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The US Department of Labor (DOL) recently published regulations
affecting how Labor Condition Applications (LCAs) are to be
filed and maintained. While more detailed analysis of these
new regulatory provisions will be forthcoming, the bullet
points below highlight the most important aspects of the new
law, effective January 19, 2001.
H-1B “dependent” employers face greater requirements
when filing LCAs
H-1B “dependent” employers must increase recruitment efforts
to find US workers, and must document those efforts. H-1B
dependent employers may still exempt themselves from the increased
requirements if they hire H-1B workers who either earn at
least $60,000 per year, or hold a Master’s degree related
to the field of employment.
New “non-displacement” provisions for H-1B dependent employers
H-1B dependent employers must attest to the Labor Department
that its H-1B employees will not displace any similarly situated
US workers at the sponsoring company. Furthermore, H-1B dependent
employers must attest that they will not send H-1B employees
to other companies under contract, where doing so would displace
similarly situated U.S. workers at those companies.
Rules regarding “benched” (“nonproductive”) employees
H-1B employers must continue to pay H-1B employees the full
salary (and benefits) owing to the employee under the LCA
attestation, even where the employee is forced into a “nonproductive”
status due to a lack of work assignments or other employer-related
reasons.
Rules regarding benefit plans for H-1B employees
H-1B employees must be offered benefits and eligibility
for benefits on the same basis as US workers. Employers must
now include in their LCA public access files a summary of
their benefit plans, listing those benefits offered to both
H-1B and U.S. workers.
New posting notice requirements for mobile H-1B employees
In many circumstances, H-1B employers will now have to post
notices at any and all worksites where H-1B employees work,
including client companies receiving agreed-upon services
from H-1B employees.
Detailed Summary
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