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FINES AND PENALTIES FOR NON-COMPLIANCESERVICES WE PROVIDE

THE LAW OFFICES OF SUNITA KAPOOR

H-1B LCA Compliance

Background

H-1B non-immigrant workers perform services in a specialty occupation.

A specialty occupation requires the “theoretical and practical application of a body of specialized knowledge, and a bachelor's degree or the equivalent in the field.”

To file an H-1B application, you must file the following forms with the Vermont Service Center:

1.Form I-129, Supplement H and H-1B data collection.2.A copy of the beneficiary’s educational credentials3. A credential evaluation, if the beneficiary has a foreign

degree or a combination of education/experience4.Description of the company hiring the beneficiary5.Labor Condition Application (LCA)

What is the Labor Condition Application?

The Labor Condition Application is important because it protects the wages and working conditions of non-H-1B workers.

Every H-1B application must include a LCA which can be filed on form ETA -9035, certified by the Department of Labor.

Labor Condition Application

You may submit an LCA at http://www.lca.doleta.gov/The employer, by submitting the form, agrees that1. Hiring the H-1B workers does not adversely affect

the working conditions of similarly-situated workers, and

2. The employees will be paid the actual or the prevailing wage, whichever is higher;

3. There is no strike or lockout, and 4. Existing employees were notified by: 2 visible postings, electronic posting (or email) and

delivery to a collective bargaining representative.

Additional Attestations

The employer may have to make additional attestations if he/she is H-1B

dependent or is a willful violator of H-1B requirements.

A willful violator is an employer who has been found to commit a willful failure, or misrepresentation in LCA compliance in the past 5 years.

An employer is H-1B dependent under these 3 conditions:

1.25 employees or less, and hiring 8 or more H-1B workers

2.26 to 50 employees, and hiring 13 or more H-1B workers

3.51 or more employees and hiring 15% of its total workforce or more from H-1B workers.

LCA compliance

The employer agrees to 4 LCA preconditions: (Wages, Working Conditions, Strike/lockout, and Notice).

All employers who hire H-1B employees must comply with these requirements:

1. Notice of intent to hire H-1B workers2. Creation of a public access file with

documents proving the wage rate, benefits offered, etc.

3. Providing additional documents to the DOL as requested

Why is LCA compliance important?

Non compliance gives rise to penalties.The penalties range from $1,000 to $35,000

for each violation. Other sanctions include requiring the

employer to pay back-pay.

Notice of intent to hire H-1B workers

30 days before the LCA is filed, provide a notice of your intention to hire an H-1B employee. Include the following information:

“The notice shall indicate that H-1B non-immigrants are sought; the number of such non-immigrants the employer is seeking; the occupational classification; the wages offered; the period of employment; the location(s) at which the H-1B non-immigrants will be employed; and that the LCA is available for public inspection at the H-1B employer's principal place of business in the U.S. or at the worksite. The notice shall also include the statement: Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.” (Excerpt from www.uscis.gov).

Hard copy notice

Post a notice in at least two prominent locations where H-1B employees will be working. Make sure the notices are visible.

The notices must be easily readable. The notices may be placed close to wage and

hour notices, or occupational safety and health notices.

The notice should be posted for at least 10 days. It must be posted on or within 30 days before the date the labor condition application is filed.

Electronic Notice

Notice may also be given electronically. You may send a mass email to all H-1B employees.

Public Access Files

Employer must maintain records that can be inspected by the public and the DOL. This public access file should include:

A copy of the certified LCA (on Form ETA 9035) or FormETA 9035E and cover pages (Form ETA 9035CP), with the

employer’s original signature and cover pages The rate of pay the H-1B employees will receive. A memorandum detailing the actual wage payment system. A copy of the prevailing wage determination from SWA, or a

description of survey or other source used Offer letter, with the wage to be paid to the H-1B employee Summary of benefits to show they are the same as those

offered to non-H-1B workers. Copy of the notice to the union, if applicable, or notice

postings A statement attesting to obligations in corporate

restructuring situations

Certified LCA with signature of employee proving that he or she received a copy must be added before the employee’s first day of work

In the future, you may need to add the following:

Documents concerning adjustments in the wageEvidence of recruitment of U.S. workers, and a list

of H-1B exempt employees (if the employer is H-1B dependent or willful violator).

Sworn statement from the new employer that it accepts the obligations under the LCA’s filed by the previous employer, and a list of affected LCA’s.

Other LCA documents

Some documents must be made available to the DOL upon request:

Wage rate records of all other employees for the job in question.

Data used to determine the actual wage rateDocuments supporting the employer’s

prevailing wage determination. Offer of benefits Evidence of notification to the H-1B workers

The sanctions are strictly applied. If you don’t comply with LCA requirements, you may face fines of $1,000 to $35,000 for each violation.

To avoid paying these heavy fines, it is advisable to seek the assistance of a competent attorney who can help you remain in compliance with the LCA conditions.

The Immigration Law Offices of Sunita Kapoor can help your company remain in compliance, and avoid these fines.

Attestation of prior recruitment

H-1B dependent or willful violator employers must show prior good faith efforts to recruit U.S. workers for the positions.

The employment position must have been extended to any U.S. worker, equally qualified as the H-1B worker, at the prevailing wage.

Recruitment must be internal and externalThe employer must engage in at least some

active recruitmentIf the H-1B nonimmigrant is exempt, no

evidence of prior recruitment is required.

What our law offices can provide

We audit your Public Access File.We also perform internal audits of your

compliance. We can also answer any questions you have

about LCA compliance. Assist you with preparing for DOL Wage and

Hour Audits.

Contact us

The Law Offices of Sunita KapoorAddress:

2825 Wilcrest DriveSuite 361

Houston, TX 77042Phone: (713) 782-3332

Fax: (713) 782-3339We are dedicated to serving you in all your

immigration law needs!