The H-1B visa category allows U.S. employers to temporarily employ foreign workers in specialty occupations. Each federal fiscal year, there is a cap of 65,000 visas/status grants available for bachelor-level H-1Bs (“Regular Cap”), or a cap of 20,000 for advanced-degree H-1Bs (“Master’s Cap”). If an organization wants to hire an H-1B worker, following the program’s requirements to the letter is critical.
Prior to submission of an H-1B petition, a petitioning employer must file a Labor Condition Application (“LCA”) with the U.S. Department of Labor. The LCA requires employers to make certain attestations. Failure to comply can result in civil or criminal liabilities as well as monetary fines.
With limited exceptions, the below is a summary of 4 of the required attestations:
Employers must give H-1B workers the same pay and benefits as other similarly situated employees. To be sure this occurs, the LCA requires employers to pay either the actual wage or the prevailing wage, whichever is higher. As its name suggests, the actual wage is however much others in the organization earn for performing the same job duties. The prevailing wage, by contrast, comes from salary data compiled by the DOL.
- Working conditions
H-1B workers must be afforded the same working conditions as U.S. worker employees who are similarly employed, and the H-1B employment may not adversely affect the working conditions of other employees. That is, a company may not hire a foreign worker if doing so infringes on the work schedules, vacation time, ancillary benefits or other working conditions.
- Labor disputes
An employer in the United States may not bring in an H-1B worker to break up a strike or any other type of labor dispute. Accordingly, when filing an LCA, employers must affirm that there are no related labor disputes (i.e. strike, lockout, or work stoppage) in the occupational classification in the intended area of employment.
- Posting/Notice of Filing
Finally, an employer has an obligation to notify existing workers of an intention to hire an H-1B employee. The methods to provide effective notice depends on the situation of the petitioner employer.
To comply with federal law, employers should read and understand the attestations on the LCA before signing.
Our experienced attorneys are available to assist you in preparing and submitting the LCA, and are available to answer your questions concerning the attestations.
This information is not intended to constitute legal advice nor does it create an attorney-client relationship between Law Offices of Robert P. Gaffney and anyone else. This information is not intended to be used as a substitute for specific legal advice based on an individual or organization’s particular facts and circumstances, and it should not be considered as such.