Compliance for employers seeking H-1B immigrant workers
Since the Immigration Act of 1990, the Labor Condition Application (LCA) has been used to protect the wages of U.S. workers, while guaranteeing fair conditions for foreign workers.
Prospective employers of specialized occupations must obtain a certification of an LCA from the Department of Labor (DOL). Strict compliance is required by USCIS; a potential violation can result in fines, bars on sponsoring nonimmigrant or immigrant petitions, and other serious sanctions against the employer. The LCA application requires that the employer comply with the following labor requirements:
- The employer will pay the to the beneficiary that are at least equal to actual wages paid to others with similar experience and qualifications for the position; or the prevailing wage for workers occupying the same position, based on the best information available
- The employment of the H-1B worker will not adversely affect the working conditions or wages of US workers
- No strike or labor unrest at the place of employment
- The H-1B worker will be given a copy of the LCA, and the employer has notified the bargaining representative (if the job is unionized), or has posted the LCA notification in at least two conspicuous locations at the place of employment for a period of ten days.
Public disclosure must be maintained throughout the process via the creation of a public access file containing:
- A copy of the LCA (with employer’s original signature and cover pages)
- Documentation (offer letter) of the wage, including any adjustments, to be paid to the H-1B employee and explanation of the process used to determine said wage.
- Copy of prevailing wage determination from state employment security agency or description of survey or other source used
- Copy of notice to union (if applicable) or postings
- Summary of benefits plan offered to the H-1B employee proving that it is the same package offered to similarly employed US workers.
- Copy of certified LCA with signature of H-1B employee as proof he/she received copy
- Where the employer undergoes a change in corporate structure, and does not choose to file amended petitions for each H-1B it acquires, a sworn statement from the new employer that it accepts all obligations under the LCAs filed by the predecessor employer and a list of the affected LCAs
Currently, online processing through the iCERT portal takes about seven business days. Once granted, an LCA is valid for three years.
If you have questions about your LCA process and one of our experienced employment-based immigration attorneys will be glad to assist you.
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