Legal Citations for ILW.COM's Seminar
"Cutting-Edge Topics in H-1B Practice"
Part 1 held on November 25, 2002
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- Cyrus D. Mehta, Administrative Law Judge Hits Employer Hard for H-1B Visa Violations, www.ilw.com
- Robert Divine’s letter in response to the article, www.ilw.com
- Yoshiko I. Robertson, Avoiding The Abyss: H-1B Strategies When Facing Reductions in Force, www.ilw.com
- Cyrus D. Mehta, No-Benching Rule for H-1B Employers, www.ilw.com
- Cyrus D. Mehta, DOL’s Rule on Attorney Fees in the H-1B Program, www.cyrusmehta.com
- Naomi Schorr and Stephen Yale-Loehr, Corporate Cuts: Reductions In Pay And Hours For Nonimmigrants, Bender’s Immigration Bulletin, Vol. 7, No. 8 (April 15, 2002)
- Wendi S. Lazar, H-1Bs: Out of Work and Out of Status? Still, Unresolved Issues Remain, Immigration Law Today, AILA, April 2001
- Gretchen Van Deusen, Special Handling: When an H-1B Nonimmigrant is Terminated, MOBILITY Magazine, http://www.erc.org/MOBILITY_Online/current/0602vandeusen.shtml
- William A. Stock, Wage and Hour Enforcement of Immigration-Related Wage Obligations Increases, Bender’s Immigration Bulletin, Vol. 7, No. 17 (September 1, 2002)
- Alan Tafapolsky, Bingo: A Proactive Approach to DOL Audits, The New Face of Immigration – 15th Annual AILA California Conference Handbook (Eds. T. L. Gordon-Troy, G.E. Do and K.R. Seiden, AILA 2002)
- Suggested Draft Letter to Employer on LCA Obligations, Prepared by Cyrus D. Mehta & Associates
- Correspondence between Thomas W. Simmons, INS Business Services Branch Chief and attorney Bernard P. Wolfsdorf regarding maintaining H-1B status during extended leave, reproduced in 76 Interpreter Releases 46 (Jan. 10, 2000)
- Letter of Thomas W. Simmons, INS Business Services Branch Chief, to attorney Harry Joe, Esq. Indicating that once an H-1B nonimmigrant’s services are terminated, the alien is no longer in valid status, available on AILA Infonet (Doc ID 2313)
- Letter of Efren Hernandez III, Director, INS Business and Trade Services Branch, dated March 27, 2002, to attorney Wendi S. Lazar distinguishing between “laid off” and “fired” nonimmigrant workers, reproduced in 78 Interpreter Releases 616 (April 2, 2001). AILA Doc ID 99030291.
- Angelo A. Paparelli and J. Ira Burkemper, Skeletons in theCloset: LCA Audits in the Age of H-1B Uncertainty, Parts I and II,published in Interpreter Releases, June, 1996.
SUGGESTED LETTER TO EMPLOYER ABOUT LCA OBLIGATIONS– Prepared by Cyrus D. Mehta & Associates, PLLC, 67 Wall Street, New York, NY 10005. 212-4250555;firstname.lastname@example.org
This letter seeks to inform you of the procedures to be followed by the employer in H-1B cases. The process involves two major steps. First, the employer submits a Labor Condition Application ("LCA") to the Department of Labor ("DOL") for certification. Second, the employer files a petition with the Immigration & Naturalization Service ("INS") for H-1B visa classification for the nonimmigrant beneficiary. This letter is only an overview and is not comprehensive. Please contact us if any clarification is needed.
LABOR CONDITION APPLICATION
Most employers will have to attest to four attestations concerning wages, working conditions, work stoppages and compliance with notice requirements to other workers at the workplace (“Main Attestations”). A few employers will have to also attest to two further conditions, in addition to the Main Attestations, concerning an attempt to recruit US workers and no layoffs of US workers (“Additional Attestations”). At this time, you should only be concerned with the Main Attestation.
A. Main Attestations
- Payment of the Required Wage
By signing the LCA, the employer attests that the H-1B nonimmigrant will be paid a wage, which is at least the higher of the actual wage or the prevailing wage for the occupational classification in the area of intended employment. This is called the required wage.
The actual wage is the wage paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question. In determining such a wage level, the following factors may be considered: experience, qualifications, education, job responsibility and function, specialized knowledge, and other legitimate business factors.
