As an employer working with foreign employees, you have many different obligations and requirements, and navigating this complex web of regulations and laws can be difficult without the insight of a New Jersey immigration attorney. Just one of the many requirements are that you submit accurate details with the Labor Condition Application when you work with H-1B visa employees. Read on to learn more about LCA.
This is why it is strongly recommended that you partner with a New Jersey immigration attorney as soon as possible to handle any outstanding issues as well as to set you up for success in the future.
Employers making use of the H-1B visa program have a lot of various requirements that they must comply with, but this process can be overwhelming and prone to mistake-making if all employers are not clear on their role. Trying to wrap your head around these regulations, however, can be problematic. Rather than wondering how you can best comply and whether you’re missing any details, it’s a good idea to hire a New Jersey immigration attorney to help you with all matters H-1B. This minimizes the chances that you’ll be overwhelmed with or confused by the information and instead allows you to
Basics of Failure to Meet Conditions in Labor Condition Applications
The United States Department of Labor has the authority to investigate H-1B employers for alleged failure to meet the conditions outlined in the Labor Conditions Application
for their employees’ H-1B visas. The Department of Labor can also initiate an investigation against an employer who has allegedly engaged in conduct prohibited by the LCA process.
When Can the Department of Labor Initiate an Investigation Like This?
These investigations can be started after receiving a complaint by an aggrieved entity or person or by the Department of Labor without ever receiving a complaint. The Department of Labor may also initiate investigation after receiving credible information from a known source that an employer is knowingly violating the conditions of the LCA.
Although specific complaints or concerns can start this kind of investigation, remember that investigators have some discretion over their decision to move forward with one. You should always be prepared for a potential investigation. The best way to avoid one is to ensure that you have looked over all possible documents carefully and done everything possible to stay compliant, but it’s also just as important to be ready to handle an investigation if one arises.
In either case, it is worth having an immigration attorney to speak with so that you can get your questions answered promptly and effectively. These matters might seem like small details, but the cost of non-compliance or a mistake can be very problematic. Hiring the right New Jersey immigration attorney is essential for protecting your rights at all stages.
What Role Does USCIS Play in These Kinds of Investigations?
As is indicated above, the Department of Labor plays a role in these investigations, but it is not the only government agency empowered to do so. Knowing what to expect and who may contact you regarding an investigation can help you figure out how to respond appropriately.
Separate from the Department of Labor, United States Citizenship and Immigration Services can also start their own investigation by performing random and unannounced site visits to H-1B employers. The purpose of these site visits is to ensure compliance with H-1B rules and provisions. These are conducted by the USCIS Office of Fraud Detection and National Security. Therefore, an employer could be open to potential investigation at numerous different stages and it is imperative to be knowledgeable about your rights as well as your responsibilities being an H-1B employer.
The Six Most Common LCA Mistakes Made by Employers
Violating the LCA could lead to consequences and it is imperative that you think about all compliance issues from the outset of working with any H-1B employees. Your processes and structures can have an important implication on whether or not USCIS or the Department of Labor identifies violations. What follows are the six most common categories leading to violations.
Failing to File an Amended LCA When an H-1B Employee Changed Locations
The location of an H-1B employee’s work has to be listed when you file an LCA. This is in fact the only physical work site in which an H-1B employee is allowed to work. If an employee works for 60 collective days or 30 consecutive within one 12-month period in a location that has not been listed on the LCA, the employer is responsible for filing a new LCA.
Failing to Maintain a Public Access File for Each LCA
A public access file should have the following information:
- Summary of the benefits offered to US workers in the same classification as H-1B applicants.
- Copy of documentation that the employer used to set up a prevailing wage and documentation that the employee has satisfied the notification requirement.
- The full explanation of the system the employer used in order to determine the actual wage that an employer paid.
- Documents outlining the wage rate to be paid to an H-1B non-immigrant.
- Copy of a certified LCA.
- Proof of compliance with internal notice requirements for each work sites.
Failing to Maintain Responsibilities for an H-1B Dependent Employer
There are several different requirements for being an H-1B dependent employer. you may be classified as an H-1B dependent employer if you meet any of the following classifications:
- 50 or more full-time employees with 15% or more of these being H-1B workers.
- 26 to 50 full-time employees and more than 12 H-1B workers.
- Less than 25 full-time employees but more than 7 H-1B workers.
Failing to Provide Internal Notices, Wage Memoranda or Copies of The LCA to The Alien Employee
The employer is responsible for giving a copy of the LCA to each employee at all of their work sites. Failing to do this could lead to a fine for each violation.
Failing to Include the Accurate Wage On The LCA
The LCA must correctly explain the wage given to the H-1B employee.
Failing to Select the Right Wage Level for an H-1B Employee
Wage levels are categorized into four separate sections. The H-1B employer is responsible for selecting the appropriate level for each H-1B employee. If you have more questions about this process, it’s important to consult with an experienced New Jersey immigration attorney as soon as possible.
One New Jersey Immigration Attorney’s Thoughts On the Issue
Penalties for violation on LCA attestations and other H-1B provisions can be severe and could even lead to criminal prosecution. Employers need to be careful about documenting their adherence to the attestations and other requirements of the LCA. They need to keep appropriate documentation handy at all times in case they are investigated by the Department of Labor or visited by USCIS.
Do you need help with H-1B visa issues? Consult with a New Jersey immigration attorney to learn more about your rights and responsibilities.