The DOL, the LCA and H-1B

A precondition to filing an H-1B petition is that the Employer files a Labor Condition Application (LCA) to the Department of Labor (DOL) attesting that
they will pay the alien the prevailing wage during the period of the employment and
that they are not adversely affecting other workers by hiring,
or not replacing striking or laid off US workers with the H-1B non immigrant

The Employer is supposed to:

Display a copy of the LCA for 10 days in the business premises
Keep the LCA in a file for public access for 3 years
Provide a copy of the LCA to the H-1B employee

This condition has to be met during the entire term of the employees work until the termination of employment. Benching an employee and later rehiring that employee is not a termination and the employer has to pay the employee the full amount promised in the LCA.

If however the employee takes a leave due to a voluntary request (for example going back to the home country for some time) or for the employee’s convenience, then the employer is not required to pay the employee.

The Employer must notify the Citizenship and Immigration Services upon termination of the H-1B employee.

The DOL can and does enforce that employers abide by the terms and conditions of the LCA. Employees stiffed by their employers can complain to the DOL, who then upon determining the truth, orders the Employers to pay the back wages due to the Employee and also assess fines for non compliance.

However the DOL’s authority to enforce terms of employment only extends to the LCA. Any subsequently held contracts between employers and employees cannot be subjected to DOL enforcement. In a recent case, In the Matter of Mahmoud Ashraf Galal (2008-LCA-00010) the employee asserted that the employer’s agreement to increase the employees wage to 90K per year (when the LCA promised $65K) and the employer’s promise to pay employee work related travel expenses were contractual and the DOL did not have the authority to enforce them. The Employees should file under State Law for contractual remedies. The determination will be done under individual state law.

Employment Based Visa Bills in the House

The United States have a fixed quota as to how many immigrants they can let in from a particular country. Some countries like China and India has a large pool of qualified immigrants who can come to the US and fill professional positions, and thereby improve the US economy. However, with China and India prospering, and the green card process taking longer and longer, many of these highly qualified personnel are going back to their own countries. No one can deal with the uncertainty of an US green card taking in some cases 7 to 8 years. As a result, US businesses are loosing their competitive edge.

Not every country uses up their quota. Thus those visas are wasted. During Clinton’s reign, these unused visas were collected and given to everyone at large. This is a bipartisan issue affecting both small and large businesses and American competitiveness. Currently there are 3 bills in the legislature to ameliorate the problem. They are:

1. H.R. 6039, by exempting highly educated, foreign-born students earning an advanced degree in science, technology, engineering or mathematics from a U.S. university from the annual EB green card limit, would help U.S. employers retain these talented individuals in the U.S. workforce. For example, foreign nationals comprise half of the master’s and 70 percent of the Ph.D.s in electrical engineering from U.S. universities.

2. H.R. 5921 will help put an end to multi-year wait times by eliminating unduly restrictive per
country limits on EB green cards.

3. H.R. 5882 will help to reduce visa backlogs by “recapturing” EB green cards from prior years
that went unused due to government processing delays and making them available immediately to those who meet the requirements.

A letter signed by 130 Corporations, like Microsoft, Google, Sun Systems, E Bay, Coca Cola Company, etc and educational institutions was sent to House of Representatives.

A comprehensive immigration reform may be hard to get a consensus on. But this bill is not for “illegal people” who the likes of Lou Dobbs chastise. These are highly qualified individuals, who if they go back, they will enrich their own countries, and US will fall behind on their Math and Science competitive edge.

TN Visa to Green Card

TN visa is given to Canadian and Mexican Nationals under the NAFTA treaty. These individuals qualify for and work in jobs specified under a specific Schedule enumerated in the NAFTA Treaty with Canada and Mexico.

Unlike H and L visas, TN visa holders could not apply for Permanent Residency, (green card) because this visa was temporary and did not allow for dual intent (ie intent to hold both temporary and permanent visas) in the US. However, unlike visitors visa, the TN visa holder did not have to maintain foreign residency abroad. Also, a June 1996 letter by Yvonne LaFleur, Chief of Business and Trade branch at INS, said that the TN worker could do consular processing of their permanent visas. Although this letter is not binding, it has been followed by most Consular Posts.

Logistically, this was not possible earlier, because TNs were given for 1 year and most green cards took more than 1 year. So the TN visas would not be extended after that year if one applied for the Permanent Residency. However now TN visas are being given for 3 years. So many TN nationals can now probably apply for their Permanent Residency and able to do consular processing of their green card during this time. With only 65,000 H-1B visas available, it worth a shot for many desperate employers and employees.