H1B Compliance : LCA Posting Notices, Why and Where?
Posted May 15, 2009
©MurthyDotCom
The topics of numerous MurthyBulletin articles, available on MurthyDotCom, have been designed to assist employers in their efforts to comply with the H1B law and requirements. This is vitally important to employers relying on H1B workers, given the intense focus of government agencies on H1B compliance and investigation matters. The U.S. Department of Labor (DOL)’s regulations are complex and detailed. The DOL's role relates to the required Labor Condition Application (LCA) which is filed with each H1B petition. An important requirement of the LCA is to provide appropriate notice of its filing. This is set out and attested to by the employer on the LCA itself. The potential penalties for failing to provide this notice are significant. Thus, employers must take this obligation seriously, and establish a clear plan for compliance.
©MurthyDotCom
DOL Regulations Require Notice of LCA Filing from Employers
©MurthyDotCom
DOL regulations state that an employer who files an H1B petition must provide notice of the filing of the related LCA. If there is a union involved, then the notice is provided to the collective employees’ bargaining representative. If no union is involved, notice of the filing must be posted in two conspicuous locations in the place of intended employment / worksite for ten consecutive business days.
©MurthyDotCom
Method of the Posting LCA and Posting Requirements
©MurthyDotCom
If there is no collective bargaining representative, the H1B employer must give notice to the affected workers by either posting a hard copy of the LCA itself (or a notice containing specified information) or by electronic means. A hard-copy notice must be posted in two conspicuous locations for ten consecutive business days at the work location/s where the employee/s will be working.
©MurthyDotCom
The DOL regulation is specific in its inclusion of worksites that are maintained by third parties. Thus, this requirement extends to so-called end-client worksites that are common in the consulting industry. IT consulting companies sometimes have trouble convincing mid-vendors or end clients of the necessity of such postings at these locations. But the regulation and the DOL enforcement policy are clear on this requirement. If an H1B worker is placed at a worksite that the employer did not consider at the time the LCA was filed, then the employer must post a notice on or before the date the H1B worker begins at that location.
©MurthyDotCom
Electronic Posting of LCA and Requirements
©MurthyDotCom
DOL regulations allow for electronic notice to the affected workers. This method has been misunderstood by some employers who have posted their LCAs or notices of LCAs on their company intranet websites.  This does not satisfy the Labor Condition Application posting requirement, if the employee will be working at a client site. DOL regulations state that the H1B employer must notify all employees in the same job classification as the sponsored H1B worker/s for whom the LCA is being completed. This means providing notice to the employer’s workers in the same job category, as well as to the employees of the end client in the same job category at any location where the H1B worker will be assigned. This is why the posting of the LCAs on the H1B employer's intranet would be insufficient in most consulting positions. Posting on the sponsoring employer’s website, although publically accessible, may also be insufficient, unless the workers at the actual intended work location would have reason to know to check that website.
©MurthyDotCom
eMails and Intranets May Work
©MurthyDotCom
The DOL regulations permit the LCA notice to be given by eMail to all of the affected workers. In addition, the LCA may be posted on the intranet of the company to which the H1B worker will be assigned. In the IT consulting industry, this often means that the LCA needs to be posted by the end-client on their own intranet, if that intranet is accessible by all of the affected workers.  
©MurthyDotCom
Unanticipated Work Locations in the Same MSA
©MurthyDotCom
As discussed above, if the H1B employer decides to place the H1B worker at another client site location in the same metropolitan statistical area (MSA) as originally listed in the LCA, it is necessary to provide notice to the workers at the new client site. This notice must be given to all workers in the same job classification as that of the H1B worker/s. This must be accomplished as described above, by hard-copy or electronic means.
©MurthyDotCom
Penalties for Failure to Give Proper Notice
©MurthyDotCom
The penalties for failure to provide notice of the filing of the LCA, as required, can be substantial. The penalties permitted are both civil money penalties, assessed per violation, as well as potential debarment. Debarment prevents future sponsorship of not only H1B workers, but also any other nonimmigrant worker category, as well as permanent residence (green card) cases for a specific period of time.
©MurthyDotCom
The DOL classifies these violations into four levels. From the least to the most serious, these levels are: non-substantial; substantial; willful; and willful; and substantial. If the violation is considered as non-substantial, then the DOL can cite this, but otherwise may not penalize the employer. If the DOL determines that an H1B employer substantially failed to give proper notice of an LCA, penalties may include a fine of up to $1,000 per violation and a minimum one-year debarment. If the failure to give proper notice of an LCA was willful or willful and substantial, the penalties may be a fine up to $5,000 per violation and a minimum two-year debarment.
©MurthyDotCom
In addition to the penalty provisions explained here, in circumstances where this failure to give notice results in the displacement of a U.S. worker employed by the same company, the penalties may be an enhanced fine of up to $35,000 and debarment for a minimum of three years.
©MurthyDotCom
Since these penalties are assessed on a per-violation basis, they may be multiplied many times, depending upon the size of the employer’s H1B workforce and the number of LCAs and client locations at issue. The debarment periods are set forth as minimums. Employers found to have violated the notice requirements at a level other than non-substantial, face this additional significant penalty.
©MurthyDotCom
Conclusion
©MurthyDotCom
It can be complicated and difficult to obtain permission to post LCAs at end-client locations or to post electronically on a client's website. However, the law is the law and in the United States the importance of complying with the law becomes critical for the continued ability to do business successfully. As MurthyDotCom and MurthyBulletin articles continue to emphasize, employers must take these H1B requirements seriously. Improper postings can result in financial penalties that could be devastating. The penalty of debarment would prevent further sponsorship of H1B workers for a year or more. This, too, could be devastating to an employer who relies on H1B workers. H1B sponsors, therefore, must have proper notification procedures in place. Employers with questions about these matters may consult with attorneys at the Murthy Law Firm. We can help establish a plan for future compliance, analyze the possible impact of past practices and assess overall options in an attempt to reduce exposure to DOL penalties.