The US employer who wants to hire foreign nationals on an H-1B visa has to submit a Labor Condition Application (LCA/Form ETA 9035) with the Department of labor prior to filing the visa with the United States Citizenship and Immigration Services (USCIS).
What is an LCA?
Labor Condition applications include basic wage paid, location of the H 1b employment, prevailing wage, and term period of the employment. It is signed and filed by the US employer on behalf of the beneficiary of the H 1b visa.
Filing an LCA application is a prior step before filing Form I-129 for H 1b visa otherwise, an employer is jeopardizing the success of the H 1b petition. In the LCA, the employer makes four attestations or promises that he will obey in the course of the contract with the employer. The attestations are:
The wage paid should be more than the Actual and Prevailing Wage.
The employer must attest that the H 1b employee will be paid a wage that is higher than the actual wage and the prevailing wage. The actual wage is the wage paid to other employees of the company who possess equivalent qualifications as of the H 1b beneficiary and do the same work as the H 1b employee would be doing in the company.
The prevailing wage is the wage determined by the Department of labor, keeping in mind factors such as the job location and the position of the employee.
Promise to maintain favorable working conditions
The employee must attest that the employment of the new employee will not adversely affect the working conditions of the current employees of the company. Similarly, the H 1b employee should not face discrimination and shall get the same working conditions as other employees get working in the same position in the employer’s company.
A Declaration as to Strike, Lockout or Cessation of work
The employer must attest that there is no labor dispute ongoing in the company in the same occupation listed on the LCA. For example: When the employees are on strike and not working to protest against for example – the poor working conditions, the employer can easily hire foreign workers to replace the striking workers. This attestation is to prevent the employer from doing such an act.
Provided the Notice of Filing
The employer, while filing the LCA, shall provide a notice of such filing to the bargaining representative, if there is any, otherwise the employer shall provide notice of filing by posting in conspicuous locations in the place of employment or providing electronic notification to the employees working in the occupational classification for which H-1B visa is sought.
Furthermore, the H 1b worker should be notified about the filing of LCA.
Once the LCA is certified by the Department of labor, the employer can file the H 1b visa by attaching the approved LCA with the petition.
What will happen if I do not file LCA with my H-1B Labor Condition Application Application?
As discussed above, having a certified LCA is a precondition before filing an H 1b visa. There are two possibilities if the employer failed to attach the certified labor condition application with the H 1b visa:
The USCIS will reject the H 1b petition.
The USCIS will reject the H 1b petition, that:
H-1B Employer Labor Condition Application – Statements Summary
The H-1B employer must apply to the U.S. Department of Labor for an H-1C visa from USCIS. Berkeley International offices obtained a certification LCA for Berkeley H1B employment. In the LCA employers are required by law to prepare and maintain documentation supporting labor conditions and to provide the required documentation for employment as required by the Code of Federal Regulations in 20 CFR 655.734.
What is a Labor Condition Application for H-1B?
The labor condition application is a document describing a business’s relationship with the Department of Workforce Development. It is usually the very first step that sponsoring companies must take before hiring H-1A employees.
lacks a certified LCA from the Department of labor. The employer will have to file another H 1b application with approved LCA to employ the foreign H-1B worker. It is the employer who will suffer the loss of work, and there are chances that the employee may find another US employer meanwhile.
The USCIS will request for H 1b labor condition application through a Request for Evidence (RFE)
The other possibility is that the USCIS will issue you an RFE requesting a certified LCA. You have to submit the certified LCA within the mentioned time in the RFE. If you fail to do that, the USCIS officer assessing your application will deny the H-1B petition, and you have to file a fresh petition.
How can I file LCAs?
It is often asked to us by US employers how they can file LCA. The US Department of Labor states that the LCA can either be filed online or through the mail (only under exceptional circumstances).
Filing LCA Online
The Department of Labor states that unless you come under exceptions, the LCA should be filed online. You can use the Foreign Labor Application Gateway (FLAG system) to file the LCA online. The FLAG system is currently used by the Department of labor to help employers file their LCA online. It has replaced the iCert system and provides additional and simple-to-use features to make filing for employers easy.
Filing LCA through Mail
If you fall under any of the following two exceptions, you are allowed to mail LCA to the DOL:
- If you are an employer with having a physical disability.
- If you do not have any internet access and it is not possible for you to file the LCA online.
Before filing the LCA through the mail, the employer firstly shall petition the Administrator of Office of Foreign Labor Certification (OFLC), which is a division of employment and training administration within the DOL, to get special permission for filing through the mail.
What is the Difference Between a Labor Condition Application (LCA) and a PERM Labor Certification?
