laid-off U.S. worker must also be "substantially equivalent" to the qualifications of the H-1B nonimmigrant. United States workers satisfying these criteria are considered "similarly employed."

The "direct displacement" prohibition is straightforward. The employer may not lay off a U.S. worker from a job that is essentially the equivalent of the job for which the H-1B nonimmigrant is sought within ninety days before or after the filing of any H-1B petition supported by the LCA making the attestation.

In the "secondary displacement" prohibition, the employer may not place an H-1B nonimmigrant with another-- or "secondary" -- employer, at the other employer's worksite, where there exist certain "indicia of an employment relationship" between the other employer and the nonimmigrant, until the H-1B employer has asked the other employer whether within ninety days before and after the placement the other employer has displaced or intends to displace a U.S. worker employed by the other employer, in an essentially equivalent job. The H-1B employer needs to attest that it has made such inquiry and that based on the inquiry it has no knowledge of any such displacement by the secondary employer.

"Indicia of employment" with the secondary employer includes factors such as that the employer (1) has a right to control when, where, and how the H-1B nonimmigrant performs the job, including setting hours and duration of the job, (2) furnishes tools, materials, or equipment to the person, (3) maintains a continuing relationship with the worker, and (4) has a right to provide additional assignments or to discharge the person.

The H-1B employer must use "due diligence" in making and documenting the necessary "secondary displacement" inquiries. DOL regulations suggest that appropriate methods include (1) securing and retaining a written assurance from the other employer that it has not and does not intend to effect such a displacement, (2) preparing and retaining a written memorandum documenting, in detail, the contemporaneous receipt of oral statements from the other employer with such assurances, or (3) including a "secondary displacement clause" in any contract between the H-1B employer and the secondary employer, in which the other employer expressly agrees to a non-displacement obligation. Other more particularized inquiry may be required for due diligence depending on the circumstances.

Regardless of the response the secondary employer provides to the inquiries, if it in fact displaces a U.S. worker during the applicable period, then the H-1B employer will be subject to a finding that it violated the LCA requirements, even if the H-1B employer had no knowledge of the secondary employer's displacement and may have otherwise acted in full compliance with its obligations.

C. The "Recruitment of U.S. Workers" Attestation

An employer subject to this obligation must attest on the LCA form as follows:
"Recruitment and Hiring: Prior to filing any petition for an H1B nonimmigrant pursuant to this application, the employer took or will take good faith steps meeting industry-wide standards to recruit U.S. workers for the job for which the non-immigrant is sought, offering compensation at least as great as required to be offered to the H-1B nonimmigrant. The employer will (has) offered) the job to any U.S. worker who (has) applied and is equally or better qualified than the H-1B nonimmigrant."
Under "industry-wide standards for recruitment" the employer need not use any particular methods or frequency of recruitment activities, and may make its own determination of the appropriate activities through industry sources. The recruitment should, however, "be at a level and through methods and media which are normal, common or prevailing in the industry, including those strategies that have been shown to be successfully used by employers in the industry to recruit U.S. workers." There must be both internal and external recruitment, and some "active" recruitment.

The employer may use "legitimate selection criteria relevant to the job that are normal or customary to the type of job" in screening applicants, provided that the criteria are not applied in a discriminatory manner. The recruitment must be conducted in good faith, and in a manner that does not favor H-1B nonimmigrant applicants. The employer must offer the job to any U.S. worker who applies and is equally or better qualified for the job than the H-1B nonimmigrant.

D. Exemption from the Non-Displacement and Recruitment Attestations

The nondisplacement and recruitment attestations are not required if the LCA is solely for employment of "exempt" H-1B nonimmigrants. An H-1B nonimmigrant is "exempt" if he or she receives annual wages equivalent to $60,000 or more, or has attained a master's degree or higher (or its equivalent) "in a specialty related to the intended employment."

In the "exempt" salary calculation, cash bonuses and similar compensation payments may be included, but only if they are guaranteed. Non-cash benefits such as insurance may not be included.

