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.

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