Obtaining H-1B status requires a lot of paperwork. Before you even apply for H-1B status, for example, you must be cleared by the US Department of Labor to make sure that your employment will not adversely affect US workers. This clearance takes the form of the Labor Condition petition (LCA).
The LCA is filed on ETA Form 9035. It is the employer who files this application, not the H-1B worker, and it must be re-filed and re-approved every time that an H-1B worker seeks an extension of his H-1B status.
The LCA Attestations
In the LCA, the employer must attest (guarantee under oath) that:
- Employing the H-1B worker will not cause any harm to US workers with respect to either wages or working conditions;
- The employer will pay the H-1B worker at least the higher of the “actual wage” and the “prevailing wage” for the particular type of job;
- The employer will provide notice to its workers that it has filed an LCA; and
- There is no strike, lockout, or similar activity in the occupation for which the H-1B worker will be employed.
Any misrepresentation of the foregoing attestations can result in civil or criminal penalties.
Step by Step Guide
Following is a general overview of the steps you need to obtain and use an LCA.
- Determine the “required wage”. The required wage is the higher of the “actual wage” and the “prevailing wage” (see below).
- Obtain required information, such as:
- The job’s three-digit occupational group code (see the LCA instructions);
- The title given to the job by the employer;
- The number of workers sought for H-1B status;
- The gross wage;
- The period of employment (up to three years); and
- The location of employment.
- Log onto the iCERT Portal System, fill out the petition and submit it. There is no filing fee. An LCA petition can only be submitted within six months of the H-1B worker’s proposed start date.
- Within one working day of filing the LCA, post notice of the LCA filing at no less than two conspicuous locations at the employer’s workplace, and keep the notices up for at least 10 days.
- Wait for certification of the LCA (it should take about a week). Once you receive it, have the operations manager sign it.
- Proceed with the H-1B application, for which you will need the LCA.
- Comply with LCA record-keeping requirements.
Determining the Required Wage
As an employer, you must pay your H-1B worker a minimum “required wage”, calculated in accordance with Department of Labor guidelines, even if this amount is above the legal minimum wage (which it almost certainly will be). You are free to pay more than this amount, but not less.
The purpose of this rule is not so much to protect the H-1B worker, although that certainly is a consideration, but to protect US workers from being “undercut” by cheap labor from overseas. If you fail to pay the required wage, you can become liable for back pay (the difference between the required wage and the H-1B worker’s actual wage) plus a $1,000 fine per violation.
Classifying the Position
You can classify the H-1B worker’s position by comparing the job description with the Department of Labor’s Dictionary of Occupational Titles (DOT) found in the LCA instructions. Be careful, this can be tricky and it is important to get it right.
Determining the actual wage
The actual wage is the wage rate that the employer pays to all workers at the H-1B worker’s place of employment who possess experience and qualifications that are equivalent to those of the H-1B worker. You can calculate this using company records.
Determining the prevailing wage
The prevailing wage is within five percent of the wages paid to workers in the same location who are similarly employed in an identical or similar occupation. This calculation requires access to industry-wide information. The Department of Labor of your state government may have compiled such statistics; otherwise, you will need to do some research. Be certain to use authoritative information to back up your claim.
The final determination of the required wage
Once you have determined the actual wage and the prevailing wage, simply choose whichever one is higher. That is the required wage.
Some Important Notes
Please keep in mind the following:
- The LCA is submitted to the USCIS together with Form I-129 in the H-1B visa application.
- If the Department of Labor rejects your LCS application, you are free to revise it and refile it.
- The LCA, if certified, is valid for no longer than three years.
- Since a new LCA must be obtained to extend an H-1B worker’s period of employment for longer than three years, and the required wage must be re-calculated based on updated information at this time.
- You should strictly comply with record-keeping requirements because an audit could take place years after you submit the LCA.
Professional Legal Assistance Can Maximize Your Chances of Success
The risk of submitting a defective LCA petition extends to more than just rejection of your application, which can always be re-submitted. Even if your LCA is accepted, completing it in a less than ideal fashion might significantly limit your options over the next three years. Contact an experienced immigration lawyer to answer any questions you might have.
