Employer Attestations and the Labor Condition Application ("LCA")

The filing of an H-1B petition for a foreign national requires an approved Labor Condition Application ("LCA"), valid for the dates of intended employment. The LCA requires that the employer make several attestations to the Department of Labor ("DOL"). The LCA does not require evidence that U.S. workers are unavailable.

The LCA is submitted electronically to the DOL for review. Before the LCA can be submitted, the employer must attest to the conditions listed below and failure to conform to the attestation requirements will result in penalties and other sanctions if discovered by the DOL through an audit.

Generally, audits are conducted when a complaint was filed by someone however, they can occur randomly. If a complaint is filed, DOL's Wage and Hour Administrator will investigate the complaint. If a violation of the LCA was detected, the Administrator may impose a $1,000 fine per violation; bar the employer from obtaining future visas for a period of at least one year; and order the employer to provide for payment of back wages. Material misrepresentation on the LCA can also subject the person who made the attestations to penalties for perjury including fines and incarceration.

Further, a copy of the DOL certified LCA must be given to the sponsored foreign national prior to commencement of the H-1B employment.

• The employer will pay the H-1B employee the higher of:
  
  
  • The actual wage rate that it pays to all other individuals with similar experience and qualifications, or
  • The prevailing wage level for the occupation in the "area of intended employment" based on geographic location
• The hiring of the H-1B worker will not adversely affect the working conditions of workers similarly employed in the intended area of employment;
• There is no current strike/lockout involving the prospective H-1B worker's position at his/her workplace;
• The employer will provide notice of filing of the labor condition application to the employee collective bargaining representative for the H-1B occupation or, lacking such a representative, will conspicuously post such notice (for ten consecutive business days) at the work site on or within 30 days before the date the labor condition application is filed;
• The employer must agree to pay the foreign national the reasonable cost of transportation to return to his/her home country if the employer terminates employment prior to the end of the authorized employment period.
• The employer will maintain a Public Access folder for public examination. The folder must be retained for one year beyond the end date specified on the LCA. In addition to the public access documentation, the company must maintain certain records for DOL to review in the event of an audit.

Please note that there are additional attestations requirements that "H-1B dependent employers" must comply with. An "H-1B dependent" employer is generally one that has a high percentage of H-1B employees.

An H-1B petition must be accompanied by a standard filing fee, fraud fee and the H-1B education and training fee. Immigration Regulations required that the Education and Training fee be paid by the employer and not by the employee. The employer may not ask for reimbursement from the employee. The Education and Training fee, as opposed to the other H-1B fees, needs to be paid only ones when subsequent petitions are filed by the same employer for the same employee.

Some employers are exempt from the Education and Training fee. These employers include Institutions of Higher Education and Nonprofit or Governmental Research Organizations.