H-1B Employer’s compliance with Posting Requirements of an LCA Notice of Filing

LCA Notice of Filing – Key Facts

  • An employer who is in process of employing H-1B workers, upon filing of Labor Condition Application (“LCA”) Form ETA 9035 or 9035E must:

    • Provide notice of filing to the bargaining representative, if a Union exists in the employer’s business.
    • Post the notice of filing in two or more conspicuous locations in the employer’s place of business, and/or at a client worksite if employee will be working at client’s place.
  • LCA Notice of Filing requirements for an “H-1B” will include “E-3 and H-1B1” as well.

What will an LCA Notice of Filing consist of?

The notice may be the LCA itself or a document of sufficient size and visibility that indicates:

  • That employer is seeking to employ H-1B worker(s)
  • Number of H-1B worker(s) on the LCA
  • Occupational classification H-1B worker(s) would be employed in
  • Wage(s) offered
  • Period of employment
  • Location(s) at which the H-1B worker(s) will be employed
  • That the LCA is available for public inspection
  • Notice shall also clearly state where complaints may be filed by aggrieved parties, and will state: “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.”

What are the Posting Requirements for an LCA Notice of Filing?

  • Notice must be posted in a least two conspicuous (“easily visible to everyone”) locations at each place of employment where any H-IB worker(s) will be employed.
  • Notice must be posted on or within 30 days before the date the LCA filing and shall remain posted for a total of 10 days.
  • Notice must be posted in areas where Wage and Hour and OSHA notices are posted.

LCA Notice of Filing Formats

  1. Hard Copy Notice
    A hard copy notice shall be posted in at least two conspicuous (“easily visible to everyone”) locations at each place of employment where any H-1B nonimmigrant will be employed (whether such place of employment is owned or operated by the employer or by some other person or entity).
  2. Electronic Notice
    • An employer cam provide electronic notice to employees in the “occupational classification” for which H-1B employee(s) are being recruited, through any means it normally communicates with employees. For e.g. an employer website home page, electronic bulletin board or an e-mail.
    • If electronic notice of filing is sent through e-mail, it need only be sent once.
    • If posted on employer website (e.g., home page or electronic bulletin board), it should be “posted” for 10 days.
      Where employees lack practical computer access, a hard copy must be posted in accordance with posting requirements. In alternative, the employer may provide employees individual copies of the notice.

Additional Notice of Filing Requirement for an “H-1B-Dependent Employer” or a “Willful Violator”

If the employer is an H-1B-dependent employer or a willful violator, and the LCA is not being used only for exempt H-1B worker(s), the notice of filing will set forth the nondisplacement and recruitment obligations to which the employer has attested, and also include the following additional statement:

“Complaints alleging failure to offer employment to an equally or better qualified U.S. applicant or an employer’s misrepresentation regarding such offers of employment may be filed with the Department of Justice, Civil Rights Division, Office of Special Counsel for Immigration-Related Unfair Employment Practices, 950 Pennsylvania Avenue, NW., Washington, DC 20530, Telephone: 1 (800) 255-8155 (employers), 1 (800) 255-7688 (employees); Web address: http://www.usdoj.gov/crt/osc.

Notice of Filing Requirements for H-1B employee(s) placed at worksites not previously listed on LCA

Where the employer places any H-1B employee(s) at one or more worksites not listed at the time of filing the application, but which are within the area of intended employment listed on the LCA, the employer is required to post electronic or hard-copy notice(s) at such worksite(s), as per notice of filing requirements, on or before the date any H-1B employee begins work at that worksite.

Providing LCA Filing Notice to the H-1B Employee

The employer shall provide the H-1B nonimmigrant with a copy of the LCA (Form ETA 9035, or Form ETA 9035E) certified by ETA and signed by the employer (or by the employer’s authorized agent or representative).
Notice must be provided no later than the date the H-1B employee reports to work at the place of employment.
If H-1B employee requests, the employer will immediately provide a copy of the cover pages, Form ETA 9035CP.

