Revoking the LCA

With the above issues in mind, [See "'A Moveable Feast': New and Old Portability under AC21 § 105 (Part VI)"] the initial employer must also decide whether to revoke the LCA. The possibility of the resigning worker's return to the initial employer may be a reason not to revoke the LCA, but if the employer's standard practice is to revoke the LCA, the employer may likely wish to continue.¹⁰⁷ However, the initial employer should consider the possibility that this practice may be considered to be against public policy. The Senate Judiciary Committee's report noted that Congress was concerned about H-1B employees being exploited based on their legal status.¹⁰⁸ By providing increased worker mobility, Congress likely intended to reduce the potential harm for employees to change employers. Moreover, given the potential liability employers may face for certain actions taken after the employment relationship ends, one could argue that revoking the LCA may violate public policy.

There are several other considerations in deciding whether to revoke the LCA. First, the employer must consider the importance of limiting liability under the LCA. A complaint regarding a failure to meet a condition or a misrepresentation made on the LCA must be filed no later than 12 months after "the date of the failure or misrepresentation."¹⁰⁹ The DOL's interim final H-1B regulations provide that if the employer withdraws the LCA, "the provisions of this part will no longer apply with respect to such application" with the exception of provisions involving the wage and working conditions requirement and no-strike/lockout provisions.¹¹⁰ On a related matter, the DOL's position of requiring a bona fide termination to be relieved of the obligation to pay wages during certain nonproductive time places employers in the position of being obliged to revoke the H-1B petition and LCA.¹¹¹ Second, the employer will want to avoid the possibility of gaining H-1B dependent status,¹¹² because such a determination will require the employer to meet additional attestation requirements, including a "no-layoff attestation" and "recruitment attestation."¹¹³ The employer would want to avoid situations in which H-1B petitions and LCAs filed on behalf of workers who are no longer employed with the company are counted toward the determination of H-1B dependent status. Both of these factors support the conclusion that the employer should revoke the LCA after the H-1B worker resigns from employment.

However, there is a reason not revoke the LCA, which is in situations where the worker's employment was covered by a "blanket LCA."¹¹⁴ DOL regulations permit employers to cover more than one intended position ("employment opportunity") within the same occupation. A blanket LCA would cover more than one individual and maybe more than one intended place of employment. Thus, revoking the LCA in this situation would be impractical since other current H-1B employees would likely be covered.

Angelo A. Paparelli (aap@entertheusa.com) has been practicing business-sponsored immigration law for over 20 years, and is the managing partner of Paparelli & Partners LLP in Irvine, California. He is a nationally recognized speaker, published author and leading expert on cutting-edge business-related immigration issues, including the immigration consequences of mergers, acquisitions, reorganizations and other business changes, consular visa practice, audits of employers' compliance with immigration and labor regulations, and employment-based work visas. Mr. Paparelli is certified as a Specialist in Immigration and Nationality Law by the State Bar of California, Board of Legal Specialization.

Janet J. Lee is an associate at Paparelli & Partners LLP. Ms. Lee is admitted to practice law in the State of California. Before joining the firm she served as Executive Editor of The Labor Letters, Inc. from 1997 to 2000. She can be reached at jjl@entertheusa.com.