MEMO - AILA New York



IMPORTANT NOTICELabor Condition Application (LCA) Regulations for H-1B PetitionersAttached please find information for your files concerning the regulations regarding Labor Condition Applications. Failure to comply with the regulations governing LCA applications may result in termination of the H-1B, debarment from the program and penalties to the company. Therefore, it is imperative that companies strictly comply with the following requirements.1. LCA POSTING REQUIREMENTS:Electronically/ Web-Filed LCAs: The LCAs must be posted in two conspicuous locations for 10 business days at each place of employment where the nonimmigrant will be employed. Appropriate posting locations include, but are not limited to, locations in immediate proximity of wage and hour notices or occupational safety and health notices.2. PUBLIC ACCESS FILES TO BE MAINTAINED BY THE EMPLOYER:A separate Public Access file (“PAF”) for each H-1B applicant must be maintained for a period of one year beyond his/her last date of employment under the LCA, or if no nonimmigrant were employed under the LCA, one year from the date the LCA expired or was withdrawn. The Public Access file must contain: A copy of the signed certified LCA (the certified LCA will be provided to you for signature);Documentation which provides the wage rate to be paid the H-1B nonimmigrant (i.e. offer letter, contract, etc.);Actual Wage Memorandum: A wage memorandum containing a full, clear explanation of the system that you use to set the “actual wage” that you have paid or will pay workers in the occupation for which the H-1B nonimmigrant is sought, including any periodic increases which the system may provide- e.g., memorandum summarizing the system or a copy of your pay system or scale (payroll records are not required, although they shall be made available to the Department in an enforcement action);Prevailing Wage Source: A copy of the documentation that you used to establish the “prevailing wage” for the occupation for which the H-1B nonimmigrant is sought (Generally a print-out from the Foreign Labor Certification Wage Data Center is sufficient). We will provide this to you. A general description of the source and methodology is all that is required to be made available for public examination; the underlying individual wage data relied upon to determine the prevailing wage is not a public record, although it shall be made available to the Department of Labor in an enforcement action).; Signed Notice of Posting/Filing: A copy of the document(s) evidencing the required posting was done union/ employee notification requirements. Summary of Benefits: A summary of the benefits offered to U.S. workers in the same occupational classifications as H-1B nonimmigrants, a statement as to how any differentiation in benefits is made where not all employees are offered or receive the same benefits (such summary need not include proprietary information such as the costs of the benefits to the employer, or the details of stock options or incentive distributions), and/or, where applicable, a statement that some/ all H-1B nonimmigrants are receiving “home country” benefits. 3. PAYMENT OF WAGES:Employers are required to pay the greater of the actual wage or the “prevailing wage” for the occupational category. To document that the employer has met the required wage, wages must be shown to be:Categorized in payroll as earnings and disbursed to employees as “cash in hand, free and clear” unless there are “authorized deductions”; Reported to the IRS, state and local tax authorities as earnings; and Declared as FICA earnings.(Note: If an employer intends to use a form of nondiscretionary pay to supplement regular pay, it must show that the required wage was met for pay periods prior to the disbursement of that payment and that it will continue to be met for future periods.)4. DISTRIBUTION OF SIGNED CERTIFIED LCA TO EACH H-1B EMPLOYEE:You must provide a copy of the signed LCA to each H-1B nonimmigrant no later than the date that the H-1B nonimmigrant reports to the place of employment. Each H-1B worker must sign notification that he/she has received this notice. A copy of the signed acknowledgment should be placed in the Public Access File.5. NEW EMPLOYMENT SITES:The LCA regulations strictly limit an employer’s ability to move an H-1B employee to a worksite not listed on the Labor Condition Application. An employer must file an LCA for any location considered a “place of employment” which is defined as “the worksite or physical location where the work is actually performed.” There are two exceptions to this which are “non-worksite locations” and use of the short-term placement rule. Non-worksite locations are never intended to be permanent. Such a location might include a restaurant to meet with a client, or a client’s place of business to conduct an audit. More on the exceptions below.If the employee will be physically located at multiple worksites (including a home office) and/or a site other than your company’s location (e.g., customer/client site) for more than a temporary period, the additional worksite(s) must be listed on the LCA and postings. Notices of LCA filing must be posted at all of these actual work sites on or within the 30 days before the LCA is filed with the DOL.If your employee moves from his/her original job site during the course of employment, a new posting requirement or the need to file a new LCA and amended H-1B visa petition will be triggered and action is required before the employee moves to the new work site. Please contact our firm prior to the transfer. This requirement may also apply if the entire company or division moves to a new address. Please contact our office to discuss well in advance of any planned