H-1B Employer Documentation of LCA Notice of Filing

H-1B employer should develop and maintain documentation to provide proof of notice of filing as follows:

  • If a Union exists, copy of the dated notice and the name and address of the collective bargaining representative to whom the notice was provided.
  • When a Union does not exist, employer shall note and retain the dates when, and locations where, the notice was posted and also retain a copy of the posted notice.

Labor Condition Application (LCA) – Key Facts

LCA Key Facts

  • Employer (“Petitioner”) must obtain a certification from Department of Labor (“DOL”) that it has filed a Labor Condition Application (“LCA”) in the occupational specialty. Before an H-l B petition can be filed the employer must obtain certification of an LCA.
  • The employer must have a valid Federal Employment Identification Number (“FEIN”) in order to file for an LCA.
  • LCA Applies to all H-1Bs including fashion models and physicians, but not Department of Defense (“DOD”) category.
  • LCAs are also for H-1B1s and E-3s.
  • The LCA is completed on electronic Form ETA 9035E through the DOL iCERT Visa Portal System.
  • DOL no longer accepts LCAs by fax but may allow mail-in where employer has a physical disability or lacks internet access.
  • Employers with physical disabilities or those who lack internet access must submit a written request to DOL for permission to submit the LCA via U.S. mail, establishing why the employer is unable to file electronically.

LCA Certification Timeline

  • The LCA will not be accepted by the Department of Labor (DOL) more than 6 months before the beginning date of employment.
  • Unless the DOL finds the LCA “incomplete” or “obviously inaccurate”, the agency is directed to provide the certification within (7) seven working days of the filing of the application.
  • If no email notification of a final determination is received within (7) seven working days, employer can check with ICERT Portal System and LCA Help Desk at LCA.Chicago@dol.gov.

What does an LCA contain?

  • It shall contain the number of workers sought, the occupational classification for each, the prevailing wage and method for determining it, the wage rate, location of worksite(s), hours of work (full-time or part-time).
  • It will also indicate if it is filed for a new case, a transfer case or an extension with the same employer case.
  • It can be for one or more workers

LCA Availability for Inspection

Employer must make LCA available for public inspection within (1) one day of filling with DOL.

LCA submission with H-1B Petition

  • LCA (“ETA 9035E”) must be printed and signed by the employer immediately after Employment and Training Administration (“ETA”) provides the electronic certification.
  • The signed form must be maintained in the employer’s file, a copy must be maintained in the public access file, and another copy submitted with the H-1B petition.

LCA for multiple Worksites

  • Although, the LCA is be limited to a single occupational classification (job classification), and part-time or full- time work; it can list multiple locations where the H-IB employee will work.
  • LCA should list the prevailing wage for each worksite, and employer should pay atleast highest of the prevailing wage of all worksites.

LCA for Part-time and Full-time Work

  • LCA may cover either full-time or part-time work hours.
  • A single LCA cannot combine full-time and part- time positions.

LCA must be provided to the Employee

The employer shall provide a signed copy of the certified LCA to the H-1B employee no later than the date he or she reports to work.

LCA Posting Requirements

Notice of the LCA must be posted at the employer’s work place and/or client worksite. If there is a union it must be given to the union before filing the LCA.

LCA Public Access File

An employer must maintain a public access file accessible to interested and aggrieved parties. The public access file must be available at either the employer’s principal place of business or at the worksite.

How long should the LCA records be retained?

  • All records must be retained (1) one year beyond the LCA period or if complaint is filed, until the complaint is resolved.
  • Payroll records must also be retained for these periods but no less than the 3-year period beyond the LCA period.

Can an LCA be amended?

No there is no provision of amending an LCA. If there is a “material change” in the employment, employer must file a new LCA.

Can an LCA be withdrwan?

