A Form ETA 9035, Labor Condition Application (LCA) must be submitted with the U.S. Department of Labor (USDOL) and its certification obtained prior to the employer filing an H-1B petition with United States Citizenship & Immigration Services (USCIS). Though the LCA is an integral part of the H-1B petition, the regulations applicable to an LCA flow from USDOL, which has the enforcement authority.
While the LCA application is a fairly simple one, the rules underlying it are not. Relying solely on employer's attestations, the USDOL obligates employers to ensure that it has taken certain steps to protect U.S. workers from being adversely affected by hiring H-1B workers. The following attestations apply:
-Notice to U.S. workers. The employer must provide notice to U.S. workers at the actual worksite or place of employment accomplished through an appropriate means of communication.
-Wages and Working Conditions. The employer must pay the required wage, (the greater of employer's actual wage or the prevailing wage specific to the metropolitan statistical area), and benefits to H-1B workers offered to similarly employed U.S. workers. It must also attest that the working conditions offered to H-1B workers does not adversely affect similarly employed workers.
-Labor Disputes. The employer must attest that there is no strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification in the area of intended employment.
All H-1B employers must maintain certain documentation evidencing the steps it has taken to comply with applicable attestations. The employer is required to make available a Public Access File (PAF) to the public for inspection as well as for USDOL inspection upon demand. Additionally, the PAF must be available no later than the day after the online filing of the LCA with the USDOL. The PAF and other record-keeping must continue for a certain period of time.
What records must be created and maintained in the PAF? Do the documents fully demonstrate the mandatory steps the employer must take, such the posting requirements, and in certain H-1B dependent employers, recruitment attestations?
Any failure or gaps in the H-1B employer's compliance protocols pose a significant corporate liability – risk of fines, debarment from using the H-1B program, and or other sanctions against the employer.
The firm regularly guides and advises employers with LCA compliance as part of its representation of H-1B visa petitions or independently by helping employers achieve compliance through audits and establishing and executing best practices.