Employers that bring nonimmigrant workers into the United States using a visa such as the H-1B must complete a Labor Condition Application (LCA), submit it to the Department of Labor (DOL), and have it approved. If the application is not properly submitted, or it is not approved, then the non-immigrant workers will not be permitted to work until this takes place.
In the application, there are four main items that the employer must attest to in order to be approved. Each of the four following items must be affirmed, or the application will not be approved by the DOL.
Attest to Paying Nonimmigrants Fair Wages
The first thing that employers must attest to is that they will pay the nonimmigrants that are working for them a fair pay rate. The pay rate must be the higher rate of either the average wage for the same or similar job in that area OR the average pay rate for other people doing a similar job within the company.
Attest to No Adverse Impact to Existing Employees
Next, the employer has to confirm that hiring H-1B nonimmigrants (or those on other qualifying visas) will not cause a negative effect in the current working conditions of those already working with the company in similar roles. To put it simply, the current employees doing the job won’t be laid off or transferred to other jobs within the company in order to make room for H-1B employees.
Attest to No Labor Issues
Employers must be able to state that as of the time when the paperwork is completed and turned in, there is no labor disputes going on (strikes, lockouts, work stoppages, ect). In the event that some type of labor problem occurs after the documents are submitted, the employer is required to notify the Electronic Travel Authority within no more than three days.
Attest to Informing Employees
Employers are required to notify their current workforce of the LCA. Typically, this is done by putting up the application in a public place and alerting people to its presence. In addition to notifying existing employees, the nonimmigrant employees who will be working must also be informed by their first day of work at the latest.
Get the Labor Condition Application Reviewed
The best way to avoid the risk of having the application denied is to have an immigration attorney review it before it is submitted to the Department of Labor. Experienced business immigration attorneys like those at FordMurray Law can often identify problems with the application so they can be addressed before submitting, which will help to avoid wasted time. Give us a call today to learn more!
