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Should An Employer Withdraw An LCA?
April 20, 2012

In these times of layoffs and uncertainty of employment, we are asked this question quite often:  As an employer, should we withdraw a Labor Condition Application (LCA) when we layoff an H1B Employee to avoid wage obligations?

The law states that:  An LCA "may" be withdrawn at "any time" before the expiration of the validity period, provided that the H-1B employee is "not employed at the place of employment" and "the Administrator has not commenced an investigation."  Further, it is stated that a bona fide termination occurs where the employer notified the DHS that the employment has been terminated and in certain circumstances, where the transportation home was provided to the employee. There is no mention of having to withdraw the LCA.

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