What’s the H-1B Labor Condition Application Process?

There are differences Maryland employers should understand

Employers seeking foreign workers under the H-1B visa program are subject to their own distinct form of labor certification. Employers of applicants need to seek approval from the Department of Labor (DOL) for a Labor Condition Application (LCA) (which contains statements and promises from the employer about the employer’s labor conditions) for both the H-1B holder and U.S. workers. The United States Citizenship and Immigration Services (USCIS), and the DOL, require employers to complete an LCA to ensure that the H-1B visa holder’s employment doesn’t adversely affect the wages and working conditions of U.S. workers.

This process is not to be confused with the temporary labor certification process for employers of H-2A and H-2B visa applicants.

How to start the process

Employers begin by obtaining a Prevailing Wage Determination (PWD). The prevailing wage is generally considered to be the average of the wages paid to workers similarly employed in the area of intended employment. Employers file an application for PWD to the DOL, which then returns the form with the resulting prevailing wage determination.

Employers must pay the H-1B employee whichever of the prevailing wage or actual wage is higher. The actual wage is the wage rate paid by the employer to all individuals with experience and qualifications similar to the visa holder's, for the specific employment in question at the place of employment; the actual wage is not the average of the wage rates paid to all workers employed in the occupation. Once the wage is determined, the LCA requires other basic information about the employment, including:

  • job title
  • job description
  • number of workers sought
  • period of employment (up to six years)
  • location of intended employment

Labor conditions statements

The LCA contains several required employer attestations. Failure on the part of the employer to comply with the LCA attestations could lead to civil or criminal penalties. By submitting an LCA, an employer promises that:

  • employment of the noncitizen will not adversely affect the wages and working conditions (such as hours, vacations and benefits) of workers similarly employed in the location of employment
  • the employer will pay the noncitizen the higher of the actual wage or the prevailing wage for the occupational classification in the area of intended employment—even during periods of non-productive status
  • the employer will notify their employees that an LCA is being filed
  • at the time the application is signed, there is no strike, lockout or work stoppage related to a labor dispute in the occupation

Extra obligations for H-1B dependent employers

An employer is considered H-1B dependent if the company employs:

  • one-25 full-time employees, and more than seven are H-1B employees
  • Twenty-six-50 employees, and more than 12 are H-1B employees
  • over 50 employees, and fifteen percent or more are H-1B workers

H-1B dependent employers must make two additional attestations in the LCA. One: A promise that U.S. employees will not be displaced. The other is a promise that the employer has made good-faith efforts to recruit U.S. workers for the job.

There is an exception to the additional attestations for H-1B dependent employer if the H-1B employee is an exempt employee under a 1998 law change. An H-1B-exempt employee is an employee that is either:

  • paid an annual salary of $60,000 or more
  • holds a master’s degree in a relevant field

The exemption has received attention recently—one reason being that the annual salary figure of $60,000 was set more than 20 years ago. Another reason is that the exemption has been used in circumstances where U.S. workers were potentially displaced. With questions of potential abuse of the H-1B program swirling, it is important for U.S. employers and foreign employees to obtain legal advice on H-1B labor conditions from an experienced Maryland immigration attorney.

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