H-1B Process: The LCA

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Every employer who wants to sponsor an immigrant for an H-1B has to file, and get certified, a Labor Condition Application (LCA).  But what is the LCA and why is it important?  The LCA has two specific purposes.  First, it is there to make sure that foreign workers are not paid wages that are lower than US Citizens and Permanent Residents, thereby depressing wages for everyone.  Second, it is there to make sure that foreign workers and US workers are treated fairly and equitably.  In short, the LCA is a series of attestations of the employer.  Specifically, the employer is attesting that:

  1. The employer will pay the required wage, which is the greater of the prevailing wage or the actual wage paid to other employees in the same position
  2. The employment of H-1B workers will not adversely effect the working conditions of US workers
  3. When the LCA was filed, there was no strike, lockout or other work stoppage because of a labor dispute
  4. The H-1B worker will be given a copy of the LCA, and the employ
    er has notified the bargaining representative if the job is unionized, or if not, has posted in a conspicuous place notice that an LCA was filed

The last attestation needs some elaboration.  Under the regulations, the employer must provide the employee with a copy of the LCA within 1 day of the employee starting work.  This must be documented (get the employee to sign a form that they received a copy and put it in the employees file).  In addition, if there is a union, the union must notified of the LCA filing by providing them a copy of the LCA (same documentation requirement).  If there is no union, then the employer must post the LCA in 2 conspicuous locations at the place of employment for 10 days.  The employer should then sign a notice that they did post the notices and where and place that in the employees file.

In addition to the above, the employer must, within one business day of filing the LCA, establish a public access file that may be viewed by any person.  This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage, including its source, whether the state or a private survey is used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed.

In addition, the employer must keep other information that need not be made available to the public.  This includes payroll data for all employees in the same occupations as the H-1B worker, a calculation of the actual wage paid the H-1B worker, the raw data behind the prevailing wage determination, documentation of any fringe benefits provided workers, evidence that the H-1B worker has been given a copy of the LCA, and evidence that the LCA was given to the Union or posted as required.

There are additional attestations for those employers who are deemed to be H-1B dependent.  H-1B dependence is determined as follows: If the employer has 25 or fewer employees, if more than 7 are on H-1Bs, if the employer has 25-50 employees and more than 12 are H-1B employees, or if the employer has more than 50 employees and more than 15% are on H-1Bs.  For those employers who are H-1B dependent they must also attest about the recruitment of workers as well as that they are not displacing US workers in their company OR in other companies by hiring the H-1B employee.

The LCA is an important part of the H-1B process and the above steps need to be filed in all H-1B cases.  As always, remember while blogs are good at disseminating general information, you can only get good legal advice by contacting and discussing your specific case with a qualified attorney.

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