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Government Crackdowns on Recruiters and HR Departments: H-1B forms and the Labor Condition Application (LCA)

Posted by Afton Funk

May 5, 2011 2:33:00 PM

The Department of Labor (DOL) has found a new weapon of choice for cracking down on non-compliance in employers: the H-1B form.  In early April the DOL asserted claims of nearly $7 million in back-wages and civil money penalties against Maryland’s Prince George’s County Public Schools.  The DOL raised issue with the school district’s requiring 1,044 H-1B visa teachers to pay program filing fees, which effectively decreased teachers’ wages below the wage rate mandated by the Labor Condition Application (LCA).

The H-1B visa allows aliens to assume temporary professional/specialty job roles, otherwise known as non-immigrant status, for U.S. employers.  Non-immigrant roles typically include science, engineering and teaching related jobs.  When applying to process an H-1B visa, employers must also fill out an LCA, which basically assures that the hiring of a non-immigrant into a U.S. workplace will benefit both the employer and employee and will not do any harm to existing U.S. employees in that workplace.  Specific requirements for the LCA are as follows:

  • Non-immigrants will be paid the prevailing wage set by the DOL, determined by job duties and employment location.
  • Working conditions of non-immigrant workers must not adversely affect the working conditions of U.S. workers in the same workplace.  Working conditions include hours worked, vacations nd benefits.
  • There are no strikes, lockouts or work stoppages taking place when the application is filed.
  • Adequate notification is given to U.S. employees that the employer intends to hire an H-1B non-immigrant worker and file an LCA.  Notification can either be given through a worker representative or by physically posting notifications of the employer’s intended actions

One unfair aspect of these LCA requirements is that there is currently no set methodology for determining the “prevailing wage” for a specific role.  It is unfair because the DOL can fine employers for improper interpretation of prevailing wage but gives no formal guidance on finding it.  Lucky for you, the HRM Direct team has compiled a list of pointers that is sure to please any nosy DOL auditor and will keep your business in the good graces of the government.

1. Get a Prevailing Wage Determination (PWD) from the OFLC’s National Prevailing Wage Center (NPWC).

To request a PWD from the NPWC, complete an ETA form 9141 here and mail it to:

U.S. Department of Labor
Employment and Training Administration
National Prevailing Wage and Helpdesk Center
Attn: PWD Request
1341 G Street, NW Suite 201
Washington, DC  20005-­314

2. Check to see if any Collective Bargaining Agreements (CBA) exist that cover wages for your employees’ position

The DOL provides a comprehensive list of CBAs here.

3. Consult the Online Wage Library of the Foreign Labor Data Certification Center.

The library is online and quick and easy to use.  It also allows you to see different wage rates by region.  Check it out here.

4. If all else fails, consult the government itself

The Bureau of Labor Statistics (BLS)  is an excellent resource for looking up wage statistics.  Of particular interest to those of you filling out LCAs is the BLS’ Occupational Employment Statistics section.

The government takes the hiring of H-1B non-immigrant employees very seriously.  If you do decide to embark on this route of hiring, make sure that you know exactly the legal obligations you take on.  As always, good luck!

Topics: Compliance, H-1B

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