LCA and Public Access File Compliance

1. LCA and Public Access File Compliance UNC System Immigration Workshop Friday, November 7, 2008

2. Presenter Jill M. Guzman, Immigration Attorney International Employment Manager, NC State University (Human Resources) 2711 Sullivan Drive, Campus Box 7210, Raleigh, NC 27695 Direct: 919-515-4518 Fax: 919-515-7543 jill_guzman@ncsu.edu

3. Overview Brief H-1B and Labor Condition Application overview Compliance: Public Access (or Inspection or Examination) File Required contents Enforcement actions

4. Brief H-1B Overview Specialty occupation position requiring at least a bachelor�s degree in a specific field, or equivalent 6 year maximum period of stay, with exceptions for people at certain stages of the permanent residence process Early termination requires employer to pay �reasonable cost of return transportation� abroad Universities are exempt from 65,000 (+ 20,000 for advanced degrees) annual quota

5. Labor Condition Application CIS regulations require that the employer file a certified Labor Condition Application (LCA) with H-1B petition Certified by DOL after electronic filing of form ETA 9035E Can be valid for up to 3 years www.lca.doleta.gov DOL regulations concerning LCAs are found at 20 CFR Sec. 655.700 � 655.855

6. Labor Condition Application LCA contains 4 employer attestations: Payment of local actual wage or prevailing wage, whichever is higher (and offer of benefits on same basis as U.S. workers) No adverse affect on the working conditions of U.S. workers No strike or lockout in the occupational classification at place of employment Notice of LCA filing provided to bargaining representative or to affected workers via notices, and to H-1B nonimmigrant 20 CFR Sec. 655.731 � 655.734

7. Labor Condition Application 1st employer attestation: payment of local actual wage or prevailing wage, whichever is higher, and offer of benefits on same basis as U.S. workers For entire period of authorized employment, employer will pay required wage; no �benching� allowed � wages must still be paid Actual wage: rate paid to all other individuals with similar experience and qualifications at the place of employment Prevailing wage: from authoritative source meeting certain criteria; e.g. ESC (SWA) or OES online wage library Wage adjustment documentation must be maintained Wage requirement includes obligation to offer benefits and eligibility for benefits to H-1B workers on same basis as offered to U.S. workers

8. Labor Condition Application 2nd employer attestation: no adverse affect on the working conditions of U.S. workers H-1B worker receives same working conditions (on same basis and in accordance with same criteria) as U.S. workers Working conditions: hours, shifts, vacation periods, benefits (such as seniority-based preferences for training programs and work schedules)

9. Labor Condition Application 3rd employer attestation: no strike or lockout in the occupational classification at place of employment As of date the LCA is filed, employer is not involved in strike, lockout or work stoppage in course of labor dispute After certification of LCA: if strike or lockout occurs during validity of LCA, employer must notify DOL/ETA within 3 days Can�t move H-1B worker to such a worksite Can�t use that already certified LCA to bring on more H-1B workers

10. Labor Condition Application 4th employer attestation: notice of LCA filing provided to bargaining representative or to affected workers via notices, and to H-1B nonimmigrant Notice must be given on or within 30 days BEFORE the LCA is filed with DOL If no union rep: notices posted in at least 2 conspicuous locations for 10 consecutive days at place of H-1B worker�s employment On or before first day of work, employer must give H-1B worker a certified copy of the LCA signed by employer

11. Public Access File Employer is responsible for: Preparing, retaining and making available all required supporting documentation for LCA Creation of Public Access File (PAF) within one working day after the date the LCA is filed with DOL Keeping PAF at either the principal place of business or actual place of employment Providing access to PAF to any member of public who requests access to the file; doesn�t have to be an �aggrieved� or �interested� party Making file available to requestor within one working day of the request

12. Public Access File What every PAF must contain (per 20 CFR Sec. 655.760): 1. Copy of the certified LCA and cover pages If electronic version of LCA, a printout of the certified LCA must be signed by employer and included in PAF 2. Documentation providing the wage to be paid to the H-1B worker Offer letter, memo with wage amount, etc. Must be current � employer must update with salary adjustments

13. Public Access File What every PAF must contain: 3. A full, clear explanation of the system used by the employer to set the �actual wage� the employer has paid or will pay workers in the H-1B worker�s occupation, including any periodic increases Example (in regulations): memo summarizing the system or a copy of the employer�s pay scale/system Payroll records not required in PAF, but could be requested by DOL during an enforcement action

14. Public Access File What every PAF must contain: 4. Copy of documentation employer used to establish the �prevailing wage� for the H-1B worker�s occupation ESC determination, OES print-out, other survey source PAF only needs to contain a general description of the source and methodology Underlying individual wage data relied upon for the prevailing wage is not a public record

15. Public Access File What every PAF must contain: 5. Copy of the documents used by the employer to satisfy the union/employee notice requirement If no union, must include the two physical posting notices or memo 6. Summary of the benefits offered to U.S. workers in the same occupational classification as H-1B worker Need statement as to how any differentiation in benefits is made if not all employees are offered or receive the same benefits If applicable: statement that some/all H-1B workers are receiving �home country� benefits

