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.