Clearly, if a foreign national holds a master's degree or higher from a U.S. institution, the foreign national is exempt. Academic degrees from foreign institutions that are accredited or recognized under the laws of the country where the degree was issued must be evaluated to determine that they are the equivalent of U.S. masters' degrees or higher as issued by a U.S. academic institution.[7] Experience and expertise are not equivalent of U.S. masters' degrees for exemptions. Further, the foreign degree must be "in a specialty which is generally accepted in the industry or occupation as an appropriate or necessary credential or skill for the person who undertakes the employment in question.[8]

To claim the exemption, the employer must designate on the LCA that the LCA will be used only to support H-1B petitions for exempt H-1B nonimmigrants. The INS will then determine the worker's exempt status as part of its adjudication of the petition, based on the salary stated and/or evidence of educational credentials.

ACWIA provided a separate exemption from the recruitment attestation for LCAs filed in support of H-1B nonimmigrants who are priority workers, who are defined as persons with extraordinary ability, outstanding professors or researchers, or multinational executives or managers. Usually, persons of extraordinary ability and outstanding professors or researchers will have masters' degrees or higher. Thus, this exemption is of limited use, since most eligible H-1B nonimmigrants qualify for the broader exemption from both the recruitment and non-displacement attestations described above. Further, multinational executives and managers are usually eligible for L-lA status and thus need not be beneficiaries of H-1B petitions.

Completing and Filing the LCA

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.
There is no penalty for specifying more "slots" than the employer ultimately uses, but the number of positions listed should represent the employer's bona fide business need and the employer should have the ability to pay the wages stated.

[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 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.

[8]--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

  1. The LCA may be filed by facsimile to the special DOL telephone number of an automated processing system. Although processing of LCAs using this facsimile system was initially slow, it has improved, and certifications are now issued within two or three business days in most cases.
  2. A special electronic version of the LCA, Form ETA 9035E, may be filed on the Internet at a special, secure DOL website, at This process began in early 2002 and has worked out extremely well, with most LCAs being certified and returned as a computer file within minutes. The certified LCA is printed out and then singed by the applicant's representative.
The electronic LCA is slightly different from the paper LCA. The electronic LCA contains an additional attestation wherein the employer must acknowledge that the submission of the LCA is being made electronically and must agree to be bound by the LCA obligations. Also, employers that file the electronic LCA must sign the LCA upon its return to the employer by the DOL, after certification.

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.

Other Important LCA Issues to Understand: Public Access Files, "No Benching" Rule, Changes in Location and DOL Enforcement

A. Public Access File and Retention of Records

Within one working day after filing the LCA, the employer must make the LCA and certain supporting documentation available for public examination at its principal place of business in the U.S. or at the place of employment, in what is commonly referred to as the "public access" file. The required documentation for the public access file includes:

  1. A copy of the completed labor condition application containing the original signature, including any applications that were submitted to DOL by facsimile transmission.
  2. Documentation which provides the wage rate to be paid the H-1B worker.
  3. "A full, clear explanation of the system that the employer used to set the `actual wage' the employer has paid or will pay workers in the occupation for which the H-1B nonimmigrant is sought, including any periodic increases which the system may provide-e.g., [any] memorandum summarizing the system or a copy of the employer's pay system or scale."
  4. As discussed previously, employers hiring H-1B workers are advised to have a clear, written pay system, with objective criteria against which all workers are measured. This provision requires that such a system be made available to the public as evidence of the employer's compliance with "actual wage" requirements. If the employer does not have such a pay system it must create a memorandum for the public access file.

  5. A copy of the documentation the employer used to establish the "prevailing wage" for the occupation, such as the SESA determination, expert report, or survey information, which must include a "general description of the source and methodology" of the survey.
  6. A copy of documentation indicating that the employer has satisfied the notice of filing requirements, which would include the collective bargaining representative notification or postings.
  7. A summary of the benefits offered to U.S. workers in the same occupational classification as H-1B nonimmigrants, a statement as to how differentiation in benefits is made where not all employees are offered or receive the same benefits, and/or, where applicable, a statement that some or all H-1B nonimmigrants are receiving "home country" benefits.[9]
  8. Where the employer undergoes a change in corporate structure, a sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities, and undertakings under the LCAs filed by the predecessor, together with a list of each affected LCA and its date of certification, and a description of the actual wage system and Employer Identification Number (EIN) of the new entity.
  9. A list of any entities used as part of a "single employer" definition for determination of H-1B dependency status.
  10. Where the employer is H-1B dependent and/or a willful violator and files the LCA only for "exempt" H-1B nonimmigrants, a list of such persons.
  11. Where the employer is H-1B dependent and/or a willful violator and the LCA is not filed for exempt H-1B nonimmigrants, a summary of the recruitment methods used and time frames of recruitment of U.S. workers, or copies of pertinent documents showing this information.

