Immigration Lawyer Provides Advice on
Hiring Foreign Workers:
Employer Responsibility

          Employer responsibility is regulated by laws that are implemented by the Department of Labor and INS.  Section 412(a)(1) of ACWIA requires three new attestation statements on the Labor Condition Application (LCA) which is filed to support the H-1B nonimmigrant petitions.  These statements supplement the prevailing and actual wage, working conditions, no strike or lockout, notice of filing and posting statements currently required by INS §212(n)(1). The three attestations are: (1) the employer will not directly displace a U.S. worker within the 90 day period before and after filing the H-1B petition; (2) the employer will not secondarily place the H-1B worker with another employer if the second employer then places the H-1B worker at one or more work sites and establishes an employment relationship between the secondary employer and the H-1B worker; (3) before filing the LCA, the employer has taken “good faith” steps to recruit U.S. workers for the position to be filled by the H-1B worker.

IS THE EMPLOYER H-1B DEPENDENT?
Under ACWIA, the employer must attest to the company’s H-1B dependency using the following formula to determine dependency:
          25 or fewer FTE employees:   7 H-1B aliens
          26-50 FTE employees:           12 H-1B aliens
          51 or more FTE employees:   15% of the workforce is H-1B aliens

EXEMPT EMPLOYEES (exempt from the attestation)
The LCA allows the employer to determine his “exempt” H-1B employees:
          Master’s degree in the specialty area
          Salary of $60,000 or higher
Please Note: The LCA for an exempt employee may not be used for a non-exempt employee.

H-1B PORTABILITY
Under the American Competitiveness Act (AC21 §105), the employer may hire the new H-1B employee if he is already has a valid H-1B from a previous employer and the employer has filed the new H-1B petition with the INS.  Date of filing the H-1B: when the H-1B petition is “properly filed” with the INS, physically received and time stamped to show actual receipt by the INS office 8 CFR §103.2(a)(7)(i).