Practice Areas

LCA Violations and Consequences

Every employer is required to submit a completed Labor Condition Application (LCA) to the Employment and Training Administration.  By signing the LCA the employer attests that the “facts” specified on the LCA are true and accurate.  The wage and hour department (WHD) of the Department of Justice (DOJ) enforces the provisions of the LCA.  Some of the provisions are employer information, wages, period of employment, job classification, work locations, and prevailing wage data, and these all represent “material facts.”  Violations cited may include a misrepresentation of a material fact, a failure to meet an LCA condition, or a failure to comply with the regulations.  The various violations are classified by the WHD as a simple failure, a substantial failure, or a willful failure. The level of gravity of the violation affects whether civil monetary penalties (CMP) will be assessed and their amount, and whether the employer may be debarred and for how long.

Sanctions presently include back pay, CMP’s and disqualification from USCIS approval of employment-based immigrant petitions or H, L, O and P nonimmigrant petitions.  The sanctions have been increased by the American Competitiveness and Workforce Improvements Act of 1998 (ACWIA).  ACWIA has implemented a $1,000 fine and one-year prohibition from filing immigrant and nonimmigrant visa petitions for the following:  1) failure to meet strike or layoff attestation; (2) substantial failure to meet working-condition attestation or displacement attestation; (3) posting or recruitment attestations or (4)  misrepresentation of material fact in the LCA.  ACWIA has a $5,000 fine and two-year prohibition from filing immigrant and nonimmigrant petitions for willful failure to meet any attestation or willful misrepresentation of material fact in the LCA.  Lastly, ACWIA has a $35,000 fine and three-year prohibition for willful failure to meet an attestation condition or willful misrepresentation of a material fact on an LCA, either of which causes a U.S. worker to be displaced during the 90 days before filing the application through the 90 days after filing the petition.  In addition to fines and prohibition, willful violators may be randomly investigated for five years.

It is important for employers to be aware that a violation of the LCA requirements also occurs if an H-1B nonimmigrant is placed in unpaid nonproductive status due to a decision by the employer ‘based upon factors such as lack of work’ or due to the H-1B nonimmigrant’s lack of a permit or license.  A violation will be found for failure to pay full-time wages to a full-time employee, failure to pay a part-time employee to the part-time rate identified in the visa petition, failure to pay a new H-1B employee within 30 days of admission, or failure to pay a new H-1B nonimmigrant already present in the U.S. within 60 days of the date the nonimmigrant becomes eligible to work for the employer.  The prohibition against unpaid nonproductive status does not apply to nonproductive time due to non-work related factors such as a voluntary request by the nonimmigrant for an absence like maternity leave or circumstances rendering the nonimmigrant unable to work.

Properly completing the LCA is a meticulous task.  The wealth of knowledge and experience on H-1B and LCA regulations at Shihab and Associates Co., LPA can ensure that your company demonstrates a good faith effort to comply with regulations in the processing of all your business immigration needs.