Other categories of documentation need not be made available to the public, but must be retained to provide to an examining officer of the DOL in the event of an investigation or enforcement action. These include payroll records, individual wage data which the employer relied upon in any survey to determine the prevailing wage, and other categories of required documentation to support the employer's compliance with LCA attestations, as described above. Records must be retained throughout the period of the LCA and for one year thereafter.

B. Payment of Required Wage and Prohibition on Nonproductive Status

DOL regulations mandate that the employer pay the required wage "to the employee, cash in hand, free and clear, when due." Both salaried and hourly employees must be paid no less often than monthly.

Once the H-1B worker has entered into employment, the employer is obligated to pay the required wage continuously throughout the nonimmigrant's period of employment. The practice of "benching," or placing an employee in temporary periods of nonproductive status without pay, is prohibited. It is a statutory violation of the required wage obligation for an employer to place the H-1B worker in nonproductive status based on factors such as lack of work, and fail to continue to pay the wage level stated on the LCA and in the H-1B petition. If the LCA and H-1B petition specified that the nonimmigrant would be employed full time, the employer must continuously make full-time wage payments. If the LCA and H-1B petition designated the position as part-time, the employer must continuously pay for the minimum number of hours specified in the petition. If the LCA specified part-time employment and the H-1B petition indicated a range of hours, the employer must pay for at least the average number of hours worked by the employee, not the minimum number of hours in the range. Congress added the "nonproductive" time provisions in ACWIA in 1998 after hearing testimony about alleged widespread practices of "benching" in the computer consulting and staffing industries.

In the case of an H-1B nonimmigrant for whom a petition has been approved but who has not yet begun employment, under the ACWIA statutory provision the employer's obligation to pay the required wage begins no later than thirty days after the worker is admitted to the U.S. in H-1B status pursuant to the petition, or sixty days after the person becomes eligible to work for the employer if he or she is already present in the U.S. at the time of petition approval.

Finally, there will be no violation of the required wage obligation when an H-1B nonimmigrant experiences a period of nonproductive status without pay due to (1) non-work-related factors such as the voluntary request of the nonimmigrant for an absence or (2) circumstances rendering the nonimmigrant unable to work such as maternity leave, illness, or temporary disability. Similarly, an employer such as a school which has an established practice of paying annual salary in disbursements over fewer than twelve months will not violate the required wage obligation, provided the nonimmigrant agrees to the compressed annual salary payments. Finally, wage payment need not be made if there has been a "bona fide termination" of the employment relationship. Whether there has been a "bona fide termination" depends on the circumstances, but regulations suggest that the two factors most important to DOL are whether the employer has (1) notified INS that the employment relationship has been terminated so that the petition is canceled and (2) met any obligation to provide the employee with payment for transportation home.

C. When a New LCA Is Required for a Change in Location

H-1B nonimmigrants often must travel to locations away from their regular worksite for varying periods; occasionally, they are transferred from one location to another on short notice. Such circumstances include attending meetings, training or conferences, providing on-site consultation or support services at a customer's premises, and working as "roving" consultants who work only at customer sites and who regularly change work locations based on the employer's business need. In each case, the H-1B nonimmigrant works at a location that was not contemplated at the time of the original LCA filing.

As a result, employers of H-1B nonimmigrants are limited in how often they can require the H-1B employee to change work locations without obtaining a new LCA covering the new location; ultimately, the employer might need to file a new LCA.

[a]- Place of Employment or Worksite

The terms "place of employment" and "worksite" are interchangeable throughout the LCA regulations. These terms refer to the "physical location where the work actually is performed" by the H-1B nonimmigrant. If an H-1B employee's activities are provided at a new "place of employment," then a new LCA might be required. If, however, the H-1B employee's activities do not create a new "place of employment," then the employer need not file a new LCA. Instead, the employment of the H-1B nonimmigrant continues to be governed by the original LCA. The employer must, however, reimburse the H-1B nonimmigrant for expenses incurred in traveling to the other location on the employer's business.

