Ongoing H-1B Employer Obligations

In addition to its obligation to maintain a public inspection file as well as other supporting documentation, the employer has several other ongoing obligations with the regard to the labor condition application procedure. First , the employer must continue to pay the H-1B worker the required wage rate throughout the period of validity of the LCA. If the required wage rate is based on the prevailing wage, the employer need take no further action during the validity period, because the prevailing wage determination does not need to be updated during the three-year period of validity of the LCA. If the required wage rate is based on the actual wage, however, the employer must assure that the H-1B worker will continue to be paid the actual wage throughout the LCA validity period. Therefore the H-1B worker must receive any normal increases in the wage rate paid by the employer .

Second , the employer must notify the DOL , within the three days, of the commencement of a strike or a lockout during the validity period of the LCA. The notice requirement applies only to strikes or lockouts involving the employer's employees in the occupation at the same place of employment as the H-1B worker.

Third , the employer must undertake additional steps if an H-1B worker travels to location away form a work site listed in the original LCA. For additional work sites within an area of employment listed on the LCA, the employer must meet the LCA requirements ( notice to a bargaining representative or posting of two notices of the LCA at the work site ). For additional work sites outside of an area of employment listed on the original LCA, the employer must file a new LCA such as obtaining a prevailing wage determination and meeting the notice requirement.

Note that certain employers will have additional monitoring obligations under legislation enacted in 1998.These employers include "H-1B dependent" employers and employers found to have committed certain labor condition application (LCA) violations. Under the H-1B Act, such employers are subject to new attestation requirements relating to the displacement and recruitment of U.S. workers. First , employers on the borderline of H-1B dependency will need to monitor their H-1B dependency since the DOL will likely take the position that  an employer will be barred from the using pre-existing LCAs to admit additional H-1B worker or extend the status of current workers if they become H-1B dependent after the LCA filing. Employers subject to the new requirements will also need to monitor layoffs within employer's workforce. After the LCA is certified,H-1B dependent employers and LCA violators must make certain that it has not laid off a U.S., worker within 90 days preceding the filing of the H-1B petition with the INS and within 90 days after the filing of the H-1B petition. Contractor will also need to monitor layoffs by other employers since job contractors may be liable to punishment for violation of the lay-off attestation when the lay-off has occurred at another employer where the job contractor has placed H-1B workers (secondary displacement). The DOL will likely interpret the recruitment attestation to enquire the employer to recruit with respect to any job opening for which the LCA is used, whether that recruitment occurs before or after the LCA is filed.

For further information, send your query to Aparna Davé.