move.If an H-1B employee is placed at another worksite within the area of intended employment, the posting process must be completed for the new location. Definition: The area of employment is the area within normal commuting distance of the place (address) of intended employment. If the place of intended employment is within a Metropolitan Statistical Area (MSA), any place within the MSA is deemed to be within normal commuting distance of the place of intended employment. In this situation, you can copy the postings previously used and post them for ten (10) consecutive days at the new worksite. If an H-1B employee is placed at another worksite outside the area of employment and there is no pre-existing valid LCA for the new area for the occupation, you must file a new LCA and amended H-1B visa petition prior to the transfer/relocation.In the situation where the company or a division moves to a new work site, if that new work site is in the same area of intended employment, the notice postings may have to be reposted. If the new work site is outside the area of employment, then new LCAs and amended H-1B petition filings will be required.Short Term Placement Rule: An employer’s short-term placement(s) or assignment(s) of H-1B nonimmigrant(s) at any worksite(s) in an area of employment not listed on the employer’s approved LCA(s) shall not exceed a total of 30 workdays in a one-year period (either calendar year, or fiscal year) for any H-1B nonimmigrant at any worksite or combination of worksites in the area. That placement may be expanded to 60 workdays in a one-year period if the employer can show:The H-1B nonimmigrant continues to maintain an office or workstation at his/her permanent worksite (e.g., the worker has a dedicated workstation and telephone line(s) at the permanent worksite); The H-1B nonimmigrant spends a substantial amount of time at the permanent worksite in a one-year period; andThe H-1B nonimmigrant’s U.S. residence or place of abode is located in the area of the permanent worksite and not in the area of short-term worksite(s) (e.g., the worker’s personal mailing address; the worker’s lease for an apartment or other home; the worker’s bank accounts; the worker’s automobile driver’s license; the residence of the worker’s dependents). If a “short term placement” will exceed either of these two scenarios, the Employer has two options:File an LCA and obtain certification, and thereafter place any H-1B nonimmigrant(s) in that occupational classification at worksite(s) in that area pursuant to the LCA (i.e., the employer shall perform all actions required in connection with such LCA, including determination of the prevailing wage and notice to workers); AND file H-1B amendment if required;ORImmediately terminate the placement of any H-1B nonimmigrant(s) who reaches the workday limit in an area of employment. No worker may exceed the workday limit within the one-year unless the employer first files an LCA for the occupational classification for the area of employment. Employers are cautioned that if any worker exceeds the workday limit within the one-year period, then the employer has violated the terms of its LCA(s) and the regulations and thereafter the short-term placement option cannot be used by the employer for H-1B nonimmigrants in that occupational classification in that area of employment. The DOL will not tolerate attempts to evade these requirements, for example the employer may not continuously rotate H-1B nonimmigrants on short-term placement or assignment to an area of employment in a manner that would defeat the purpose of the short-term placement option, which is to provide the employer with flexibility in assignments to afford enough time to obtain an approved LCA for an area where it intends to have a continuing presence (e.g., an employer may not rotate H-1B nonimmigrants to an area of employment for 20-day periods just to avoid filing a new LCA.No Benching Rule: Once an H-1B employee joins your company, s/he must be paid for all nonproductive periods initiated by the employer. For example, where there is a gap in projects, the H-1B employee must be compensated the full salary stated on the LCA and H-1B visa petition. This is the “no benching” provision of the LCA regulations. It is simply not permissible to not pay an H-1B worker for periods where the employer does not have work to be completed. If the H1B worker requests time off for personal reasons, there is no obligation to pay the wage during that time unless the request is covered under your benefits program or another section of law such as the Family Leave Act. Please note that company shutdowns, or furlough periods of unpaid leave, do not waive the no- benching rule; the H-1B worker is still covered by the LCA and the employer is still responsible for payment of the promised wage during these leave periods. However, once an H-1B employee's employment is terminated, according to DOL, there is a continuing obligation to pay the wage until the employer submits a letter to the USCIS withdrawing the H-1B visa petition and withdraws the LCA. We suggest that your company contact us to notify USCIS and withdraw the LCA when H-1B employee’s employment ends whether voluntarily or not.It is the Employer responsibility, however, to ascertain a withdrawal of LCA and notify USCIS. Please keep in mind that H-1B employees (but not their dependents or personal belongings) who were involuntarily terminated before the end of the H-1B petition period must also be offered the costs of return transportation to their last foreign residence. We recommend that you document that you complied with this requirement in the termination process. ................
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