Immigration Compliance at CUA

Responsibilities of an Institution Hiring H-1B Professionals

A.  Filing the Labor Condition Application (LCA)

The first step in hiring an individual on an H-1B basis is to file a Labor Condition Application (LCA) with the Department of Labor (DOL).  The LCA can be filed either electronically at the DOL ETA Foreign Labor Certification Page or vis fax to the regional office of the DOL Employment and Training Administration that serves the area where the nonimmigrant will be employed.  The electronically submitted LCAs are returned certified within minutes. For those not wishing to file electronically, the  Form ETA 9035CP, contains instructions for filing the LCA .  The LCA must be filed no earlier than six months prior to the starting date of the employment period identified on the LCA, and no later than 90 days from the date of any State Employment Security Agency (SESA) prevailing wage determination used in the LCA.

The Department of Labor must review Form ETA 9035 and certify an LCA for the occupational category requested before the employer can file a petition for H-1B classification.  Certification simply means that the DOL has determined that the application is not incomplete and does not contain obvious inaccuracies.  The employer bears the burden of establishing the truthfulness of the information contained in the LCA if it is challenged.  Once certified, the LCA is good for the period of employment specified on the form, not to exceed three years.

Form ETA 9035 must have the following:

• the occupational code for the job from the DOL's Dictionary of Occupational Titles;

• the employer's title for the job;

• the number of H-1B workers sought in that classification;

• the gross wage rate of pay;

• the prevailing wage rate and the source of that rate;

• the period of employment (up to three years); and

• the place of the intended employment.

The National Association of Foreign Student Advisors (NAFSA) advises filing separate LCAs for each individual job opportunity.  See the NAFSA 2001 practice advisory on the Dec. 2000 DOL interim final rule. Also, the employer may not substitute one alien for another on the LCA.

Determining the actual and prevailing wage

For purposes of determining the actual wage, the employer must make and retain a statement documenting the existence and use of an objective system to determine the wages of H-1B workers.  An average wage is not good enough.  The process must consider the length and type of work experience of other employees in the position, and compare that to the experience of the alien, the similarity of job qualifications, educational background, and class rank, job responsibilities and duties, and specialized knowledge in the field.  If there are no other similarly situated individuals, the actual wage will be the wage paid to the H-1B.

The prevailing wage can be determined by looking at the union contract, if any, or by contacting the State Employment Security Agency (SESA), a state government agency that conducts and maintains prevailing wage rate surveys.   Forms are available at the SESA for requesting a determination.  The LCA must be filed within 90 days of the SESA determination. The union contract and the SESA wage determination provide employers with a "safe harbor" that protects them in the event of a Department of Labor audit.  However, employers can use independent wage survey may be used provided it meets Department of Labor criteria found at 20 CFR 655.731(b)(3)(iii)(B):

B) A copy of the prevailing wage survey for the occupation within the area of intended employment published by an independent authoritative source. For purposes of this paragraph (b)(3)(iii)(B), a prevailing wage survey for the occupation in the area of intended employment published by an independent authoritative source shall mean a survey of wages published in a book, newspaper, periodical, loose-leaf service, newsletter, or other similar medium, within the 24-month period immediately preceding the filing of the employer's application. Such survey shall:
(1) Reflect the weighted average wage paid to workers similarly employed in the area of intended employment;
(2) Be based upon recently collected data -- e.g., within the 24-month period immediately preceding the date of publication of the survey; and
(3) Represent the latest published prevailing wage finding by the independent authoritative source for the occupation in the area of intended employment; or
(C) A copy of the prevailing wage survey or other source data acquired from another legitimate source of wage information that was used to make the prevailing wage determination. For purposes of this paragraph (b)(3)(iii)(C), a prevailing wage provided by another legitimate source of such wage information shall be one which:
(1) Reflects the weighted average wage paid to workers similarly employed in the area of intended employment;
(2) Is based on the most recent and accurate information available; and
(3) Is reasonable and consistent with recognized standards and principles in producing a prevailing wage.

 When signing the Form ETA 9035, the employer is certifying that it will pay the H-1B no less than the actual wage or the prevailing wage, whichever is higher.

