What legal options do you have to legally stay in the United States?

Author:

Kaushik Ranchod, Immigration Attorney in California

Filing your H-1B petition for your candidate with United States Immigration Services (USCIS) is only the first step in the process. You must also obtain a certification of a labor condition application (LCA) from the Department of Labor (DOL). At the very beginning, you need to make sure to post the LCA at two conspicuous locations at your place of business.

  • The employer must attest that the applicant is paid the prevailing wage, or actual wage of similar workers, and will receive similar benefits to that of other workers in a similar position.
  • The employer is also required to give notice to the applicant of the required wage rate and working conditions; attest that there is no strike or lockout for this position; and notify the DOL after the LCA is filed of any strike or lockout within three days of the strike or lockout.

Be prepared for an audit

After you’ve filed your H-1B petition, complied with the LCA attestations, the employer’s attestations must kept in a “public access file” in case of a DOL audit. This file should contain a copy of the signed and certified LCA with the dates that you posted this LCA; strike and lockout attestation; copy of the prevailing wage determination, including the source you used, and your reasoning of how the applicant falls within the specified prevailing wage; documentation demonstrating the actual wage; evidence that the applicant is receiving similar benefits as others in similar positions; documentation stating the current rate of pay of the H-1B worker; and labor condition application.

Remaining in compliance after hiring your H-1B applicant

During your applicant’s H-1B status, you must continue to pay the prevailing wage. And, if there are other employees in the same position with similar education and experience receiving raises, you should also provide your H-1B worker with similar raises or be prepared to justify why the worker did not receive similar raises.2 If your worker transfers to another work site that was not listed on the initial LCA, you must file a new LCA and meet other LCA requirements. Exceptions include short term travel work assignments or non work-site locations.

In today’s economic environment, hiring foreign talent is often a necessity. You can skillfully avoid the most common pitfalls by keeping these points and strategies in mind in order to retain your long-term competitive edge.

  1. If the employer has a bargaining representative the employer must provide notice of the LCA filing to the bargaining representative of the employer’s employees in the occupational classification.
  2. The USCIS, DOL, or employees can file a complaint. The Wage and Hour Division (WHD) of the Employment Standards Administration (ESA) will determine if a violation has occurred. Penalties include paying back wages and benefits, fines up to $35,000 per violation, and inability to file immigration petitions for up to three years.

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