When obtaining an H-1B, it’s important to remember that the visa is granted in order to benefit the US enterprise – not the beneficiary. In order to protect the interest of US citizens and residents, the H-1B requires a Labor Condition Application (LCA) which is set in place to insure equal opportunity, pay, and working conditions for foreign workers and US citizens and residents.
One step in this process is the LCA Notice of Posting. Essentially, this is a requirement that the employer formally inform their employees and the public in writing that the LCA is being filed.
The notice of posting can come in two forms – a hard copy notice or an electronic notice. To post a hard copy notice, after the LCA attestation is accepted, the employer must print and sign the LCA. Then, they must post it in two conspicuous places in the work area where the beneficiary would be working.
The notice of posting should be of sufficient size and visibility to be easily seen and read by persons in the work area. It’s appropriate to post the notice in areas where other notices are posted such as wage, hour, occupational safety, and health notices. Places where employees frequently gather such as the water cooler are also appropriate.
An electronic notice should be given on or within 30 days before the labor certification is filed. It should be made available for viewing by affected employees for at least 10 days. The employer may make the notice available using any means it normally uses to communicate with workers such as a “home page” or “electronic bulletin board”.
Electronic circulations such as an employee newsletter are also appropriate. If employees do not have readily available access to the internet or company intranet, a hard copy notice should be utilized.
Rules for the notice of posting vary slightly depending on if there is a bargaining representative or not. A bargaining representative is an employer, group, or a person who negotiates a proposed enterprise agreement on behalf of those employees to be covered by the agreement.
According to the Code of Federal Regulation, if there is not a bargaining representative, the notice should include:
- that H-1B nonimmigrants are sought;
- the number of such nonimmigrants the employer is seeking;
- the occupational classification; the wages offered;
- the period of employment;
- the location(s) at which the H-1B nonimmigrants will be employed;
- and that the LCA is available for public inspection at the H-1B employer’s principal place of business in the U.S. or at the worksite.”
The notice should also include the statement:
“Complaints alleging misrepresentation of material facts in the labor condition application and/or failure to comply with the terms of the labor condition application may be filed with any office of the Wage and Hour Division of the United States Department of Labor.”
If there is collective bargaining representative for the occupational classification in which the beneficiary will be employed, the notice should pinpoint:
- “the number of H-1B nonimmigrants the employer is seeking to employ;
- the occupational classification in which the H-1B nonimmigrants will be employed;
- the wages offered;
- the period of employment;
- and the location(s) at which the H-1B nonimmigrants will be employed.”
In addition to posting the labor certification, the employer must develop and maintain documentation to support the statements made in the notice of posting. The Code of Federal Regulation States that the employer should retain records for one year beyond the period which the H-1B nonimmigrant was employed under the labor condition application or, if no beneficiary was employed, one year after the date the LCA expired. Moreover, the documentation must be made available for public and Department of Labor examination upon request.
Attending carefully to all the steps of the Labor Condition Application can help assure the best possibility of your application being approved by the Department of Labor. All required data should be included in the notice of posting and well documented in corollary sources to avoid disapproval of the LCA.