Close analysis of the regulations is necessary to determine whether a particular H-1B employee is providing services at a new place of employment or whether the activities are covered by the original LCA. This is because the DOL has exempted certain work activities from consideration in the determination of the "place of employment." For example, an H-1B worker who is "stationed and regularly works at one location" may temporarily work at another location for "required developmental activity such as a management conference, a staff seminar, or a formal training course." Under these circumstances, the location will not be a new "place of employment. Note also that no time limit is specified for the developmental activity.

The most significant exemption, for technology businesses, governs "roving" employees. This exemption describes where a "particular worker's job functions" require "frequent changes of location with little time spent at any one location." If the following conditions are met, a location visited by such an H-1B nonimmigrant is not a new "place of employment":

  1. "The nature and duration of the H-1B worker's job functions mandates [sic] his/her short term presence at the location," either where the job is "peripatetic," requiring frequent travel from location to location, or where the job requires the worker to spend most work time at one location but occasionally travel for short periods to work at another location;
  2. The H-1B worker's travel to the location from the home worksite is on a "casual, short-term basis," which can be "recurring but not excessive," with the duration of visits not exceeding five consecutive workdays for any one visit by a peripatetic worker, or ten consecutive workdays for any one visit by the occasional traveler; and
  3. The H-1B nonimmigrant is not at the location to perform services in an occupation where workers are on strike or in lock-out.

The regulations provide several examples of "non-worksite" and "worksite" locations based on these principles. A "computer engineer sent out to customer locations to 'troubleshoot' complaints about software malfunctions" or an "auditor providing advice or conducting reviews at customer facilities" are examples of employees at non-worksite locations. In contrast, a "computer engineer who works on projects or accounts at different locations for weeks or months at a time" or an "auditor who works for extended periods at the customer's offices" are examples of an employee working at a new "place of employment."

[b]- Area of Intended Employment

If the H-1B worker's activities create a new "place of employment," the next question is whether the worksite is in a different "area of intended employment" from that specified on the original LCA.

LCAs are valid for any location within the Metropolitan Statistical Area ("MSA") or Primary Metropolitan Statistical Area ("PMSA") in which the place of employment stated on the LCA is located, or within "normal commuting distance" of the location. Thus, for example, if an LCA states that the H-1B employee's place of employment is a particular suburb of Boston, Massachusetts, then the LCA would cover (1) all locations within the MA/NH PMSA (# 1120 in the OES Area Code lookup system, see the Quick Search function) and (2) any other locations within a normal commuting distance.

If the H-1B employee's new place of employment is within the "area of intended employment" of the original LCA, then a new LCA is not needed. The employer, however, must provide notice of the LCA at the new worksite by hard copy posting or electronic notification to workers in the occupation at the worksite.

If the new "place of employment" is outside the "area of intended employment" listed on the original LCA, then the H-1B employee's assignment to the new "place of employment" may be made as a "short-term placement" subject to the requirements described in the next section, but beyond that the employer must obtain a new LCA to cover the new area of intended employment.

[c]- Short-Term Placement

An employer may make "short-term placement(s) or assignment(s)" of H-1B nonimmigrants to new places of employment in areas of intended employment not listed on the original LCA without filing a new LCA. Short-term placements may occur only under certain conditions for strictly limited periods, and only if:

  1. The employer has satisfied all obligations under the existing LCA covering the H-1B worker in the original area of employment;
  2. There is no strike or lockout at the new worksite in the occupational classification of the H-1B nonimmigrant; and
  3. The employer continues to pay the required wage based on the original LCA and also pays all lodging, travel, meals, and incidental or miscellaneous expenses associated with the H-1B nonimmigrant's stay at the new location, for both workdays and non-workdays.

The employer's "short term placement" of any one H-1B non-immigrant at any worksite or combination of worksites in a new "area of employment" may not exceed thirty workdays in a one-year period, or, under certain circumstances, sixty workdays.

The term "workday" means any day on which an H-1B nonimmigrant performs any work at any worksite within the area of employment of the short-term placement. Workdays counted toward the limit may be nonconsecutive, and may be at different specific worksites within the area of employment. Weekend, holiday, or other non-workdays do not count, even if the H-1B nonimmigrant spends them in the area of the short-term placement. Thus, the thirty-workday limit would typically be about six weeks.

To qualify for a sixty-day "short-term placement," the employer must be able to show that the H-1B nonimmigrant maintains an office or work station at his/her permanent worksite, spends a "substantial amount of time" at the permanent worksite in a one-year period, and has his or her U.S. residence or place of abode in the area of the permanent worksite and not in the area of the short-term worksite.

