Employers who wish to sponsor foreign national employees in H-1B status (specialty occupations requiring at least a Bachelor’s degree or equivalent), H-1B1 status (specialty occupations for those from Singapore and Chile), or E-3 status (specialty occupations for those from Australia), must first file and receive a certification of a Labor Condition Application (LCA) from the U.S. Department of Labor (DOL).
By filing the LCA, the employer makes several attestations about the working conditions of the proposed employment, as well as the impact of such employment on other U.S. workers. Specifically, the employer agrees to:
The employer must also provide a copy of the LCA to the foreign national employee(s) by no later than the first day of employment.
There are additional LCA attestation requirements for employers that are considered to be “H-1B dependent” due to employing a certain percentage of individuals in H-1B status, for employers that are considered to be “willful violators” because government has found that they have violated the terms and conditions of the H-1B program, and for employers that have received TARP funding. These employers must agree:
Employers are required to create and maintain an LCA public access file, which must be available to the public and the DOL upon request throughout the period of H-1B, H-1B1, and/or E-3 employment, and for a specified period beyond. The public access file must be available within one working day after the filing of the LCA and must contain the following:
The DOL may also require that the employer provide additional documentation in the event of an audit, investigation, or inquiry, which may include, but is not limited to: payroll records; names, addresses, occupations, and social security numbers of workers; rate of pay, hours worked, gross and net pay, and deductions of workers; benefit plans provided; adjustments made to the actual wage system; and calculation used to determine “H-1B dependent” status.
The DOL’s LCA obligations and requirements attempt to protect both the H-1B, H-1B1, and E-3 foreign national employee, as well as the U.S. worker, by ensuring that employers do not take advantage of foreign nationals and do not depress the wages of U.S. workers. A DOL investigation may be triggered by complaint from an aggrieved party or by a random audit. If the DOL finds that the employer violated its LCA obligations, it may impose fines, award back pay or reimbursement for improper deductions, or debar a company from filing future H-1B, H-1B1, and E-3 petitions, amongst other administrative remedies.
Please contact one of the immigration attorneys at Minsky, McCormick & Hallagan, P.C., if you have questions about your company’s LCA obligations, need assistance in conducting an internal LCA self-audit, or require representation in responding to a DOL investigation or audit.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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