U.S. employers seeking to hire foreign nationals in certain specialty occupations under the H-1B visa category are required to file and obtain an LCA (Labor Condition Application) from the United States Department of Labor (DOL) prior to applying for the non-immigrant visa petition with the United States Citizenship and Immigration Service (USCIS). The LCA may be obtained by registering and filing the application found at the DOL’s Employment and Training Administration Form 9035E website.

The LCA was introduced in 1990 by the Immigration and Nationality Act (INA) and further amended in 1998 by the American Competitiveness and Workforce Improvement Act (ACWIA). The purpose of the LCA is to protect U.S. workers from displacement and to protect H-1B workers from exploitation by their U.S. employers. The LCA requires potential U.S. employers to comply with regulations and to make several attestations specified on the LCA. Employers who do not comply with the LCA regulations may be subject to fines, sanctions, and possible debarment from filing of future employment petitions.

LCA Attestations

By law, the employer has to make the following attestations on the LCA:

  1. The employer will pay the foreign worker the actual wage paid to other employees (including U.S. workers) with similar qualifications and experience in the specified position or pay more than the prevailing wage for the occupation in the area of intended employment.
  2. The employment of the foreign worker will not adversely affect the working conditions of U.S. workers in similar positions.
  3. The employer will provide the foreign worker with the same benefits package that is offered to U.S. workers in similar positions.
  4. The LCA was not filed during a lockout, strike, or work stoppage due to labor dispute at the intended place of employment and occupation. Also, if such disputes occur after filing the LCA, the employer will notify the DOL within 3 days of such occurrence and the LCA will not be used for filing the non-immigrant visa petitions until further notification from the DOL.
  5. A copy of the filed LCA has been given to the petitioning employee and the employer has either provided the bargaining representative or union (if any) with a copy of the filing or posted the LCA in a conspicuous location at the intended place of employment.


Special Attestation Requirements for H-1B Employer and Willful Violators

If employers are considered “H-1B dependent”, there are additional attestations that the employer must comply with. Generally, employers who meet the following criteria are qualified as “H-1B dependent” employers:

  1. Employer has 25 or less full-time employees and of those employees, a minimum of 7 are in H-1B status.
  2. Employer has 26-50 full-time employees and a minimum of 12 of those employees are in H-1B status.
  3. Employer has over 50 or more full-time employees and 15% of those employees are on H-1B visa.

In such cases, the “H-1B dependent” employer must also attest to the following:

  • The employer has not and will not displace any U.S worker within 90 days before and after filing the H-1B petition;
  • The employer has taken “good-faith” steps to recruit U.S. workers for the job for which the H-1B applicant is being considered and has offered the job to U.S. workers with similar or better qualifications as the H-1B applicant.


It bears noting that employers who are “H-1B dependent” but have H-1B workers on an annual pay scale of $60,000.00 or more, or if the H-1B worker has a master’s equivalent educational degree, are exempt from the special attestations required for “H-1B dependent” employers. In addition, DOL laws and regulations impose numerous recordkeeping and file maintenance obligations for H-1B participating employers to maintain in a file available for public access.

LCA Violations that Trigger Audits

Employers that have failed to satisfy certain provisions of the LCA may be subject to a DOL audit or investigation. An investigation/audit may be initiated by the DOL as a result of an organization or an individual filing a grievance or complaint with the DOL for a company’s failure to comply with the LCA attestations.

A finding of a LCA violation may result in civil penalties, back pay awards, debarment from future filings, or criminal prosecution for the company in violation. Non-compliance factors that may cause LCA violations include:

  1. Misrepresentation of facts on the LCA.
  2. An employee not being paid the actual wages and benefits stated on the LCA.
  3. Failure to maintain public access files as per regulations.
  4. Failure to post required notices at conspicuous locations or electronically file notices as per regulations.
  5. Failure to pay workers on “bench” or during certain non-productive time.
  6. Failure to comply with displacement protection for U.S. workers.
  7. Employing worker(s) at a site not approved under the LCA.


Document Retention for Possible Audits

The following documents are not required to be maintained in the public access file but must be available to DOL investigators “upon request” in case of an audit. Documents that are frequently requested during an investigation or audit include:

  1. Payroll records.
  2. Social Security Number of the workers.
  3. Worksite location information and period(s) of employment.
  4. Information on paid and unpaid periods (if any).
  5. Date the foreign worker arrived in the U.S. and actual start date of work.


Please note: Immigration laws and regulations are constantly changing and this article is provided for informational purposes only and is not to be construed or relied upon as legal advice under any circumstance. Please refer to our legal disclaimer for additional details.

 

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