LCA Compliance & Public Access Files | Business Immigration Benchmark (057)

Summary

In this episode of the Business Immigration Benchmark, Laura Blanires discusses Labor Condition Application (LCA) compliance, a key part of H1B and E3 visa processes. She highlights the importance of posting notices and ensuring wages meet prevailing wage standards to avoid underpaying foreign workers. Laura explains how to maintain LCA compliance through the public access file, which includes required postings, signed LCAs, and employee benefits. She also covers strategies for auditing LCAs, managing legacy reports, and tracking employee worksite changes. The episode aims to help employers stay on top of compliance in a hybrid and remote workforce environment.

Takeaways

• 😀 LCA (Labor Condition Application) is an important attestation for H1B and E3 visa applications, ensuring employers pay foreign national workers a prevailing wage.
• 😀 The prevailing wage is determined based on the occupation, wage level, and the area of intended employment, with wages ranging from level 1 (entry-level) to level 4 (senior contributor).
• 😀 Employers must post a Notice of Filing summarizing the position and wage offered to the foreign national employee, either at the work site or on an internal internet portal.
• 😀 Remote or hybrid workforces can post the Notice of Filing on an internal internet platform to comply with LCA requirements, which reduces the burden of physical posting.
• 😀 Consulting firms sponsoring foreign nationals who will work at client locations must be aware of additional posting requirements and consult with immigration counsel for specific rules.
• 😀 Employers must maintain a Public Access File, summarizing compliance with LCA posting requirements, employee benefits, and a signed, certified LCA.
• 😀 Public Access Files can be requested by the Department of Homeland Security or others, and should be tracked, especially for legacy LCA filings in paper form.
• 😀 Global mobility leaders should ensure that Public Access Files are compiled electronically, eliminating reliance on paper documents, and should coordinate with legal teams to maintain these files.
• 😀 When auditing LCAs, employers should check if there are any outdated LCAs that can be purged based on retention requirements, and work with immigration counsel to identify what documents to keep.
• 😀 Comparing legacy LCA reports with current HR data is crucial to identify discrepancies such as outdated work sites or wages that fall outside the approved wage range, and to determine if amendments are needed.
• 😀 Employers should consult with legal counsel to address discrepancies in legacy LCA reports, especially regarding changes in work sites, employee roles, or wage compliance, and file necessary amendments to ensure continued compliance.

Q & A

What does LCA stand for and why is it important in business immigration?

LCA stands for Labor Condition Application. It is a key component in the H1B and E3 visa applications, requiring the employer to attest that they will pay the foreign worker a prevailing wage, ensuring the wages are not lower than the minimum required for the position.

What is the role of the prevailing wage in the LCA?

The prevailing wage is the minimum wage that an employer must pay to a foreign national worker based on the occupation, wage level, and geographic area of employment. The Department of Labor determines these wages, with classifications from level 1 (entry-level) to level 4 (senior-level).

How does the Department of Labor determine prevailing wages?

The Department of Labor maintains a wage library that classifies occupations into levels 1 to 4. These levels represent different wage amounts based on factors like skill level and experience, and the wages are set for different metropolitan statistical areas across the United States.

What is the purpose of posting the notice of filing for the LCA?

The notice of filing is a required attestation that must be posted by the employer before submitting the LCA. It summarizes the position and wage information and must be displayed in a visible location, such as a company bulletin board or online platform, to ensure transparency and compliance.

How should the notice of filing be posted for remote or hybrid workforces?

For remote or hybrid workforces, it is recommended that employers post the notice of filing on an internet-based platform instead of a physical bulletin board, ensuring compliance even if the global mobility leader is working remotely.

What is a public access file in relation to LCA compliance?

A public access file is a compilation of documents that show the employer's compliance with the LCA requirements. It includes the certified LCA, the notice of filing, and information about the benefits offered to the foreign worker. It is public information and can be requested by the Department of Homeland Security or any party lodging a complaint.

What steps should be taken to ensure compliance with LCA filings?

To ensure compliance, employers should track and manage the public access file, regularly audit LCA reports (especially legacy ones), and compare the data in the LCA filings with current employment records. Any discrepancies should be addressed, and amendments should be filed as necessary.

What should employers do with legacy LCA reports?

Employers should review legacy LCA reports to identify any outdated or irrelevant filings, purge those that are no longer necessary, and ensure that all current filings align with the latest employee data. They should also be mindful of retention requirements for these records.

What are the main compliance concerns when reviewing LCA reports?

The main concerns when reviewing LCA reports include ensuring that the employee's current work site, wages, and job title match the information filed in the LCA. Employers should also check for discrepancies, such as employees moving to different locations or changes in wages that may require an amendment to the LCA.

How should discrepancies between LCA reports and current employee data be addressed?

Discrepancies between the LCA and current employee data should be flagged and reviewed with legal counsel to determine whether amendments to the LCA are necessary. Employers need to ensure that any changes in job roles, wages, or work locations are reflected in updated filings to maintain compliance.