Roving H-1B Employees: An Employer's Guide To Labor Condition Applications
by D.Ray Mantle
Each spring, the news media brings us reports of how the high-tech and other industries in the United States are struggling to find enough qualified professionals to fill job positions, and how the demand for highly skilled workers has far surpassed both the number of qualified U.S. applicants and the number of foreign professionals who can be employed under the H-1B visa category. With a cap of only 65,000 visa numbers available for new foreign workers each year, employers are racing to prepare for April 1, the first day applications can be filed for the new fiscal year. Trends over the past several years suggest that applications received after April 2 will not even be considered, unless the individual holds a U.S. Master's degree. For those employers lucky enough to win one or more of the coveted H-1B cap workers, or who have existing H-1B workers transfer into their workforce, helping the individual maintain their legal status can be just as tricky.
Any H-1B petition filed with U.S. Citizenship and Immigration Services (USCIS) must be supported by a certification from the U.S. Department of Labor (DOL) covering the employer's ongoing obligations with respect to the H-1B worker. This article provides a brief overview of the employer's obligations under the Labor Condition Application (LCA) and a practical guide to understanding when a new LCA is required for roving employees.
THE LABOR CONDITION APPLICATION
The Labor Condition Application consists of a series of attestations made by the employer regarding the employment conditions of the H-1B worker in respect to other workers. Completing and filing the application is remarkably simple - a few yes/no questions and basic information on wages and work location are provided through an online application system, and the LCA is usually certified within moments. In contrast to the ease and simplicity of the application process, the attestations made by the employer require extensive analysis and preparation before submitting the application. Each H-1B employer filing an LCA must make at least four attestations, each of which carries significant legal obligations. The attached checklist (Appendix A) outlines the basic points associated with these attestations.
By signing the LCA, the employer agrees to pay the H-1B worker the required wage for the entire period of authorized employment. The required wage is based on the geographic area of employment and is either the "actual wage" the employer pays similarly employed individuals in the same occupation for that area, or the "prevailing wage" for the occupation in that area, whichever is higher. The methodology used to determine the "actual wage" for the position must be documented, and can include such factors as experience, qualifications, education, job responsibility and function, specialized knowledge, and other legitimate business factors, subject to recognized principles or accepted standards. If there are other employees with substantially similar qualifications and duties, the "actual wage" is the amount paid to these other workers. The "prevailing wage" is most often the weighted average of wages paid to workers similarly employed in the area of intended employment, unless a collective bargaining agreement provides a different wage rate for the position. In most cases, the Department of Labor's Online Wage Library provides adequate prevailing wage rates, and the employer does not need to incur the expense of subscribing to other published wage surveys.
The employer also agrees to pay the required rate to the employee "cash in hand, free and clear, when due." Authorized deductions may be made, such as payroll taxes and union dues, as well as deductions for health care and other benefits in the same manner as other workers. In fact, employers are required to offer benefits to H-1B workers on the same basis as benefits offered to U.S. workers. Other deductions that may reduce the wage below the required level are carefully regulated by the Department of Labor, and certain other deductions are flatly prohibited.
Employers should also note that they are obligated to pay the H-1B worker the full wage rate, even during nonproductive periods. An employer cannot avoid the wage obligation by benching the H-1B worker. Violations of this, or any of the wage obligations, may result in enforcement action and an assessment of back wages and additional fines.
An employer certifies in the LCA that the working conditions of similarly employed U.S. workers in the same area will not be adversely affected by employing the H-1B worker. This obligation is met by offering the H-1B worker the same working conditions on the same basis and in accordance with the same criteria as those offered to similarly employed U.S. workers.
STRIKES AND LOCKOUTS
An employer cannot file the LCA if a strike or lockout is underway in the occupational classification at the place of employment, nor can an employer transfer a H-1B worker to a location where there is an ongoing strike or lockout involving the same occupation. If a strike or lockout arises after the LCA has been filed, the employer is obligated to notify the Employment and Training Administration of the Department of Labor in writing, who may consult with the union and USCIS.
Within 30 days prior to filing the LCA, an H-1B employer is required to provide notice to employees in the same occupational classification at the worksite. If a collective bargaining agreement is in place, notice must be provided to the collective bargaining representative. In all other cases, notice must be provided either as a physical posting at the worksite or through electronic notification.
If notice is provided through a physical posting, it must be placed in two or more conspicuous places for a total of 10 days. DOL recommends that the notice be posted near other required notices, such as OSHA or wage and hour posters. Another option is to provide electronic notification to workers in the same occupational classification at the worksite (including both employees of the H-1B employer and employees of any other employer at the worksite). If notification is made through an intranet accessible to all workers in the same occupation at the worksite, then it must remain available for 10 days. The employer may also meet the notice requirement by sending an email to each such worker. Regardless of how notice is provided to workers in the same occupation at the worksite, the employer is also required to provide the H-1B worker a copy of the signed LCA on or before the first day of work.
The required contents for the notice are all contained on the LCA, and many employers elect to simply post a copy of the LCA in the appropriate locations for 10 days. If another format is used, the notice must contain the information detailed in the attached checklist (Appendix A), including instructions on how complaints may be filed.
All H-1B employers must also certify on the LCA whether they are H-1B dependent, or if they had previously been found to be a willful violator. A simple test for H-1B dependent employer status is outlined in the attached checklist, and any employer falling under this category will be required to make additional attestations regarding specific recruitment of U.S. workers.
WORKSITES AND TRANSFERS
The LCA program is designed to protect U.S. workers within the same occupation and geographic area as the H-1B worker, as well as to provide adequate protections to the H-1B worker. Although the notice requirements apply to the specific worksite(s) where the H-1B worker will be stationed, only the city and state of the worksite(s) are listed on the LCA. An employer who transfers H-1B workers to different worksites within the cities or geographic areas listed on the LCA may not have to file a new LCA, but the employer is still under the same obligations for the attestations made on the initial LCA with respect to the new work location. For example, if a worker is transferred to a worksite at the other end of town, a new LCA is not required, but the employer must provide notice at the new worksite as outlined above.
TEMPORARY TRANSFERS TO NON-WORKSITES
Determining whether a new LCA is required for a location depends on whether it meets the definition of "worksite" under the DOL regulations. A temporary transfer to an off-site location may qualify as a "non-worksite," and not require a new LCA or notice, if it falls under any of the following three categories:
1 Immigration and Nationality Act § 214(g). The annual visa cap includes 65,000 new H-1B applicants, plus 20,000 visas reserved for applicants holding advanced degrees from U.S. institutions. Certain educational institutions and nonprofit or government research organizations are exempt from the cap. Special cap number allocations are also available to H-1B nonimmigrants who are nationals of Chile or Singapore pursuant to certain free trade agreements.
D. Ray Mantle practices immigration law in Frisco, Texas. After receiving his Juris Doctorate, cum laude, from the J. Reuben Clark Law School at Brigham Young University, Mr. Mantle served as an Attorney Advisor in the Department of Justice - Executive Office for Immigration Review, and worked as an associate with a leading corporate immigration law firm before opening his own practice. Mr. Mantle is a member of AILA and the Texas Bar Association. He can be reached by email at firstname.lastname@example.org.
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