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What is a Labor Condition Application in the H-1B process?

An employer must file a certified Labor Condition Application (LCA) with an H-1B petition on behalf of employees who need an H-1B visa for employment. The LCA is certified by the Department of Labor (DOL) and imposes an obligation on the employer to pay the offered wage for the duration of the H-1B petition unless the obligation is terminated earlier.

There are two reasons the obligation may be terminated early. If the employee requests non-work-related time off for personal reasons or submits a voluntary resignation, the employer is not required to pay the salary as the employee is considered unavailable for employment. Either reason should be carefully documented. The employer’s obligation for wages may also terminate if the employer decides to terminate the employment of an H-1B employee, with or without cause, prior to the end of the H-1B petition. Continue Reading Bona fide termination of H-1B employee

On Dec. 21, 2023, the US Department of State (DOS) published a proposed rule, “Pilot Program To Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens.” It announced what has been long anticipated: a program to allow certain H-1B visa holders to renew their visas while they reside in the United States.Continue Reading H-1B visas for applicants present in the US to be renewed again

Proposed Regulations:
Yesterday, the Department of Labor published its proposed regulations (pdf) to address the recently enacted changes to military leave and eligibility requirements for flight crew members. Beyond the changes detailed below, the DOL clarified that employers are not required to provide employees with FMLA-protected military caregiver leave for the "serious injury or illness of…

The Department of Labor has begun enforcing the law passed in March 2010 requiring break time for nursing mothers and has cited 15 employers for violations of the law. We wrote about this law at the time the statute went into effect.
Continue Reading Department of Labor Begins Enforcing Requirement that Employers Provide Breaks to Nursing Mothers

We’ve noticed some cases recently filed challenging employers’ use of the fluctuating workweek method to determine the overtime compensation for employees who receive commission payments. Plaintiffs are alleging that this practice is not permitted by the Fair Labor Standards Act (FLSA) when employees earn commissions in addition to their salaries. However, this issue is unresolved, and precedent seems to favor the employer defendants.
Continue Reading FLSA Hot Topic: The Fluctuating Workweek and Commission Pay

In July 2007, the Fourth Circuit Court of Appeals held in Progress Energy v. Taylor, 493 F.3d 454 (4th Cir. 2007), that, under the Department of Labor’s (DOL’s) regulations and the Family and Medical Leave Act (FMLA), employees cannot waive their rights under the FMLA in a private agreement, such as a severance agreement. To waive FMLA rights, the Fourth Circuit held that the agreement must first be court- or DOL-approved. Progress Energy, supported by several other business groups, appealed the decision to the U.S. Supreme Court, citing a split between the Fourth and Fifth Circuits. On January 14, 2008, the Supreme Court asked the DOL to submit its view on the issue. This type of request is often a signal that the Supreme Court will review the decision.
Continue Reading Supreme Court Considers Weighing In On Key FMLA Waiver Issue

Posted in EEO