Can an Labor Condition Application (“LCA”) be amended?
No. An LCA cannot be amended. There is no provision to amend it.
For many H-1B employers, this is one of the trickiest questions. Non-compliance with an LCA filing can impose sanctions and violations on the employer, and also put the H-1B employee out of H-1B status. So it is imperative that employers understand the specific situations under which a new LCA must be filed.
Scenarios when H-1B Employers must file a new LCA:
- Change of H-1B Employee’s Job Location
Anytime employee’s job location changes, a new LCA must be filed. So for e.g. if H-1B employer is a staffing company, and the employee who was working on a client-site in Chicago, would now move to a new client site in New York, a new LCA must be filed. The prevailing wages will be in accordance with the new location, and if they are higher than the current wages, employer should make sure the wages are adjusted accordingly.
- Significant change in job duties and/or occupational classification
A change in job duties that would result in the position being classified under a different standard occupational code, or where the nature/focus of the duties is quite different than that stated in the LCA. For example, an employee in position of a Software Developer (on LCA), is now being placed at a new client as a Computer System Analyst would require a new LCA filing, as this would not only change the job duties but also the occupational code.
- H-1B Transfers and Extensions
The employer must file new LCAs if it hires new employees or seeks extensions for the transferred employees. This is obvious since new H-1B Petitions have to be filed in both an H-1B Extension and an H-1B Transfer, which must be accompanied by a new LCA.
Scenarios when H-1B Employers need not file a new LCA:
- H-1B Employee is Promoted
A new LCA need not be filed if the H-1B employee is promoted, and there no significant changes in the job duties and occupational classification of the employee. Employer must document the changes and show that the wages are in accordance with the prevailing wages.
- H-1B Employer goes through Corporate Restructuring
Where an employer changes its corporate structure as the result of an acquisition, merger, “spin-off’ or other such action, the new employing entity need not file new LCAs or H-l B petitions for transferred employees even if there is a change in the FEIN. Prior to employing the H-1B, the “new” employer should issue a sworn statement assuming all obligations, liabilities, and under-takings in all existing LCAs, and put them in the H-1B employee’s Public Access File (“PAF”).
- H-1B Employer Name Change
A name change does not require a new LCA. However, this might have practical issues, if the H-1B employee is returning to the United States on an unexpired visa with the previous employer name. It is recommended for employer to provide relevant name change documents and/or sworn affidavit to the employee while he travels into the United States, to avoid any Port Of Entry issues.
- H-1B Employee location moves within the same Metropolitan Service Area (“MSA”)
Usually if the H-1B employee changes a work-site which falls within reasonable commuting distance (35 miles) or within the same Metropolitan Service Area (MSA) as the original worksite for which the LCA was filed, a new LCA filing is not required. For e.g. a work site change from Midtown NYC to Downtown NYC.
- H-1B Employee is temporarily traveling to a Client Location
If H-1B employee is temporarily traveling to a client location for a very short duration (e.g. 2 weeks), employer might not need a new LCA. The test would be that it should not become a permanent work-site for the employee.
Please be advised whether a new LCA needs to be filed is a very complex legal subject, and certain determinations fall into very gray areas of H-1B regulations. Also, every situation is very unique, and hence, it is always recommended to consult a competent immigration attorney before making a decision based on the above scenarios.