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Work from Home and H-1B Visa Lottery in the context of complying Labor Condition Application (LCA) Regulations for H-1B Employers 

Posted by Keshab Seadie | Jan 13, 2022 | 0 Comments

Work from Home and H-1B Visa Lottery in the context of complying Labor Condition Application (LCA) Regulations for H-1B Employers 

If an H-1B employee is assigned to another worksite located within the same “area of intended employment” (within normal commuting distance/about 50 mile radius), the original LCA must be posted at that location for a ten day period in two conspicuous locations and there is no need to file a new LCA or an amended H-1B petition. However, if the employee has moved or going to work at a new job site which is outside of the MSA or normal commuting distance then a new LCA and amended H-1B petition must be filed. Due to the COVID-19, the DOL has been liberal in interpreting the commuting distance rule and has not penalized the H-1B employers whose H-1B workers have been working from home without filing a new LCA or amended H-1B petition so long as the old LCA has been posted at the employee's residence. 

The Labor Condition Application, Form ETA 9035, is an integral part in the H-1B application process. This form must be certified by the U.S. Department of Labor and included with the initial H-1B submission. In this application, the employer is required to attest: (1) that it will pay H-1B aliens prevailing wages or actual wages, which ever is greater; (2) that it will provide working conditions that will not adversely affect the working conditions of U.S. workers similarly employed; (3) that there is not a strike or lockout at the place of employment; and (4) that it has publicly notified its employees of its intent to employ H-1B workers. In addition, the employer must provide the information required in the application about the number of aliens sought, occupational classification, wage rate, the prevailing wage rate and the source of such wage data, the date of need and period of employment. Moreover, the LCA is specific to the employer and not to any future employee. The LCA authorizes the employer to hire any H-1B holder for specified work/job profile for a specific location.

Employer Labor Conditions Statements

The employer must read and agree to statements (1) through (4) below and demonstrate that agreement by marking “Yes” in Section F of Form ETA 9035 and by signing the application form. The employer agrees to develop and maintain documentation supporting labor condition statements (1) and (4) as specified in 20 CFR 655.731 and 655.734, and to make this documentation available to DOL officials upon request. The employer also agrees to make available for public examination a copy of the labor condition application and necessary supporting documentation as specified in 20 CFR 655.760 within one (1) working day after the date on which the application has been filed with DOL. This documentation must be retained for public examination at the place of employment or the employer's principal place of business, as specified in Item H.

  1. Wages: The employer attests that H-1B, H-1B1, or E-3 nonimmigrants will be paid wages which are at least the higher of the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question or the prevailing wage level for the occupational classification in the area of intended employment. By marking “Yes” in section F, the employer also attests that it will pay these nonimmigrants the required wage for time in nonproductive status due to a decision of the employer or due to the nonimmigrant's lack of a permit or license. The employer further attests that these nonimmigrants will be offered benefits and eligibility for benefits on the same basis and in accordance with the same criteria, as offered to U.S. workers.
  1. Working Conditions: The employer attests that the employment of H-1B, H-1B1, or E-3 nonimmigrants in the named occupation will not adversely affect the working conditions of workers similarly employed. The employer further attests that nonimmigrants will be afforded working conditions on the same basis and in accordance with the same criteria, offered to U.S. workers.
  1. Strike, Lockout, or Work Stoppage: The employer attests that on the date the application is signed and submitted, there is not a strike, lockout or work stoppage in the course of a labor dispute in the named occupation at the place of employment and that, if such a strike, lockout, or work stoppage occurs after the application is submitted, the employer will notify ETA within three (3) days of such occurrence and the application will not be used in support of a petition filing with USCIS for H-1B, H-1B1, or E-3 nonimmigrants to work in the same occupation at the place of employment until ETA determines the strike, lockout, or work stoppage has ceased.
  1. Notice: The employer attests that as of the date of filing, notice of the labor condition application has been or will be provided to workers employed in the named occupation. Notice of the application shall be provided to workers through the bargaining representative, or where there is no such bargaining representative, notice of the filing shall be provided either through physical posting in conspicuous locations where the H-1B, H-1B1 or E-3 nonimmigrants will be employed or through electronic notification to employees in the occupational classification for which nonimmigrants are sought. The employer also attests that each nonimmigrant employed pursuant to the application will be provided with a copy (or original, as appropriate) of the certified Form ETA 9035 and provided with a copy of ETA 9035CP if requested. As stated above, for H-1B1 or E-3 nonimmigrants, the employer must provide the certified Labor Condition Application to the nonimmigrant, who must follow the H-1B1 or E-3 procedures of USCIS and the Department of State. This notification shall be provided no later than the date the nonimmigrant reports to work at the place of employ

Failure to comply with the regulations governing LCA applications may result in penalties to the company. Therefore, it is imperative that companies strictly comply with the following requirements.

  1. LCA POSTING REQUIREMENTS:

Electronically/ Web-Filed LCAs: By the time you receive the web-filed LCA you will have already started the posting process of the notice of filing for the LCA in two conspicuous locations for 10 business days at each place of employment where the nonimmigrant will be employed. Appropriate posting locations include, but are not limited to, locations in immediate proximity of wage and hour notices or occupational safety and health notices.

