Most entries below contain actual legal discussions of events directly related to Filipinos in or immigrating to the United States.
Remember- These writings are provided for general information only and do not constitute legal advice, nor do they create any attorney-client relationship. Each person's needs and requirements are different and require a personal evaluation to determine the proper legal course of action.

Tuesday, May 27, 2014

H-1B Workers: Read Your LCA!

With every H1B extension or initial petition filed, the employer is required to submit to USCIS a Labor Condition Application (LCA) that has been approved by the U.S. Department of Labor (DOL).  The LCA is a very important document and contains your employer's promises regarding your pay and some job conditions.

Did you receive a copy of the LCA?

Your employer is absolutely required by law to give you a copy of the LCA that covers the time period of the H1B petition.  The copy can be given when the extension is filed with USCIS, or, if it is your first petition, no later then the first day of employment.  There are no exceptions to this major fraud prevention requirement - you must be given a copy of the LCA to ensure you are being paid at least the wage your employer promised the government they would pay you.

You may receive the LCA copy by itself, but often the LCA will be included in your copy of the I-129 filing packet.  No law requires you be given a copy of the entire I-129 filing packet, but sending a copy to the worker (with some private information about the employer removed) is just part of good customer service provided by some law firms.  Do not confuse the filing receipt or approval notice with the I-129 filing packet.  Along with the I-129 and LCA, the filing packet contains all the supporting documents and often an attorney "true copy" certification.  Just like with the LCA, protect yourselves by always review the filing packet for errors and misstatements.

Be Concerned Mainly with Wage Information

Do not be too concerned with the exact working hours, unless it effects the wages you should be receiving.  The form does not apply well to all the different types of positions and shifts worked, so accuracy in this area is not usually an issue as long as you are making the same (or higher) wage and under the same working conditions as U.S. workers in the same or similar job position.  Usually, the workplace address on the LCA is not a crucial fact as long as the correct address is in the same metropolitan statistical area.  Also ignore any variations of the validity end date of the LCA when the date is later than the time requested in the H1B petition.  There are times when a longer end date is requested then will be on the H1B petition.

Are you receiving the Correct Wage?

You can be paid more than the wage shown on the LCA, but not less.  With very few exceptions, such as employee-requested unpaid leaves of absence, you cannot be paid less than the amount show on the LCA.

Filing Complaints with the Department of Labor

It is easy to file a complaint against an employer over LCA violations, but you may wish to consult with an attorney before taking such actions to be sure you are correct in your belief that you are being underpaid. 

If you have not been receiving the LCA copies, you can file a complaint, although a simple reminder of the requirement may be sufficient for you to obtain past and future copies.  If you are given "late" copies of LCAs, review them carefully.  I can understand how some employers filing H1Bs on their own may have overlooked this requirement.  However, it the H1B was filed by an attorney, I would be a little suspicious as to why this very basic and simple requirement was not met.

Complaints are filed with the Department of Labor using the easy to complete form WH-4. The form must be sent to the DOL Wage & Hour Division office that has jurisdiction over your work location.  An interactive map giving the correct address for the complaint can be found on the DOL website

With few exceptions, complaints must be made within one year of the violation.

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