And many of the companies that make these incredible products and services possible hire hundreds, if not thousands, of foreign born workers. For example, according to 2017 US Department of Labor data, Lyft submitted 121 Labor Condition Applications (LCAs), Uber Technologies submitted 732 LCAs, and Amazon, across its many subsidiaries, submitted a whopping 5,000+ LCAs for H-1B or E-3 workers.
Yet LCA compliance - posting LCA notices and creating and maintaining Public Access Files (PAFs) for H-1B and E-3 workers - is still done on paper by an overwhelming number of employers.
When I was an immigration attorney focusing on H-1B visas, I noticed this trend - a surprisingly large chunk of my time was spent on creating LCA posting notices and compiling, reviewing and shipping hard copy PAFs on behalf of my clients.
Electronic LCA posting had been allowed since 2000, and in March 2017 the DOL publicly confirmed that electronic PAFs were compliant. So why weren’t more clients doing it? I left my legal career behind and jumped into the tech world to find out. I saw an opportunity to make LCA compliance more efficient.
Over the past year, I’ve spoken to over fifty H-1B employers, including universities, hospitals, tech startups and IT consulting companies about their LCA practices - most of them are hugely inefficient for two main reasons. And if your company is still doing these two things as part of your LCA compliance process, your process is likely inefficient too.
1. Posting Paper LCA Notices
I was surprised to find so many of these organizations, including very large ones that file LCAs by the hundreds or even thousands, still posting hard copy LCA notices. Here are some of the conversations I had:
- A university’s international scholar office sent each LCA posting notice to the hiring department. Someone from that department would print out the notice, post it in the building, then confirm via email to go ahead with LCA submission. After taking it down, they would write the dates by hand and fax it back to the international scholar office.
- An IT consulting company’s immigration team received LCA posting notices as email attachments from their immigration lawyers. They would send them out to third party client sites for printing and posting and track it in an Excel spreadsheet.
- A multinational tech company’s HR team received soft copy LCA posting notices from their lawyers to post onsite in the pantry. They printed, posted, and then had to email the lawyers to confirm so the lawyers could submit the LCA to DOL.
These examples were from large companies that hire a considerable number of H-1B workers and at least have in-house immigration specialists to manage LCA postings.
But there aren’t that many of them. The majority of H-1B employers have small HR teams, or none at all, and put immigration responsibilities on stretched-thin employees or very busy executives. We factored in the time it takes to type all these back and forth emails, scan or upload LCA notices, print them out, walk to the pantry or elsewhere to post, and so on, and the time really added up. We calculated between 40 minutes to and hour spent per LCA.
And when the printer jams up? Fuhgeddaboudit
2. Maintaining Hard Copy PAFs
Every LCA posting requires a corresponding PAF. Inside this PAF is a copy of the LCA, evidence of its posting, and a few other required documents. For decades, PAFs have been paper-based, living inside filing cabinets, on desks and in drawers.
So when the DOL publicly announced on March 7, 2017 at an AILA meeting that employers can now maintain a fully electronic PAF, it completely changed the game. Previously, employers weren’t sure whether a digital copy of a signed, certified LCA would be considered compliant, so many employers were keeping manual PAFs instead. As of March 7, 2017, this is no longer a requirement.
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Still, however, an overwhelming number of H-1B employers keep hard copy PAFs in the office. Keep in mind that PAFs have a retention period - one year past the employment date under the LCA, which can total to four years. Over time, PAFs compound, especially when employers don’t dispose of “expired” ones as soon as possible.
Searching through them is also a mess. One large IT consulting company I spoke to has several full-time staff who are responsible for LCA compliance, mostly PAF maintenance. They store thousands of folders, track them on a spreadsheet, and manually retrieve them in the event of a DOL audit or public request.
Often lawyers are the ones that compile PAFs on behalf of their clients. They create PAFs at their office and ship them to their clients’ worksites with instructions on what, if anything, is missing from the PAF (like a signed, certified LCA), how to properly maintain it. and so on. Most lawyers haven’t upgraded to electronic PAFs either.
So much time spent printing and compiling each PAF, storing them, tracking and managing them and potentially retrieving them in the event of an audit. This on top of paper-based LCA posting? Oy Vey!
The Solution: Automation
I talked about three easy ways to get started posting electronic LCAs in this blog post. I wanted to start a more public conversation around electronic LCA posting and to share my thoughts and experiences. But most of all, it was my desire to show immigration lawyers, HR professionals and others dealing with H-1B workers and LCA compliance that there are technology solutions out there.
I left my career in immigration law to build a solution for this problem: LaborLess. An electronic LCA posting and PAF management tool that allows H-1B employers and the law firms that support them to drastically cut down on the time and cost associated with LCA posting, free up office space (and decrease paper waste) by storing PAFs in the cloud, and make LCA compliance easier overall.
Do you have an in-house tool or other ad hoc solutions for LCA compliance? Have you seen any efficiency gains with electronic LCAs or PAFs? Please comment below, I’d love to discuss.