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All employers are making four basic “attestations” or promises when they sign the Labor Condition Application. In addition, employers who are “H-1B Dependent” employers OR are “willful violators” of the H-1B regulations are subject to certain additional attestations, which must be made for an LCA application to be considered for approval. H-1B Dependent employer are those who meet certain criteria for having a specific number of H-1B employees out of their total number of employees (not a straight percentage – there are certain numerical “cut-offs” at which a certain number of H-1B employees makes the employer H-1B Dependent).
All employers must make the following four attestations:
- Wages: That the employer will pay the H-1B employer the HIGHER of prevailing wage for the offered job in the geographic area of intended employment (determined by a government survey) OR the “Actual Wage” (the wage the employer is actually paying to employees in the same position). This includes provision of benefits to H-1B employees on the same basis that they are provided to other employees;
- Working Conditions: Provide working conditions to the H-1B employee which won’t adversely impact the working conditions of other workers in similar positions (i.e.: shorter breaks or less vacation time can’t be given the H-1B employee to lower the market working conditions);
- Strike, Lockout, or Work Stoppage: The employer must attest that there is no strike, lockout, or work stoppage in effect for the offered job at the location of intended employment (intended to prevent the H-1B from being used to break strikes or other labor disputes);
- Notice: Notice of the planned hiring of an H-1B worker must be provided to a union representative if one exists, or otherwise to workers in the offered occupation at the place of intended employment (usually accomplished by providing or posting a copy of the Labor Condition Application form itself, as-filed). Notice must also be given to each H-1B worker employed under the LCA at the time they begin work under the H-12B for which the LCA was used.
The additional attestations are:
- Displacement: That the H-1B petitioning employer isn’t displacing a U.S. worker in the employer’s work force to hire the H-1B worker;
- Secondary Non-Displacement: That no other employer – for instance, a client of the H-1B petitioning employer – is displacing a U.S. worker through the petitioner’s hiring of this H-1B worker (this is an additional measure to prevent outsourcing through the use of H-1B workers, and essentially makes the H-1B petitioner responsible for the actions of their clients);
- Recruitment and Hiring: Recruitment and hiring of U.S. applicant(s) who are equally or better qualified than the H-1B worker (contrast this with the “minimally qualified U.S. applicant” standard used for PERM Labor Certification).