16. Public Access File What every PAF must contain: 7. If applicable: Change in corporate structure � sworn statement by the responsible officer of the new employing entity that it accepts all obligations, liabilities and undertakings of LCAs of predecessor employer Also need a list of all affected LCAs and dates of certification(s) Also need a description of actual wage system and new FEIN (Federal Employer Identification Number)

17. Public Access File What every PAF must contain: 8. If applicable: Where employer uses the Internal Revenue Code definition of �single employer,� a list of any entities included as part of single employer in making determination as to its H-1B dependency IRC, 26 USC 414(b), (c), (m) or (o): All employees �within a controlled group of corporations� All employees of trades or businesses under common control All employees of members of an affiliated service group Will be treated as the employees of a single employer

18. Public Access File What every PAF must contain: 9. H-1B dependent and willful violator employer: a list of the �exempt� H-1B workers if employer indicates on LCA that only �exempt� workers will be employed 10. H-1B dependent OR willful violator employer: summary of the recruitment methods used and timeframes of recruitment for U.S. workers

19. Public Access File Definition of H-1B dependent: 20 CFR Sec. 655.736(a)-(e) An employer is �H-1B dependent� if it meets one of the following three standards: 25 or less FTEs employed in U.S. and 8 or more H-1Bs 26-50 FTEs employed in U.S. and 13 or more H-1Bs 51 or more FTEs employed in U.S. and 15% or more are H-1Bs FTE definition is at 20 CFR Sec. 655.736(a)(2) If it is readily apparent that employer is not H-1B dependent, no need to do formal calculation

20. Public Access File Definition of a willful violator: 20 CFR Sec. 655.736(f) A finding of violation by the employer is entered in either a DOL or DOJ enforcement proceeding; and Agency finds that employer has committed either a willful failure or misrepresentation of a material fact during the 5 year period preceding the filing of the LCA; and Agency�s finding is entered on or after October 21, 1998

21. Retention of Documents PAF must be retained for: One year beyond last date on which H-1B worker is employed under LCA, OR One year from the date the LCA expired or was withdrawn 20 CFR Sec. 655.760(c) How to withdraw an LCA: www.lca.doleta.gov, choose option to withdraw LCA

22. Retention of Documents Required payroll records for H-1B employees and other employees in the occupational classification must be retained for 3 years from date(s) of creation of record(s) 20 CFR Sec. 655.760(c) DOL Employment & Training Administration Maintains a national H-1B/LCA website www.flcdatacenter.com/CaseH1B.aspx

23. Changes to Public Access File When H-1B worker is promoted to new position If requirements of position are basically the same but salary is higher, no new LCA is required, but employer must document this wage change Employer must determine actual and prevailing wages for new position to be sure it is paying the required wage rate, especially if rate changed Employer must document that (new) required wage rate is being met

24. Additional Worksites If new or additional location is in same area of intended employment as on current LCA, post notices of LCA for 10 consecutive days at each new location on or before the day the H-1B worker begins work at that new location If new/additional location is outside the area of intended employment on current LCA, need new LCA, new prevailing wage determination and new postings PAF should be updated to include this new LCA and related supporting documentation

25. Public Access File Strategies to consider when creating a PAF: Maintaining the PAF separate from the H-1B employee�s personnel file and from I-9 file Maintaining a separate PAF for each H-1B employee/LCA, to limit access to files not specifically requested by requestor Use of a �master file�

26. Enforcement Actions DOL�s Wage and Hour Division (WHD) enforces LCA requirements Complaint may be filed against employer at any local WHD office Complaint must be filed not later than 12 months after latest date on which alleged violation committed After complaint is filed, WHD will determine within 10 days whether to investigate, and if it does, it will determine within 30 days whether to cite employer for LCA violations WHD may investigate on its own initiative if it has reasonable grounds to believe that a violation occurred

27. Enforcement Actions Violations that the WHD may investigate: Misrepresentation of a material fact on LCA Failure to pay wages Failure to provide working conditions as required Filing of LCA during a strike or lockout in occupational classification at place of employment Failure to provide notice of LCA as required Failure to accurately complete the LCA Displacement of a U.S. worker in the course of committing a willful violation

28. Enforcement Actions Violations that the WHD may investigate: Requiring or accepting from H-1B worker the $500/$1,500 filing fees Requiring or attempting to require H-1B worker to pay penalty for ending employment prior to an agreed upon date Discriminating against H-1B worker for protected conduct Failure to make PAF available for inspection as required Failure to maintain required documentation Failure to otherwise comply with provisions of the regulations

29. Enforcement Actions Violation Remedies Failure to pay required wages or provide fringe benefits: payment of back wages or benefits Civil money penalties: Up to $1,000, $5,000 or $35,000 per violation depending upon which provisions were violated, and whether the violation was willful WHD will consider the type of violation and other factors, such as previous violation history, number of workers affected, gravity of the violation, employer�s explanation of the violation(s), employer�s commitment to future compliance, employer�s good faith efforts to comply, etc.

30. Enforcement Actions Violation Remedies Disqualification from approval of petitions For up to 1, 2 or 3 years, depending upon the violations DOL will notify DHS Other administrative remedies: Return of any money paid by employee in violation of provisions Reinstatement of workers Backpay Other �appropriate legal or equitable remedies� Possible criminal penalties in extreme cases

31. Thank you!