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Update on the New LCA Form for H1Bs
Posted
Jan 07, 2001
In the December 29, 2000 MurthyBulletin, we announced that a new
version of the Labor Condition Application (LCA), which is also known as
Form ETA-9035, had been issued. We indicated that the new form would be
required from January 19, 2001 onwards. That prior
article described the
filing procedures for the new form. In the article below, we discuss the
content of the form and the accompanying instruction cover sheets. As we
mentioned previously, the new LCA form is being issued in accordance with
the American Competitiveness and Workforce Improvements Act of 1998 (ACWIA),
since we have finally seen the regulations of the U.S. Department of Labor
on ACWIA in late 2000.
Unlike the existing 2-page LCA, which can be filed for only one job
location, the new version includes two locations. Presumably, if the
professional will be working at more than two locations, it will be
necessary to file additional LCAs to cover all the locations.
As with the prior version of the LCA, all employers signing the new LCA now
attest to ALL of the following:
-
the H1B workers will be paid the higher of the
prevailing wage for the job in the locality or the actual wage paid to
other workers in similar positions at the company
-
any benefits will be offered to H1B workers on the same
basis as for the company's other workers
-
H1B workers will have similar working conditions to the
other workers at the company, and that working conditions provided to
the H1Bs will not have a negative impact on the working conditions of
other similar workers
-
there is no strike or lockout at the work location
-
notice of the LCA has been provided to the union
representative, if applicable, or otherwise to the other workers at the
company by posting at the worksite. A copy of the LCA must also be
provided to the H1B worker him- or herself.
Based on ACWIA, the wage attestation above is also
considered to include a promise that H1B workers will continue to be paid
during times that the employer keeps them "on the bench."
For
so-called “H1B dependent employers,” (defined below) under ACWIA, the
LCA provides for additional promises or “attestations” that must be
agreed to by the employer, namely that:
-
no
U.S. workers in similar positions have been or will be displaced within
90 days;
-
if
the worker will be placed at another employer site, the petitioner has
inquired of that other employer and found that no U.S. worker has been
or will be displaced within 90 days (if this displacement does take
place, the petitioning employer could be held liable);
AND
Please
note that the actual LCA has abbreviated versions of all the attestations,
to save space, but a detailed description of each attestation is included in
the instructions. The LCA includes a check box for the company official to
indicate that s/he has read the cover sheet and will comply with the
additional attestations.
To remind our MurthyBulletin
readers : An H1B dependent employer is defined in ACWIA as follows: an
employer with 1-25 full time employees, of which more than 7 are H1B
employees; or 26-50 employees of which more than 12 are H1B employees; or
over 50 employees if 15% or more are H1Bs.
If the beneficiary holds a
Masters degree in a relevant field or will be paid $60,000 or more, then the
H1B beneficiary qualifies as “exempt” from being considered an H1B
employee for the definition of an H1B dependent employer. For the first six
months after issuance of the regulations, such H1B employees are not counted
in the "dependent" calculation. Thus, unless the employer exceeds
the numbers set forth for H1B dependent employer with other employees, the
additional attestations for H1B dependent employers are not required. After
that six-month period, the employer would be exempt from the
"dependent" attestations when filing for an exempt employee, but
would be subject to them when filing for other employees. If a dependent
employer is filing for an exempt employee, the employer marks box
"C" in the section of the LCA that asks whether the employer is
dependent. Box "C" states that the employer is dependent, but is
using this LCA for exempt employees only.
For a beneficiary who appears to qualify for one of the “EB-1"
immigrant categories, the recruitment attestations would not apply; such an
employee would be exempt from being considered an H1B employee for purposes
of the H1B dependent employer definitions. The law is unclear with respect
to the type of proof required to demonstrate that the beneficiary could
qualify for that exception.
©
The
Law Office of Sheela Murthy, P.C.
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