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Presenter. Jill M. Guzman, Immigration AttorneyInternational Employment Manager, NC State University (Human Resources)2711 Sullivan Drive, Campus Box 7210, Raleigh, NC 27695Direct: 919-515-4518Fax: 919-515-7543jill_guzman@ncsu.edu. Overview. Brief H-1B and Labor Condition Application overviewC
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1. LCA and Public Access File Compliance UNC System Immigration Workshop
Friday, November 7, 2008
2. Presenter Jill M. Guzman, Immigration Attorney
International Employment Manager, NC State University (Human Resources)
2711 Sullivan Drive, Campus Box 7210, Raleigh, NC 27695
Direct: 919-515-4518
Fax: 919-515-7543
jill_guzman@ncsu.edu
3. Overview Brief H-1B and Labor Condition Application overview
Compliance: Public Access (or Inspection or Examination) File
Required contents
Enforcement actions
4. Brief H-1B Overview Specialty occupation position requiring at least a bachelor’s degree in a specific field, or equivalent
6 year maximum period of stay, with exceptions for people at certain stages of the permanent residence process
Early termination requires employer to pay ‘reasonable cost of return transportation’ abroad
Universities are exempt from 65,000 (+ 20,000 for advanced degrees) annual quota
5. Labor Condition Application CIS regulations require that the employer file a certified Labor Condition Application (LCA) with H-1B petition
Certified by DOL after electronic filing of form ETA 9035E
Can be valid for up to 3 years
www.lca.doleta.gov
DOL regulations concerning LCAs are found at 20 CFR Sec. 655.700 – 655.855
6. Labor Condition Application LCA contains 4 employer attestations:
Payment of local actual wage or prevailing wage, whichever is higher (and offer of benefits on same basis as U.S. workers)
No adverse affect on the working conditions of U.S. workers
No strike or lockout in the occupational classification at place of employment
Notice of LCA filing provided to bargaining representative or to affected workers via notices, and to H-1B nonimmigrant
20 CFR Sec. 655.731 – 655.734
7. Labor Condition Application 1st employer attestation: payment of local actual wage or prevailing wage, whichever is higher, and offer of benefits on same basis as U.S. workers
For entire period of authorized employment, employer will pay required wage; no “benching” allowed – wages must still be paid
Actual wage: rate paid to all other individuals with similar experience and qualifications at the place of employment
Prevailing wage: from authoritative source meeting certain criteria; e.g. ESC (SWA) or OES online wage library
Wage adjustment documentation must be maintained
Wage requirement includes obligation to offer benefits and eligibility for benefits to H-1B workers on same basis as offered to U.S. workers
8. Labor Condition Application 2nd employer attestation: no adverse affect on the working conditions of U.S. workers
H-1B worker receives same working conditions (on same basis and in accordance with same criteria) as U.S. workers
Working conditions: hours, shifts, vacation periods, benefits (such as seniority-based preferences for training programs and work schedules)
9. Labor Condition Application 3rd employer attestation: no strike or lockout in the occupational classification at place of employment
As of date the LCA is filed, employer is not involved in strike, lockout or work stoppage in course of labor dispute
After certification of LCA: if strike or lockout occurs during validity of LCA, employer must notify DOL/ETA within 3 days
Can’t move H-1B worker to such a worksite
Can’t use that already certified LCA to bring on more H-1B workers
10. Labor Condition Application 4th employer attestation: notice of LCA filing provided to bargaining representative or to affected workers via notices, and to H-1B nonimmigrant
Notice must be given on or within 30 days BEFORE the LCA is filed with DOL
If no union rep: notices posted in at least 2 conspicuous locations for 10 consecutive days at place of H-1B worker’s employment
On or before first day of work, employer must give H-1B worker a certified copy of the LCA signed by employer
11. Public Access File Employer is responsible for:
Preparing, retaining and making available all required supporting documentation for LCA
Creation of Public Access File (PAF) within one working day after the date the LCA is filed with DOL
Keeping PAF at either the principal place of business or actual place of employment
Providing access to PAF to any member of public who requests access to the file; doesn’t have to be an “aggrieved” or “interested” party
Making file available to requestor within one working day of the request
12. Public Access File What every PAF must contain (per 20 CFR Sec. 655.760):
1. Copy of the certified LCA and cover pages
If electronic version of LCA, a printout of the certified LCA must be signed by employer and included in PAF
2. Documentation providing the wage to be paid to the H-1B worker
Offer letter, memo with wage amount, etc.
