DOL on Location-Specific Periods of Intended Employment

DOL on Completing a LCA for H-1B Nonimmigrant Professionals in Specialty Occupation; Location-specific Periods of Intended Employment

Pursuant to a telephone conversation of July 18, 1994, between Paul Nelson, Certifying Officer, and Flora Richardson, Chief, Division of Foreign Labor Certification, this is to provide written confirmation of Departmental policy on the requirements for completing a labor condition application for H-1 B nonimmigrant professionals in specialty occupations.

Specifically, Mr. Nelson requested confirmation of Departmental policy regarding whether the period of employment at item 7(e) of the labor condition application must be location-specific; i.e., whether the employer must enter the starting and ending dates of employment at each city and state listed or whether the period of employment refers to the period of the H-1B nonimmigrant's stay in the U.S. pursuant to the application. Section ____.730(c)(1) of the Department's H-1B regulations at 20 CFR part 655 provides that:

"each application for H-1B nonimmigrant shall identify the occupational classifications and shall state for each occupation classification: ... (iv) The starting and ending dates of the H-1B nonimmigrant's employment ....."

Further, ' ____.730(c)(2)(iii) provides that an employer may file a single labor condition application for more than one place of employment only if "the information provided in this paragraph (c) is provided for each occupational classification for each place of employment."

Although the regulations could be construed to require location-specific periods of intended employment, we do not believe that a labor condition application which fails to provide such specific information should be rejected. Particularly with a potential application validity period of six years, we do not believe it is reasonable to require an employer to anticipate, at the time of filing the application, the specific dates on which an H-1B nonimmigrant will report to a new location. We believe that it is sufficient for an employer to specify the starting and ending dates of the H-1B nonimmigrant's stay in the U.S. pursuant to that labor condition application.

It should be noted that provision of notice to the bargaining representative or employees under the fourth attestation element is required, for each place of employment, on or before the date the labor application is submitted. The statute and the regulations are very clear in this regard. Therefore, if an employer knows that an H- 1B nonimmigrant will be working in a particular city at some future date but does not know the particular location with sufficient specificity to provide notification to the bargaining representative or to employees by posting notices at the place of employment, the employer may be in violation by filing an application with this city included. Specifically, the employer may be in violation of ' ____.730(h) of the regulations which clearly requires that notice be provided for each place of employment on or before the date the application is submitted.

On a related note, an employer may file a labor condition application for more than one location using only one line of item 7. However, if the three-digit occupational groups code, job title, or rate of pay is different for one or more locations, a new line of the application would be required. For example, if an employer listed the rate of pay as a wage range at item 7(d) and several locations of employment are listed, a new line would be required for any city where the bottom of the wage range was not at least 95% of the prevailing wage rate in any particular location. This is because the regulations provide that a wage range is considered to meet the prevailing wage requirement so long as the bottom of the wage range is at least the prevailing wage rate.

Questions regarding this memorandum should be directed to Scott Cote of the Division of Foreign Labor Certification (202) 219-4369.

Flora T. Richardson

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