Note that by describing the job classifications and duties as carefully as possible, and dividing same into subclasses, may save the employer from having to pay penalties for not paying what has been determined to be the prevailing wage for a tenured professor, but which is in fact inapplicable to a recently hired assistant professor.

The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) (Pub. L. No. 105-277, 112 Stat. 2681) changed the methodology applicable to determining prevailing wages for both the H-1B program, and the permanent labor certification program.  See 64 Fed. Reg. 628 (Jan. 5, 1999).  Under these provisions, institutions of higher education (IHE) are grouped together with other nonprofits for purposes of determining the prevailing wage.  The ACWIA applies to all occupations in which an IHE may want to hire an H-1B, and is not limited to just researchers.  The universe of included groups for prevailing wage determinations includes IHE's, research organizations related to IHEs, other nonprofit research organizations and governmental research organizations.  The interim final regulations were published by the Employment and Training Administration of the Department of Labor at 65 Fed. Reg. 80,110 (Dec. 20, 2000).

Notice requirements

A required part of the process of filing the LCA is giving notice to all employees in the area of intended employment that the LCA has been filed.  The notice must be posted for 10 days in at least two conspicuous locations where the H-1B will be employed.  The notice must be posted on or within 30 days before the LCA is filed, and must indicate that H-1B non-immigrants are sought, the number being sought, the occupation classification, wage offered, period of employment, and location where employed.  The notice must further state that the LCA is available for public inspection.  An employer must make available for public inspection all LCAs and supporting documentation within one day after they are filed.  Pursuant to ACWIA, an employer may use electronic communications as an alternative to posting hard copy notices.  For more details, see our Summary of Federal Laws: The Immigration and Nationality Act of 1952. The notice must also include the following statement:  "Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the U.S. Department of Labor."

A box on the Form ETA 9035 certifying that all the above has been done by the employer must be checked.

Other statements required on LCAs

An employer filing an LCA must also certify that employment of H-1Bs will not adversely affect the working conditions of workers similarly employed in the area of intended employment.  The employer must also certify that there is not at the time of filing a strike or lockout in the course of a labor dispute at the place of employment.  See 20 C.F.R. §§ 655.732 and 655.733.

Questions and answers about LCAs

Who needs an LCA?  An employer hiring nonimmigrant workers entering the U.S. on H-1B visas.

What should be submitted?  One completed and dated original Form ETA 9035 containing the labor condition statements set forth above, bearing the employer's original signature, or that of an authorized agent or representative, and one copy of the completed and dated form.  If sent by fax, the application containing the original signature shall be maintained by the employer.  If filed electronically, no signture is required prior to submission.  However, a certified LCA with original signature must be filed with the Form I-129 and another certified LCA with original signature must be kept in the employer's public inspection file.

How long is the LCA valid?  The certified LCA is valid for the period of employment indicated on Form ETA 9035, not to exceed three years.  If job duties change significantly, or the department or lab is changed, a new LCA may need to be filed, along with an amended visa application.

What records must be made available to the public?  Within one working day after the LCA is filed with the DOL, the following documents shall be made available to the public:

• a copy of the completed LCA;

• documentation which provides the wage rate to be paid the H-1B or TN-1 nonimmigrant;

• a full clear explanation of the system the employer used to set the actual wage;

• a copy of the documentation the employer used to establish the prevailing wage for the occupation, i.e., source and methodology (the underlying individual wage data need not be made available to the public);

• a copy of the document with which the employer satisfied the union/employee notification requirements; and

• the file must be updated to reflect any salary increase and, if necessary, a new prevailing wage determination added.

What additional records must be available for inspection by the Department of Labor?  In addition to the documents that are in the public inspection file, the following documents must be kept in a file and produced upon request by the Department of Labor:

• records showing the wages of similarly employed workers at the time of filing;

• data used to establish the actual wage rate for the H-1B nonimmigrant;

• any documents that support the prevailing wage determination;

• documentation of working conditions; and

• evidence of notification to the H-1B nonimmigrant.

These records should be maintained by the same office that maintains the public inspection file.