The H-1B visa is granted to nonimmigrant workers to work in the United States. In order to qualify, the applicant must work in a specialty occupation that requires a theoretical and practical application. The H-1B visa is used by US companies to temporarily employ foreign workers.
Prior to filing an H-1B petition to the United States Citizenship and Immigration Services (USCIS), the employer needs to submit a Labor Control Application (LCA). This is a prerequisite for employers seeking to employ foreign workers.
An LCA seeks to protect the interests of the workers in terms of wage, benefits, work conditions, and termination. In this piece, we share an in-depth guide on the LCA.
What is the Purpose of the LCA?
The Employment and Training Administration, Department of Labor is the official government organization responsible for safeguarding the interests of U.S. employers, present employees, and international workers. This is because some businesses may attempt to take advantage of foreign workers who are new to the United States by treating them unjustly in terms of pay, compensation, and other job-related advantages.
The LCA’s major goal is to guarantee that the hiring process is performed properly and that the employee’s fundamental human rights are upheld. Among other things, the employer will be forced to sign four affidavits stating that they would follow labor laws in the recruiting process and the employee’s working circumstances.
Attestations Under the LCA
Through the LCA, the employer is required to attest to the following attestation regarding the working conditions of the employee:
#Wages and Benefits
The employer needs to attest that the employee will be paid the actual wage level paid to workers similarly employed in the company or the prevailing wage for the occupational classification and receive the same benefits given to her US counterparts.
Further, the employer also needs to attest that the employee will be paid the required wage when the employee cannot work due to lack of license, permits or decision of the employer.
The employer needs to attest that the working condition for the foreign workers will be the same as the US workers. Further, the hiring of foreign workers will not adversely affect the current working conditions.
#Work Stoppage, Lockout, or Strike
The employer needs to attest that there is no work stoppage, lockout, or strike at the place of employment where the foreign workers will be hired.
#Notice of Intent
The employer needs to attest that the notice of intent to hire foreign workers has been made available to the current employees, the employee union, or the bargaining representative.
This should be done at least ten business days prior to filing the LCA. Further, such notice should be sent to at least two conspicuous locations where the new employee will be working.
Guidelines Under H-1B LCA Regulations
The following guidelines must be followed by employers prior to filing an LCA for employing foreign workers:
#Completed ETA 9035
The LCA must be submitted on the ETA 9305E via the electronic iCERT system or by mail on the ETA 9035. Keep in mind that the iCERT is the widely acknowledged mode of submission. In order to submit through the mail, you will have to request prior permission.
The form must be fully completed and signed. You are consenting to the following attestations as well as all other LCA regulations by doing so.
#Public Access File
All the necessary supporting documentation relating to the LCA must be maintained in a public access file (PFA). This will make the files available to the public for examination within one business day after submission by the employer. This ensures that the employer cannot lie on their LCA.
It must be kept in the employer’s principal place or the worker’s place of employment. A memorandum outlining the actual wage calculation, a declaration of the actual wage the employee will be paid, and proof that the worker has received a copy of the LCA must all be included in the PAF.
H-1B LCA Denial
There are various reasons for the denial of an LCA. If that happens, the USCIS will return it as “not certified”. Here are some of the common reasons for denial of an LCA:
The information in the LCA will be considered inaccurate if it meets any of the following reasons:
- If the Wage and Hour Division (WHD) has disqualified the employer from hiring foreign or nonimmigrant worker.
- If the wage rate does not match the prevailing wage rate or is below the minimum wage rate specified by the Fair Labor Standard.
- If the LCA is filed in error by the employer.
- If the LCA is filed six months before the start of the intended employment period.
H-1B LCA FAQ
#1. What is the validity period of an H-1B visa?
H-1B visas are valid for the duration of work specified on the ETA 9035 application, which has a three-year initial validity term. After the original length of stay, a three-year extension may be granted, bringing the total period of stay to six years. However, if the H-1B holder submits an I-140 petition for a green card and it is accepted, the H-1B status can be extended beyond the six-year limit.
#2. What will happen if there is a change in the employee’s position?
If the employee’s responsibilities under the same company move from one specialty occupation to another, the employer may need to file a new and revised H-1B petition with a new LCA.
However, depending on whether the changes in obligations are important, not all changes in duties will necessitate a fresh revised petition. This can be difficult to decipher at times and will almost certainly necessitate the assistance of an immigration attorney.
#3. What will happen if there is a change in the employee’s location?
A change in the employee’s location does not always necessitate an amended H-1B petition. If the position of employment is changed from the area of intended employment, the employer must file an amended H-1B petition.
#4. How long does it take to process an LCA?
For employers that have engaged in H-1B sponsorship or LCA processing before utilizing the iCERT system, the LCA processing period is typically seven working days. The LCA filing system may not recognize the Federal Employer Identification Number (FEIN) of first-time sponsoring employers.
This might take up to five days longer because the Department of Labor will need to validate their FEIN first.
#5. What if the LCA is denied?
If an LCA is denied, the Department of Labor will return the application with reasons for the denial. The employer can file a new LCA in order to get approval. Due to this, it is extremely important that the LCA is filed as soon as possible.
#6. How much does filing an LCA cost?
Filing an LCA is free of cost.
#7. Can I file an H-1B petition without an approved LCA?
No, an approved LCA is a prerequisite for submitting an H-1B petition.
#8. Does an H-1B petition improve my chances of getting a green card?
The most significant benefit of the H-1B visa is the dual purpose provision, which permits you to apply for a green card after spending time in the United States. If your green card application is approved, you will be eligible to live and work in the United States as a permanent resident.
#9. Is PERM Labor Certification the same as LCA?
No. An LCA is filed by the employer prior to filing an H-1B petition to temporarily employ foreign workers. On the other hand, when changing your status from H-1B to employment based green card holder, you’ll need to go through the PERM labour certification procedure. A U.S. business sponsors an employment-based green card, which means you must have a job offer that fits the qualifications for one of the employment-based green card categories.
#10. Can I file the LCA on my behalf?
No, the foreign labor certification is the responsibility of the employer.
How Can Herman Legal Group Help
Thousands of H-1B visa applications are submitted to the USCIS every year. It is natural to feel confused, stressed, and anxious by the process. It is critical to have an experienced immigration attorney by your side in order to ease through the process and save time and money.
At Herman Legal Group, we have successfully represented clients in a wide range of H-1B petitions and LCA filings. We understand the importance of securing timely approval, and our attorneys will work diligently to ensure that your application is filed correctly and processed as quickly as possible.
If you are interested in filing an H-1B petition or LCA, please do not hesitate to contact us for a consultation. We will be more than happy to assist you.