  • An employer may withdraw an LCA through the ICERT Portal System, via email or by written notice.
  • An employer may withdraw the LCA at any provided the employee benefiting from the LCA is not currently working, and Wage and Hour Department (“WHD”) has not commenced an investigation.
  • Termination that is properly conducted (bonafide) will also end the LCA validity.

Termination of H-1B Employee – Is it bonafide?

What constitutes proper termination of an H-1B employee?

Termination and layoff of H-1B employees often put forth questions as to whether the termination was bonafide. H-1B regulations can impose strict penalties on employers for not properly terminating employees, resulting in unnecessary legal battles and costs, and possible future disqualification from the H-1B program for the employers.

This post will layout the regulations, and give an insight into proper procedure to be followed in an H-1B employee’s termination. H-1B employers can be found liable for back wages, and an employee may not be considered properly terminated for purposes of cutting off backpay and frontpay unless the employer abides by the following steps:

  1. Termination Letter

    Employer should properly and clearly notify the H-1B employee of the termination. This should ideally be in form of a termination letter. The letter should clearly state employee’s last day of work.

  2. Letter notifying USCIS

    Employer should notify United States Customs & Immigration Service (“USCIS”) that the employment relationship has been terminated as of the last date of H-1B employee’s work. This notice should be sent via a letter.

  3. Offer Transportation Cost

    Employer should offer the H-1B employee with payment for transportation home, in the termination letter. This could be in form of a payment for air ticket reimbursement, if the employee needs to leave for his/her home country. If, however, the H-1B employee voluntarily resigns, transfers his or her employment to another H-1B employer, or changes his or her status to another lawful visa classification, the travel-reimbursement requirement is nullified.

All the 3 steps listed above must be followed by an H-1B employer for proper employee termination. None of these steps are optional, and not complying with even a single step could result into employer being liable for back pay and/or pay until the end of Labor Condition Application (“LCA”) period.

Department of Labor (“DOL”) Compliance for proper Termination

USCIS and DOL are two separate government agencies who are responsible for H-1B program enforcement. Since DOL primarily deals with labor violations, it is primarily involved in frontpay/backpay issues and also termination/layoffs of H-1B employees. Any complaints regarding H-1B terminations are usually dealt by DOL investigators.

In order to comply with DOL, employers should withdraw the LCA, as soon as the H-1B employee is terminated. This will notify DOL of the termination.

So why is proper bonafide termination of an H-1B employee so important?

As discussed in the section above, not terminating an H-1B employee could create unnecessary legal hassles for the employer. However, more importantly improper termination can also put the H-1B employee’s status in jeopardy. In many instances, the H-1B employee might not be aware of his termination, and be under an impression that he/she is still employed by the employer. Since the employee has stopped performing specialty occupation duties, as such he/she would be considered out-of-status. Further, by the time the employee finds out of the termination, it might be a little too late, and can make it difficult for him/her to transfer H-1B visa with another employer.

Recent Cases where Employer paid heavy penalty for not following proper steps in an H-1B Employee’s Termination

In a recent DOL case, the Wage and Hour Department (“WHD”) Administrative Law judge (“ALJ”) awarded more than $150,000 in back wages, interest, and legal fees to a single H-1B employee who was wrongfully terminated by his California-based employer after only four months of H-1B employment. The basis for such a significant award was, in part, punitive, as the judge found that the employer had unlawfully retaliated against the H-1B worker upon learning that he filed a grievance with the DOL’s Wage and Hour Division. The H-1B worker alleged in his grievance that he had been unlawfully “benched” and unpaid for much of his first four months of employment. Because the employer was unable to evidence proper notification to the USCIS of the H-1B worker’s termination and, further, was unable to demonstrate it had offered to reimburse the terminated H-1B worker the cost of his travel back to his last residence abroad, the ALJ found the employer failed to effectuate a bonafide termination. The ALJ ordered the employer to pay the H-1B worker the $60,000 yearly salary listed in the LCA for the remaining two years and eight months of the H-1B worker’s “authorized period of stay” in the LCA.