Where there are other employees with substantially similar experience and qualifications in the specific employment in question--i.e., they have substantially the same duties and responsibilities as the H-1B nonimmigrant--the actual wage is the amount paid to these other employees. Where no such other employees exist at the place of employment, the actual wage shall be the unique wage paid to the H-1B employee.
The prevailing wage is the average rate of wages paid to workers similarly employed in the geographical area of intended employment. It must be determined on the basis of the best information available as of the time of filing. The regulations indicated the following preferred sources: Federal prevailing wage laws (eg. Davis-Bacon Act); collective bargaining agreement; a determination by a state employment security agency (SESA); and, an independent authoritative source or another legitimate source.
The employer must pay the H-1B nonimmigrant the required wage for time in non-productive status if caused due to a decision of the employer or due to the H-1B nonimmigrant’s lack of a permit or license. In other words, an employer cannot “bench” the H-1B employee. The employer must pay the required wage 30 days after entering the US in H-1B status or 60 days after a change of status in the US. However, the employer’s obligation to pay may trigger earlier once the H-1B employee enters into employment. The employer’s obligation to pay continues until termination of employment. Please consult this office for further clarification on what would constitute an effective termination.
In addition, the employer must offer benefits and eligibility for benefits on the same basis, and in accordance with the same criteria, as offered to U.S. workers. They need not be identical and there are limited exceptions if the H-1B employee is employed in the US only 90 days at a time.
The Employer also bears the responsibility of paying the training fee of $1,000 to the INS for every H-1B nonimmigrant petition filed. The employer may not receive and the H-1B nonimmigrant may not pay, any part of this fee, whether directly or indirectly, voluntarily or involuntarily. In addition, attorney fees paid by the H-1B nonimmigrant will be deducted from the required wage, and could be considered a violation if after the deduction, the wage does not meet the higher of the actual or prevailing wage.
- Working Conditions
The employer must attest that the employment of the H-1B employee in the named occupation will not adversely affect the working conditions of workers similarly employed. The employer further attests that H-1B nonimmigrants will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to similarly employed U.S. workers.
- No Strike, Lockout, or Work Stoppage
The employer attests that on the date the LCA is signed and submitted, there is not a strike, lockout, or work stoppage in the course of a labor dispute in the named occupation at the place of employment. If such a strike, lockout, or work stoppage occurs after the LCA is submitted, the employer will notify the DOL within three (3) days of such occurrence. In such circumstances, the employer attests that the LCA will not be used in support of a petition filing with the INS for the H-1B nonimmigrant to work in the same occupation at the place of employment until the DOL determines the strike, lockout, or work stoppage has ceased.
As of the date of the filing of an LCA, the employer must attest that notice of the LCA has been or will be provided to the workers employed in the named occupation. Notice of the application must be provided to workers through the bargaining representative. If there is no bargaining representative, notice of the filing must be provided to physical posting in at least two (2) conspicuous locations, for 10 consecutive business days, where H-1B nonimmigrants will be employed, or through electronic notification to employees in the occupational classification for which H-1B workers are sought. Each H-1B nonimmigrant employed pursuant to the LCA must be provided with a copy of the certified LCA, a copy of Form ETA 9035CP (instructions). This notification must be provided no later than the date the H-1B worker reports to work at the place of employment.
In addition, copies of the LCA will need to be posted for 10 business days on the first day of an H-1B worker's transfer to a new worksite, even if it is in the same area of employment as already listed on the certified LCA. Please contact us for clarification of the meaning of the term “worksite” within the same area of employment.
If the employer assigns the H-1B worker to an area outside the area of employment listed on the LCA for greater than 30 days, and under certain conditions 60 days, it may be necessary to file a new LCA. Again, we recommend that you contact us before assigning a worker outside the area of employment. Filing a new LCA would also trigger an obligation to file an amended H-1B petition on behalf of this worker.
B. Additional Attestations
The DOL regulations now require employers who are considered to be H-1B dependent or to have been found to be in willful violation of the H-1B program to make two further attestations. The dependent employer or willful violator must attest that it has not displaced an equivalent U.S. worker as well as attest that it has made good faith attempts to recruit U.S. workers at the time of filing the LCA.
- Who Is A Dependent Employer?
An employer is H-1B dependent if it has in the United States:
- 25 or fewer full-time equivalent employees (FTE) and more than 7 H-1B employees;
- between 26 and 50 FTE employees and more than 12 H-1B employees; or
- at least 51 FTE employees and a number of H-1B employees equal to at least 15% of the employer’s total workforce.
