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Frequently Asked Questions Employers Have About the Department of Labor’s Role in the H-1B Process
DOL is involved in the H-1B process before the employer files the H-1B petition with USCIS. DOL adjudicates employers’ Prevailing Wage Application, Labor Condition Application, and may get involved in the audit/enforcement process after the petition is approved.
What is a Labor Condition Application (LCA)?
All employers must file a Labor Condition Application with DOL specifying conditions of H-1B employment such as location, wages, time period of expected employment, and other conditions as required by DOL. The employer may file its H-1B Petition with USCIS only after DOL has certified the LCA, and after notice of filing of the LCA has been posted by the Employer for ten days, and a copy of the signed, certified application has been provided to the H-1B candidate.
The employer’s authorized representative signing the LCA on behalf of the employer should not do so casually. The LCA is a several page document with 15 pages of instructions in which the employer sometimes promises to provide work conditions beyond what is normally provided by the same employer to U.S. workers. For example, “benching” a U.S. worker between projects may be acceptable, but the same practice is prohibited for H-1B workers with valid LCAs signed by their employer. It is important to take time to read and understand the LCA and go over the LCA with the attorney before signing it.
What is Safe Harbor and How do I get It: Prevailing Wage Application and “Safe Harbor”
Employers who desire a “safe harbor” regarding wages to be paid to the H-1B worker should obtain a Prevailing Wage Determination from DOL. The prevailing wage rate determines the minimum amount that the H-1B worker should be paid based on the job description filed with DOL by the employer. If DOL challenges the H-1B employer regarding the wage, a previously-issued prevailing wage determination provides a safe harbor to the employer, if the employer is paying the wage per determination.
DOL determines wage levels based on the information provided by the employer on the Prevailing Wage Determination Application (ETA 9141). Employer provided information addresses the specific job duties, minimally required education, skills, and experience requirements, level of supervision, hours, and location of the job. Employers sometimes use generic job descriptions or “best case scenario” descriptions that do not reflect the true minimum requirements for the specific job offered to the H-1B candidate. Filing the application with such general or “best-case scenario” desirable requirements often results in DOL issuing prevailing wages at a higher level than the employer actually pays to its similarly situated U.S. workers.
Please note that the wage will depend on several factors, such as minimum requirements for the job, level of supervision, travel requirements, as well as location of the job. DOL updates prevailing wages at least once a year.
What Happens After Filing LCA and H-1B Petition: DOL Audits and Enforcement
DOL may audit H-1B employers to make sure that employers provide conditions listed on the Labor Condition Application (LCA) to their H-1B workers. This is through a public access file review or general review of the H-1B employment scenario. DOL often looks for LCA violations involving benching and wage and hour irregularities. Benching is a prohibited practice: it involves employers not paying workers for non-productive time between projects. Wage and hour irregularities may stem from benching, or from employers’ failure to pay the prevailing wage. One of the potential violations is also job misclassification where the employer fails to correctly determine the appropriate DOL classification for the job which results in paying the wrong wage.
This is, of course, not an exhaustive list of DOL’s involvement in the work visa process, but gets to the basic nuts and bolts of what employers need to know. We provide more on this in our H-1B Training and Public Access File Trainings. You can sign up for these here: H-1B Visa Training
Danielle Atchison
Business Immigration Attorney
MDIVANI CORPORATE IMMIGRATION LAW FIRM
NOT LEGAL ADVICE: This article is for educational purposes only, it is not legal advice that may be applicable to our situation
The information provided here does not constitute legal advice. It is general information regarding law and policy that may be applicable to your particular HR issue or legal problem. Information provided in this blog, or any of our other public posts, does not create an attorney-client relationship. For specific advice you can rely upon, please contact your attorney