  1. PUBLIC INSPECTION FILES TO BE MAINTAINED BY THE EMPLOYER:

A separate Public Inspection file for each H-1B applicant must be maintained for a period of one year beyond his/her last date of employment under the LCA, or if no nonimmigrants were employed under the LCA, one year from the date the LCA expired or was withdrawn. The Public Inspection file must contain:

  • A copy of the signed certified LCA (the certified LCA will be provided to you for signature);
  • Documentation which provides the wage rate to be paid the H-1B nonimmigrant (i.e. offer letter, contract, etc.);
  • A wage memorandum containing a full, clear explanation of the system that you use to set the “actual wage” that you have paid or will pay workers in the occupation for which the H-1B nonimmigrant is sought, including any periodic increases which the system may provide-e.g., memorandum summarizing the system or a copy of your pay system or scale (payroll records are not required, although they shall be made available to the Department in an enforcement action).
  • A copy of the documentation that you used to establish the “prevailing wage” for the occupation for which the H-1B nonimmigrant is sought (a general description of the source and methodology is all that is required to be made available for public examination; the underlying individual wage data relied upon to determine the prevailing wage is not a public record, although it shall be made available to the Department in an enforcement action). We will provide you with the documentation establishing the “prevailing wage”;
  • A copy of the document(s) with which you have satisfied the union/ employee notification requirements;
  • A summary of the benefits offered to U.S. workers in the same occupational classifications as H-1B nonimmigrants, a statement as to how any differentiation in benefits is made where not all employees are offered or receive the same benefits (such summary need not include proprietary information such as the costs of the benefits to the employer, or the details of stock options or incentive distributions), and/or, where applicable, a statement that some/ all H-1B nonimmigrants are receiving “home country” benefits;
  1. SATISFYING THE WAGE:

Employers are required to pay the greater of the actual wage or the “prevailing wage” for the occupational category. To document that the employer has met the required wage, wages must be shown to be:

  • Categorized in payroll as earnings and disbursed to employees as “cash in hand, free and clear” unless it is to be an “authorized deduction”;
  • Reported to the IRS, state and local tax authorities as earnings; and
  • Declared as FICA earnings.

(Note: If an employer intends to use a form of nondiscretionary pay to supplement regular pay, it must show that the required wage was met for pay periods prior to the disbursement of that payment and that it will continue to be met for future periods.)

  1. DISTRIBUTION OF LCA TO EACH H-1B EMPLOYEE:

You must provide a copy of the signed LCA to each H-1B nonimmigrant no later than the date that the H-1B nonimmigrant reports to the place of employment. Each H-1B worker must sign notification that he/she has received this notice.

  1. NEW EMPLOYMENT SITES:

The 2015 Simieo Memo as well as the LCA regulations strictly limit an employer's ability to move an H-1B employee to a worksite not listed on the Labor Condition Application. An employer's short-term placement(s) or assignment(s) of H-1B nonimmigrant(s) at any worksite(s) in an area of employment not listed on the employer's approved LCA(s) shall not exceed a total of 30 workdays in a one-year period for any H-1B nonimmigrant at any worksite or combination of worksites in the area, except that such placement or assignment of an H-1B nonimmigrant may be for longer than 30 workdays but for no more than a total of 60 workdays in a one-year period where the employer is able to show the following:

  • The H-1B nonimmigrant continues to maintain an office or workstation at his/her permanent worksite (e.g., the worker has a dedicated workstation and telephone line(s) at the permanent worksite);
  • The H-1B nonimmigrant spends a substantial amount of time at the permanent worksite in a one-year period; and
  • The H-1B nonimmigrant's S. residence or place of abode is located in the area of the permanent worksite and not in the area of short-term worksite(s) (e.g., the worker's personal mailing address; the worker's lease for an apartment or other home; the worker's bank accounts; the worker's automobile driver's license; the residence of the worker's dependents). The employer may not make short-term placement(s) or assignment(s) of H-1B nonimmigrant(s) at worksite(s) in any area of employment for which the employer has a certified LCA for the occupational classification. Further, an H-1B nonimmigrant entering the U.S. is required to be placed at a worksite in accordance with the approved petition and supporting LCA; thus, the nonimmigrant's initial placement or assignment cannot be an area of employment in a manner that would defeat the purpose of the short-term placement. In addition, the employer may not continuously rotate H-1B nonimmigrants on short-term placement or assignment to an area of employment in a manner that would defeat the purpose of the short-term placement option, which is to provide the employer with flexibility in assignments to afford enough time to obtain an approved LCA for an area where it intends to have a continuing presence (e.g., an employer may not rotate H-1B nonimmigrants to an area of employment for 20-day periods, with the result that nonimmigrants are continuously or virtually continuously employed in the area of employment, in order to avoid filing an LCA; such an employer would violate the short-term placement provisions).

Once any H-1B nonimmigrant's short-term placement or assignment has reached the workday limit in an area of employment, the employer shall take one of the following actions:

  • File an LCA and obtain certification, and thereafter place any H-1B nonimmigrant(s) in that occupational classification at worksite(s) in that area pursuant to the LCA (i.e., the employer shall perform all actions required in connection with such LCA, including determination of the prevailing wage and notice to workers); or
  • Immediately terminate the placement of any H-1B nonimmigrant(s) who reaches the workday limit in an area of employment. No worker may exceed the workday limit within the one-year unless the employer

first files an LCA for the occupational classification for the area of employment. Employers are cautioned that if any worker exceeds the workday limit within the one-year period, then the employer has violated the terms of its LCA(s) and the regulations and thereafter the short-term placement option cannot be used by the employer for H-1B nonimmigrants in that occupational classification in that area of employment.

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