An FTE employee is either one who actually works full-time or a combination of part-time employees.
- Displacement Attestation
The displacement attestation is extremely onerous. Apart from ensuring that the employer will not replace an equivalent U.S. worker with a H-1B worker within its organization 90 days before or after filing, a dependent employer must also attest that it will not place an H-1B worker at a worksite where a U.S. worker has been laid off or is likely to be laid off. This secondary displacement prohibition triggers when an H-1B dependent employer places an H-1B worker at a worksite operated or owned by another employer where there is “indicia of employment” between the H-1B worker and the other employer. The DOL defines “indicia of employment” to include situations where the dependent employer’s customer has a right to control when, where and how the H-1B worker performs the job.
Thus the secondary displacement prohibition would become applicable whenever a firm dependent on H-1Bs would place its employee at a customer worksite. If the customer displaces a U.S. worker in an essentially equivalent job either 90 days before or after the placement of the H-1B worker at the secondary worksite, the dependent employer will be penalized by the DOL even if it exercises due diligence. If the dependent employer has actual or indirect knowledge of pending lay offs at its customer site, it can be debarred from the H-1B program for a few years if a lay-off does indeed occur.
The only way in which a dependent employer can protect itself from the higher penalty of debarment is if it secures written assurances from the other employer, inserts a non-displacement clause in the contract or memorializes oral guarantees that it receives from the secondary employer.
- Recruitment Attestation
The dependent employer’s obligation to recruit U.S. workers before filing an LCA is more regulated than the present recruitment standards governing the labor certification program leading to the green card. The dependent employer must use “industry-wide standards” and must engage in active and passive recruitment activities. This would involve not just placing advertisement but also resorting to job fairs, headhunters and campus recruitment. The dependent employer must offer the job first to any equally or better qualified U.S. worker. A U.S. worker may file a complaint if he or she has been wrongfully rejected for the job that was later filled by the H-1B worker
- Exempt Employees
A dependent employer can relieve itself of the recruitment and displacement attestations if it hires exempt H-1B employees. “Exempt H-1B employees” are those who are either paid $60,000 or more (regardless of the prevailing wage) or if the worker has a master’s degree in the specialty, which is generally accepted as appropriate for the position within the occupation or industry. The exempt worker must have the actual foreign equivalent of a master’s degree since the DOL rejects work experience as a basis for equivalency.
C. Public Inspection File
To summarize, the regulations require the employer to maintain the following documents at the worksite or the principle place of business.
- A copy of the LCA as filed;
- Employer’s memo/documentation regarding the method, which formed the basis for determining the actual wage rate;
- A copy of the prevailing wage determination;
- Documentation that employer is providing working conditions for H-1B nonimmigrants that will not adversely affect the working conditions of workers similarly employed, if applicable. This could be in the form of copies of the company’s benefit package from a period before the hiring of the H-1B employee;
- A copy of the notice (i.e., the LCA with the language regarding complaints), together with information about the two places and dates of the posting of the notice; and
- Acknowledgement of posting of LCA and acknowledgement of receipt of LCA by the potential employee.
All documents, except the ones listed as item 4 above, should be available on demand for public inspection within one day of the filing of the LCA. Documents listed as item 4 above are optional for the public inspection file but must be made available to the DOL on demand.
THE H-1B PETITION AND ISSUANCE OF THE H-1B VISA
Once the LCA has been approved, and there has been completion of good-faith recruitment efforts in cases of H-1B dependent employers, we will complete and file the H-1B1 petition with INS. The petition will consist of the Form-129, a company letter of support outlining the position duties and requirements, and supporting documentation, including information about the Employer. It typically takes a four to twelve weeks for INS to approve the petition. The process is hastened if the H-1B petition is filed through the premium processing program.
In the event that the employer dismisses the H-1B nonimmigrant from employment before the end of the period of authorized admission, the employer will be responsible for the reasonable costs of return transportation to his or her residence abroad.
Please notify us regarding any changes in wages, working conditions, or characteristics of the employment position, of if the H-1B nonimmigrant changes jobs. Likewise, notify us if there are any changes in the corporate structure or ownership or if any kind of labor dispute occurs. Such changes can affect both the LCA and the H-1B petition, which both refer to a specific job and to a specific nonimmigrant. We look forward to assisting in the above process. If you have any questions about any of the above, please do not hesitate to contact us.
Very truly yours,
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