If the employer already has a certified LCA for the occupational classification in the new area of employment, it may not use the "short-term placement" option. Instead, it must use its existing LCA, assigning the H-1B worker to an open "slot." If there is no open slot, the employer may wish to meet the notice, wage, and other obligations under the existing LCA for the H-1B nonimmigrant being placed in the area of employment, and promptly take steps to file a new LCA. Making the placement will then result in temporary "overcrowding" of slots on the existing LCA until the new one is approved. However, the DOL has expressly stated a willingness to accommodate the "overcrowding" problem for employers having a business need to quickly move an H-1B employee and wishing to use an existing LCA. It has indicated that it will use a "rule of reason in assessing such situations; violations will not be cited as long as the employer is showing good faith and taking steps to come into compliance."

The employer may not make a "short-term placement" for an H-1B nonimmigrant's initial assignment with the employer. An H-1B nonimmigrant entering the U.S. must first be placed at a regular worksite identified on the certified LCA used to support the H-1B petition.

Once an H-IB nonimmigrant has reached the aggregate annual limit of "short-term placement" workdays in an area of employment, the employer may no longer employ the person there except under a certified LCA. As a practical matter, then, the employer should determine as early as possible after the H-1B nonimmigrant is placed in a new area if it will need the person's services there for longer than the short-term placement limit, either on the project to which he or she is then assigned or on a later project in the same area, and if so file a new LCA in sufficient time so that it is certified before the time limit is reached.

[12]- Enforcement and Penalties

Any "aggrieved person" may file a complaint with the DOL alleging that an employer has failed to meet a condition stated on the LCA or that the employer made a misrepresentation of material fact on such an application. An aggrieved party means any person or entity whose "operations or interests" are adversely affected by an employer's alleged noncompliance with the LCA, including a worker who alleges that his or pay or working conditions have been adversely affected, a bargaining representative, a competitor, or a government agency. DOL will investigate and after providing the employer with an opportunity to be heard, will determine whether it should issue a finding that a violation has taken place and assess appropriate sanctions and penalties.

The statute and regulations provide several forms of penalty or sanction, depending on the nature of the violation. These include assessment of back wages for violation of a condition related to payment of the required wage. The DOL can also assess monetary fines and other civil penalties, and can bar the employer from receiving approvals of H-1B petitions for periods of time. For nonwillful violations, the DOL can issues fines of up to $1000 per violation and bar the employer from the H-1B program for one year. For "willful" failure to meet an LCA condition or a misrepresentation, the DOL can fine up to $5000 per violation and bar the employer from the H-1B program for two years. For such "willful" violations where in the course of the violation the employer displaced a U.S. worker, the DOL can fine up to $35,000 per violation and bar the employer from the H-1B program for three years.

[1] The actual statement the employer must sign on the form reads, "H-1B nonimmigrants will be paid at least the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question or the prevailing wage level for the occupation in the area of employment, whichever is higher." (emphasis by DOL on LCA form).

[2] One in particular, a classification for "All Other Professional, Paraprofessional and Technical Workers Not Classified Separately," combines forty-three DOT titles into one data set. Under this category a technical translator will be assigned the same prevailing wage as a crossword puzzle maker, circus agent, taxidermist, and fireworks display specialist. It will also be assigned the same wage as a director of translation, certainly a related position but one where the wage should be higher because a director of translation would normally supervise a technical translator.

[3] The main OES source for all other employers is known as the "ALC" database. Further explanation is contained in a pair of DOL policy memoranda which instruct the SESAs on implementation of the separate data sets: G.A.L. No. 2-99 (Apr. 23, 1999) and G.A.L. No. 1-00 (May 16, 2000).

[4] 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."

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

[6] 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.

[7] See the September 16, 2002 article in this series for a discussion of foreign degree equivalence.

[8] For comparison, see the September 23, 2002 article in this series for a discussion of the general requirement for H-1B classification that a degree be directly related to the occupation.

[9] Where an employer is part of a multinational corporate operation and employs H-1B nonimmigrants in the U.S. while on a foreign payroll, under certain circumstances it may maintain the person on benefits provided in his or her home country.

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 a consolidated reprint of Articles 13-19 which originally appeared in the beginning of each week's issue as of the October 15, 2002 issue of Immigration Daily and is based on a chapter George N. Lester 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.

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