The H-1B visa program permits a United States employer (“employer”) to temporarily employ nonimmigrants to fill specialized jobs in the United States. The Immigration and Nationality Act (the “INA” or the “Act”) requires that an employer pay an H-1B worker the higher of the actual wage or the local prevailing wage, in order to protect U.S. workers and their wages. Under the Act, an employer seeking to hire a foreign national in a specialty occupation on an H-1B visa must receive permission from the Department of Labor (“DOL”) before the foreign national may obtain an H-1B visa. The Act defines a “specialty occupation” as an occupation requiring the application of highly-specialized knowledge and the attainment of a bachelor’s degree or higher. The Act requires an employer seeking permission to employ an H-1B worker to submit and receive an approved Labor Condition Application (“LCA”) from the DOL.
The employer should be extremely cautious in making attestations on the LCA and complying with the regulations governing it. Knowingly and willingly furnishing any false information in the preparation of the LCA and any supporting documentation, OR even aiding, abetting, or counseling another to do so is a federal offense, punishable by fine or imprisonment up to five (5) years or both. Other penalties may also apply to the fraud or misuse of the LCA and to the perjury with respect to the ETA 9035.
Where and When Should Employers Post Notice of the LCA?
The notice requirement of an LCA mandates that employers post notice of their intent to hire nonimmigrant workers. An H-1B employer must provide notice of the filing of an LCA. When there is a collective bargaining representative for the occupation in which the H-1B worker will be employed, the employer must provide such notice to that collective bargaining representative by way of a copy of the LCA or other document which contains all the required information.
When there is no bargaining representative, the employer must provide such notice in one of the two following manners. A hard copy notice of the filing of the LCA must be posted in two conspicuous locations at each place of employment where any H-1B nonimmigrant will be employed (whether such place of employment is owned or operated by the employer or by some other person or entity). Alternatively, the electronic notice of the filing of the LCA may be posted by providing electronic notification to employees in the occupational classification (including both employees of the H-1B employer and employees of another person or entity which owns or operates the place of employment) for which H-1B nonimmigrants are sought, at each place of employment where any H-1B nonimmigrant will be employed. Further, the H-1B employer is required to post notice on or within 30 days before the date the labor condition application is filed and should remain posted for a total of 10 days.
In situations involving H-1B workers working at end-site users (third party placements), it is the duty of an H-1B employers to post the notice of filing of the LCA at the secondary sites. Even if the H-1B employer makes a good faith attempt to post notice but the end-site user refuses to post notice at its worksite, the H-1B employer will be found to have substantially and willfully violated the law. The end-site users have no obligation under the Act to post the notice.
Additionally, the posting requirement mandates that employers note and retain the dates when, and locations where the notice was posted and to retain a copy of the posted notice.
Additional Obligations for H-1B Dependent Employers and Willful Violators.
An employer is considered H-1B dependent if it has: 25 or fewer full-time equivalent employees and at least eight (8) H-1B nonimmigrant workers; or 26 – 50 full-time equivalent employees and at least 13 H-1B nonimmigrant workers; or 51 or more full-time equivalent employees of whom