U.S. Department of Labor Requirements
Labor Condition Application (LCA)
Before an H-1B petition can be filed with U.S. Citizenship and Immigration Services, UMMC must obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor. An LCA is a document that provides details about the terms and conditions of H-1B employment (title, period of employment, location of employment, rate of pay, etc.). Additionally, the LCA contains specific attestations that the employer must abide by during the H-1B employment period:
The H-1B employee must be paid what the Department of Labor refers to as the “required wage.” This wage must be paid at all times during the H-1B employment period, even if the employee is placed in a non-productive status such as training or a lack of assigned work. However, payment is not required in situations unrelated to employment where the employee requests time off (maternity leave, FMLA, etc.). To comply with the Department of Labor’s regulation to pay the required wage, an employer must evaluate two other wage rates and pay the employee the higher of those two rates:
- The prevailing wage rate is defined as the average of wages paid to individuals in the “area of intended employment” who have jobs substantially comparable to the H-1B employee. Prevailing wage determinations are obtained by filing an electronic request with the Department of Labor’s National Prevailing Wage Center in Washington, D.C. A prevailing wage rate is assigned based on the job's minimum requirements, the duties to be perform, and any specialized skills needed to perform them. An H-1B employee must be paid, at minimum, the prevailing wage rate assigned by the National Prevailing Wage Center. If the wage/salary offered by the employer is less than the prevailing wage determination, the employer must bring the employee’s salary up to the prevailing wage, or otherwise forgo the hiring of the H-1B employee.
- The actual wage rate is the wage or salary paid to all other employees in a specific job who have experience, job duties, educational background and other qualifications similar to those of the H-1B employee. The actual wage is often expressed as a wage range and an H-1B employee’s wage should fall somewhere within the range.
- At UMMC, the actual wage for staff positions is the range of wages/salaries paid to employees who are: (a) working in the same department (b) assigned the same job title, and (c) have comparable job duties and qualifications.
- For faculty positions, the actual wage at UMMC is the range of wages/salaries paid to employees who are: (a) working in the same department, (b) practicing in the same discipline, (c) assigned the same title, and (d) have comparable experience and qualifications.
- The H-1B worker’s employment cannot have a negative impact on the working conditions and benefits of U.S. workers. In order to ensure that there will not be a negative impact, H-1B employees must be paid comparably to U.S. workers and also must be afforded the same benefits as U.S. workers.
- H-1B workers cannot be employed when there is a strike or lockout of U.S. employees in the same occupation in which the H-1B worker will be hired. Since UMMC is not involved with labor unions, this attestation will not be a concern.
- U.S. workers will be made aware of the H-1B employment by posting two (2) notices of the proposed employment in conspicuous locations at the place of employment. If the H-1B employee’s work will take place only on the UMMC campus, the notices should be posted within the sponsoring department. If work will also be performed at other sites off campus, notices must also be posted at each of those sites. Notices must be posted on or before the date the Labor Condition Application (LCA) is filed with the Dept. of Labor, but cannot be posted more than 30 days prior to the filing of the LCA. All notices must be posted for a period of at least ten (10) work days.