Must be current – employer must update with salary adjustments
13. Public Access File What every PAF must contain:
3. A full, clear explanation of the system used by the employer to set the “actual wage” the employer has paid or will pay workers in the H-1B worker’s occupation, including any periodic increases
Example (in regulations): memo summarizing the system or a copy of the employer’s pay scale/system
Payroll records not required in PAF, but could be requested by DOL during an enforcement action
14. Public Access File What every PAF must contain:
4. Copy of documentation employer used to establish the “prevailing wage” for the H-1B worker’s occupation
ESC determination, OES print-out, other survey source
PAF only needs to contain a general description of the source and methodology
Underlying individual wage data relied upon for the prevailing wage is not a public record
15. Public Access File What every PAF must contain:
5. Copy of the documents used by the employer to satisfy the union/employee notice requirement
If no union, must include the two physical posting notices or memo
6. Summary of the benefits offered to U.S. workers in the same occupational classification as H-1B worker
Need statement as to how any differentiation in benefits is made if not all employees are offered or receive the same benefits
If applicable: statement that some/all H-1B workers are receiving “home country” benefits
16. Public Access File What every PAF must contain:
7. If applicable: Change in corporate structure – sworn statement by the responsible officer of the new employing entity that it accepts all obligations, liabilities and undertakings of LCAs of predecessor employer
Also need a list of all affected LCAs and dates of certification(s)
Also need a description of actual wage system and new FEIN (Federal Employer Identification Number)
17. Public Access File What every PAF must contain:
8. If applicable: Where employer uses the Internal Revenue Code definition of “single employer,” a list of any entities included as part of single employer in making determination as to its H-1B dependency
IRC, 26 USC 414(b), (c), (m) or (o):
All employees “within a controlled group of corporations”
All employees of trades or businesses under common control
All employees of members of an affiliated service group
Will be treated as the employees of a single employer
18. Public Access File What every PAF must contain:
9. H-1B dependent and willful violator employer: a list of the “exempt” H-1B workers if employer indicates on LCA that only “exempt” workers will be employed
10. H-1B dependent OR willful violator employer: summary of the recruitment methods used and timeframes of recruitment for U.S. workers
19. Public Access File Definition of H-1B dependent:
20 CFR Sec. 655.736(a)-(e)
An employer is “H-1B dependent” if it meets one of the following three standards:
25 or less FTEs employed in U.S. and 8 or more H-1Bs
26-50 FTEs employed in U.S. and 13 or more H-1Bs
51 or more FTEs employed in U.S. and 15% or more are H-1Bs
FTE definition is at 20 CFR Sec. 655.736(a)(2)
If it is readily apparent that employer is not H-1B dependent, no need to do formal calculation
20. Public Access File Definition of a willful violator:
20 CFR Sec. 655.736(f)
A finding of violation by the employer is entered in either a DOL or DOJ enforcement proceeding; and
Agency finds that employer has committed either a willful failure or misrepresentation of a material fact during the 5 year period preceding the filing of the LCA; and
Agency’s finding is entered on or after October 21, 1998
21. Retention of Documents PAF must be retained for:
One year beyond last date on which H-1B worker is employed under LCA, OR
One year from the date the LCA expired or was withdrawn
20 CFR Sec. 655.760(c)
How to withdraw an LCA:
www.lca.doleta.gov, choose option to withdraw LCA
22. Retention of Documents Required payroll records for H-1B employees and other employees in the occupational classification must be retained for 3 years from date(s) of creation of record(s)
20 CFR Sec. 655.760(c)
DOL Employment & Training Administration
Maintains a national H-1B/LCA website
www.flcdatacenter.com/CaseH1B.aspx
23. Changes to Public Access File When H-1B worker is promoted to new position
If requirements of position are basically the same but salary is higher, no new LCA is required, but employer must document this wage change
Employer must determine actual and prevailing wages for new position to be sure it is paying the required wage rate, especially if rate changed
Employer must document that (new) required wage rate is being met
24. Additional Worksites If new or additional location is in same area of intended employment as on current LCA, post notices of LCA for 10 consecutive days at each new location on or before the day the H-1B worker begins work at that new location
If new/additional location is outside the area of intended employment on current LCA, need new LCA, new prevailing wage determination and new postings
PAF should be updated to include this new LCA and related supporting documentation
25. Public Access File Strategies to consider when creating a PAF:
Maintaining the PAF separate from the H-1B employee’s personnel file and from I-9 file
Maintaining a separate PAF for each H-1B employee/LCA, to limit access to files not specifically requested by requestor
Use of a “master file”
26. Enforcement Actions DOL’s Wage and Hour Division (WHD) enforces LCA requirements
Complaint may be filed against employer at any local WHD office
Complaint must be filed not later than 12 months after latest date on which alleged violation committed
After complaint is filed, WHD will determine within 10 days whether to investigate, and if it does, it will determine within 30 days whether to cite employer for LCA violations
WHD may investigate on its own initiative if it has reasonable grounds to believe that a violation occurred
27. Enforcement Actions Violations that the WHD may investigate:
Misrepresentation of a material fact on LCA
Failure to pay wages
Failure to provide working conditions as required
Filing of LCA during a strike or lockout in occupational classification at place of employment
Failure to provide notice of LCA as required
Failure to accurately complete the LCA
Displacement of a U.S. worker in the course of committing a willful violation
28. Enforcement Actions Violations that the WHD may investigate:
Requiring or accepting from H-1B worker the $500/$1,500 filing fees
Requiring or attempting to require H-1B worker to pay penalty for ending employment prior to an agreed upon date
Discriminating against H-1B worker for protected conduct
Failure to make PAF available for inspection as required
Failure to maintain required documentation
Failure to otherwise comply with provisions of the regulations
29. Enforcement Actions Violation Remedies
Failure to pay required wages or provide fringe benefits: payment of back wages or benefits
Civil money penalties:
Up to $1,000, $5,000 or $35,000 per violation depending upon which provisions were violated, and whether the violation was willful
WHD will consider the type of violation and other factors, such as previous violation history, number of workers affected, gravity of the violation, employer’s explanation of the violation(s), employer’s commitment to future compliance, employer’s good faith efforts to comply, etc.
30. Enforcement Actions Violation Remedies
Disqualification from approval of petitions
For up to 1, 2 or 3 years, depending upon the violations
DOL will notify DHS
Other administrative remedies:
Return of any money paid by employee in violation of provisions
Reinstatement of workers
Backpay
Other “appropriate legal or equitable remedies”
Possible criminal penalties in extreme cases
31. Thank you!