The U.S. Court of Appeals for the Ninth Circuit recently affirmed an employer’s duty to comply with the attestations made under the Labor Condition Application (LCA) to pay its foreign national employee during the period of authorized employment. The case, Persian Broadcast Service Global, Inc. v. Walsh, stems from an administrative complaint a former employee filed with the Department of Labor’s (DOL) Wage and Hour Division in February 2015.
An employer seeking to employ a foreign worker in certain non-immigrant temporary work status (H1b, E-3 or H1b1) must, as first step in the petition process, file an LCA with the DOL and receive certification. In addition to containing information about the specific position, such as the gross wage rate, work site, occupational title, and dates of employment, the LCA binds the employer to pay the wage rate to the foreign employee for the period of the authorized employment.
The complainant is an Australian citizen who was employed by the petitioner television station on E-3 work visa status from November 2011 until July 2014 and took this step against his employer for alleged unpaid wages for the period covered under the two certified LCAs during his employment with the company. The DOL’s appellate body, the Administrative Review Board (ARB), found that the employer had violated its LCA attestations and ruled in favor of the employee and ordered the employer to pay the back wages. The employer appealed this decision in federal district court, which upheld the ARB’s decision. The employer subsequently filed a Petition for Review of the district court’s decision with the Ninth Circuit, which on August 1, 2023 agreed with the lower court’s decision and affirmed the employer’s duty to be responsible for wages under the LCA attestations.
The interesting component in this legal battle is that even though that employee was advised by his employer during the employment period that it was not able to pay the wages and the employee worked partially from overseas for some time, the ARB, U.S. District Court, and finally, the Ninth Circuit all held that this did not effectuate a bona fide termination of the employment, thus keeping the employer obligated to pay the certified wages under the LCA.
This Ninth Circuit’s opinion provides an important review of the LCA obligations of the employer as well as the timeliness of filing an administrative complaint. It is thus prudent for any employer hiring foreign employees based on an LCA certification to consult with an experienced immigration attorneys to fully comprehend its obligations and duties under the document.