DOL Advises on H-1B/LCA Issues

Dear [name omitted]:

This is in response to your request of March 25, 1994 for an advisory opinion under the H-1B program for nonimmigrant professionals in specialty occupations. The following responses are in the order enumerated in your letter.

1. Section ____.730(3)(2)(iv) of the Department of Labor's (Department's) H-1B regulations at 20 CFR part 655 provides that the employer must obtain current prevailing wage information "every 24 months throughout the period of employment of the H-1B alien, starting from the date the labor condition application is certified."

2. If no H-1B nonimmigrant is ever hired, or if an H-1B nonimmigrant is hired but is employed for less than 24 months from the date of certification, the employer is not required to obtain current prevailing wage information at the end of the 24th month from the date of certification. It should be noted, however, that if an H-1B nonimmigrant is hired but employed for less than 24 months, and subsequently (after 24 months has elapsed from the date of certification) a new H-1B nonimmigrant is hired pursuant to the same labor condition application, the employer would be required to obtain current prevailing wage information prior to the new H-1B nonimmigrant reporting for duty.

3. If an employer has a certified labor condition application for one H-1B nonimmigrant who leaves before the period of employment expires, the same labor condition application may be used to petition for a new H-1B nonimmigrant as long as the occupational information on the LCA (i.e., three-digit occupational groups code, job title, whether the position is full- time or part-time, rate of pay, and location where the H-1B nonimmigrant will work) remains applicable to the job opening, and the number of H-1B nonimmigrants employed pursuant to that application does not exceed the number of H-1B nonimmigrants indicated at item 7(c).

4. When an employer petitions the Immigration and Naturalization Service to extend the stay of an H-1B nonimmigrant beyond the initial 3 years, it is not counted as an additional alien for purposes of the labor condition application.

5. Section ____.760(a) of the Department's H-1B regulations provides that the employer shall make a filed labor condition application and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. or at the place of employment within one working day after the date on which the labor condition application is filed with the Department. Such documentation shall include, among other things,

a full clear explanation of the system that the employer used to set the "actual wage" the employer has paid or will for the occupation(s) for which the H-1B nonimmigrant is sought -- e.g., memorandum to the file summarizing the system or a copy of the employer's pay system (payroll records are not required, although they shall be made available to the Department in an enforcement action.) (Emphasis supplied.)

It should be noted, however, that where salaries for H- 1B nonimmigrants are listed on the labor condition application as a range or ranges of wages (not specific wage rates), the exact salary of each H-1B nonimmigrant must be specified in the documentation for public examination.

6. The documentation requirements for the 24-month prevailing wage update are the same as those which pertain to the initial prevailing wage determination obtained prior to filing the labor condition application. Depending on the source of wage information relied upon by the employer, the documentation must include at least the following: (1) an excerpt from the statutory or regulatory determination under the Davis-Bacon or McNamara-O'Hara Service Contracts Acts; (2) an excerpt from a union contract negotiated at arms-length between a union and the employer; (3) a copy of the prevailing wage finding from the local State Employment Security Agency; (4) a copy of the prevailing wage survey published by an independent authoritative source; or (5) a copy of the prevailing wage survey or other source data acquired from a legitimate source of wage information.

Further, the employer must make a copy of the documentation the employer used to establish the updated prevailing wage for the occupation available for public examination. A general description of the source and methodology is all that is required to be made available for public examination; the underlying individual wage data relied upon to determine the prevailing wage is not a public record, although it shall be made available to the Department in an enforcement action.

I hope this information is helpful to you.

Flora T. Richardson