Delving Deeper Into H-1B for Specialized Workers

In today’s blog we are going to delve deeper into the category of H-1B for specialized workers. We’ll discuss some of the necessary components of the application, like the prevailing wage, the Labor Condition Application and the Public Access File.

The H-1B Process

Prior to filing an H-1B petition, there are a number of requirements an employer must fulfill. Specifically, a Prevailing Wage Determination must be made in accordance with U.S. Department of Labor regulations, and the Labor Certification Application must then be filed.

The Prevailing Wage, for H-1B purposes, is the rate being paid in similar positions in a particular metropolitan statistical area for the same occupation. The foreign worker cannot be paid less than the prevailing wage as determined by the Department of Labor.

The requirement of filing a certified Labor Condition Application (LCA) with all H-1B petitions was imposed by the 1990 Immigration Act. It serves two related purposes:  1) ensuring that U.S. wages are not depressed by the hiring of foreign labor, and 2) that foreign workers are not exploited. The employer makes specific representations regarding the conditions under which the foreign worker was hired and will be employed. These attestations are as follows:

• The employer will pay the required wage, which is the greater of the prevailing wage or the actual wage paid to other employees in the same position.

• The employment of H-1B workers will not adversely effect the working conditions of US workers.

• When the LCA was filed, there was no strike, lockout or other work stoppage because of a labor dispute.

• The H-1B worker will be given a copy of the LCA and the employer has notified the bargaining representative if the job is unionized, or if not, has posted a notice in a conspicuous place that an LCA was filed.

Anticipated processing time to obtain LCA certification is approximately five to 10 working days (not counting weekends or government holidays).

Notification and Posting Requirements 

Within the 30 days immediately preceding the filing of the LCA, an employer must post an “Intent to Hire an H-1B Worker” statement in two conspicuous locations at the workplace. The postings must remain displayed for a total of 10 consecutive business days. After the 10-day posting period has elapsed, the notice should be documented as to where and when it was posted, signed by a company official and retained in the Public Access File. The only exception to this rule is if the wage of the subject position is governed by a Collective Bargaining Agreement. If that is the case, please contact this office for alternate instructions.

Regulations also require that an H-1B worker be provided a copy of the signed, certified LCA once obtained.

Creation and Maintenance of the Public Access File

An employer must make documentation relating to the LCA available in a public access  file within one working day after the date of filing the LCA with the DOL. Any member of the public may request access to the file. The employer must make the file available to the requestor within one working day of the request.

These records must be retained for a period of one year beyond the last date on which any H-1B worker is employed under an LCA or if no H-1B worker was employed under an LCA, one year from the date the LCA expired or was withdrawn.

If you are an employer or employee looking to file H-1B status or find yourself in need of more information regarding H-1B for specialized workers, please contact one of our immigration attorneys today at (716) 634-1010 or visit www.berardiimmigrationlaw.com.

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