It is common for people to get confused between an LCA and PERM labor certification because both of them go through the Department of labor and are a prerequisite for employment-based visas. The basic difference between them is that:
Under LCA, the employer makes attestations or declarations such as the employer will pay higher than the actual wage level paid to similarly employed workers for the intended employment or higher than the prevailing wage, provide notice of such LCA, maintains favorable working conditions, and declare if there is any employee dispute going on.
The basic purpose of LCA is to protect the rights of the current employees working in the company and also to protect the rights of the new H-1B employee and prevent any sort of discrimination against him.
PERM Labor Certification is submitted prior to filing for employment bases immigrant visas such as EB-2 visas. The employer goes through a recruitment process in which they invite the qualified US workers for the job the employer is sponsoring the immigrant visa for. The main purpose behind PERM certification is that the foreign worker shall not be preferred before eligible US employees. The PERM protects the jobs of US workers.
Frequently Asked Questions (FAQs)
1#Is there any cost of filing LCA?
The Department of Labor does not charge the employer or the employee any fees for filing the LCA. However, you may incur a legal fee if you decide to take the help of an immigration attorney for preparing your LCA.
2#Is LCA exclusively for H 1b visas?
The LCA is required for other US visas as well and is not exclusive to H 1b visa only. Other visas are H-1B1 visa which is special visa for the people of Chile and Singapore to work in the US on a nonimmigrant basis in specialty occupations. Similarly, for the E-3 visa, the US employer is required to get a certified LCA before filing for the visa.
The E-3 programs allow US employers to employ Australian workers in specialty occupations. The limit of current workers from Australia that can be employed on E-3 visas is 10,500 per year.
3#How long the DOL takes to process an LCA?
Usually, the Department of labor takes 7 days to review LCAs. If you have filed the LCA online, you can check the status of your application by logging directly into the FLAG system. Once the DOL has certified your LCA, you can proceed to file your H 1B visa, H -1b1 visa, or E-3 visa.
4#If DOL certifies LCA, how long will it be valid from such an approval date?
The validation period of the LCA starts once the department has certified your labor condition application. The validation period of the LCA shall not exceed 3 years which is the maximum period for which H 1b visa is initially issued before getting an extension.
5#Do my employer has to file a new LCA while renewing my H 1b visa?
Yes, when your h 1b status has come to an end, your employer has to file a new LCA and get it certified from the DOL to continue working with you.
6#What will happen if DOL denies my LCA?
When DOL denies your application, it will specify the reasons for such denial. You have to file a fresh LCA with the department to get it certified again.
7#Can the employer’s H 1b dependent status affect LCA and H 1b petition?
An H 1b dependent employer is the one who hires many H-1B employees in his company and hence becomes dependent on foreign workers. The Department of Labor has given a numeric breakdown that qualifies an employer as H-1B dependent. These are:
- When the employer has employed 25 workers or less, not more than 7 similarly employed workers can be H-1B workers; otherwise, the employer becomes H 1b dependent.
- Out of 26-50 employees employed by the employer, if more than 12 workers are H-1B workers, the employer will be considered as H-1B dependent.
- Similarly, when the number of workers exceeds 50, any more than 15% of workers hired on H-1B status will make the employer H-1B dependent.
The employer’s H-1B dependent status can adversely affect the H-1B petition as the employer may require a second LCA before approval of the H-1B petition from the DOL. In the second LCA, the employer will make 3 more attestations which are as follows:
- The hiring of H 1 employees shall not adversely affect current workers. That is, no US employee shall be displaced 90 days before or 90 days after the employer has filed an H-1B petition for the nonimmigrant worker.
- The US employer shall attempt to hire US workers before filing for the H-1B petition.
- The US employer must attest that the H-1B employee will not be placed at the company of another employer unless the sponsoring employer makes sure that the receiving employer shall not displace any of the US workers 90 days before or 90 days after such placement.
USCIS will waive the requirement of a second LCA if the H-1B employee meets one of the following standards:
- They will receive $60,000 or more annual wage in the US or,
- They have a master’s or higher degree (or its equivalent) in a specialty related to the H-1B employment.
8#Can an LCA be withdrawn?
The DOL Employment and Training Administration has stated that the employer can withdraw the LCA if the employee’s work is terminated. An LCA may be withdrawn at any time provided that the employee benefiting from the LCA is not currently working for the employer.
How can Herman Legal Group Help You?
Herman Legal Group provides comprehensive immigration services to employers, nonimmigrant workers, and workers employed on immigrant visas. You can contact us to discuss your immigration issue related to H-1B visa, and our experienced immigration attorneys will assist you in the best possible manner.
As a US employer, we understand your need to hire H 1b workers, and we make sure that it becomes a reality for you to employ workers as per your needs. We provide a quick online consultation as well so that you can connect with us from any part of the world.
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