A SYNOPSIS OF NEW LCA REGULATIONS

The U.S. Department of Labor (DOL), published regulations implementing the H-1B provisions of the American Competitiveness and Workforce Improvement Act (ACWIA) and altering existing H-1B rules, on December 20, 2000.

All H-1B employers are required to follow the abovementioned regulations which amongst others include ACWIA provisions, as under:

Offer benefits to H-1B workers on the same basis as offered to their U.S. workers;
Pay full wages to any H-1B worker placed in a non-productive status by the employer;
Comply with whistleblower provisions that protect employees – including former employees and applicants – who disclose information about potential violations or cooperate in an investigation or proceeding; and,
Refrain from requiring an H-1B worker to pay the employer’s petition filing fees or imposing penalty for early cessation of employment.

The new regulations require certain declarations to be made by “H-1B dependant” employers and “Willful Violators”.

An ‘H-1B dependant’ employer is defined as an employer who has:

a. 25 or fewer full-time equivalent employees who are employed in the U.S. and employs more than 7 H-1B non-immigrants;

b. At least 26 but not more than 50 full-time equivalent employees who are employed in the U.S. and employs more than 12 H-1B non-immigrants; or

c. At least 51 full-time equivalent employees who are employed in the U.S. and employs H-1B non-immigrants in a number that is equal to at least 15% of the number of such full-time equivalent employees.

A ‘Willful Violator’ is an employer whom the Secretary of Labor has found, after notice and opportunity for a hearing, to have willfully failed to meet a condition of the labor condition application described in section 212 (n) of the Immigration & Nationality Act.

The aforesaid DECLARATIONS are that:

a. The “H-1B dependant” or “Willful violator” employers are prohibited from replacing U.S. workers with H-1B workers, and from placing H-1B workers at other employers’ work sites where U.S. workers have been displaced; and,

b. such employers have to make an effort in good faith to employ qualified U.S. workers before hiring H-1B workers and to hire U.S. workers if they are at least as qualified as the H-1B workers they intend to employ (this latter provision is administered by the US Department of Justice).

The regulations have also set forth several new rules governing the Labor Condition Application (LCA, Form ETA 9035) and its processing system as under:

· ETA Regional Offices shall no longer be able to process the old Form ETA 9035 and LCA Fax application;

· While ETA was reforming the LCA processing system between January 19th and February 5th, submissions by LCA Fax were not available;

· ETA had requested that, if possible, no new LCA submissions should be made till the Fax-back system was ready by February 5th, although, ETA would process paper applications received between January 19th and February 5th; and

· Paper applications may be mailed to ETA-H1B, PO Box 13640, Philadelphia, PA 19101.