How to File a Labor Condition Application
A Labor Condition Application (LCA) is the first step of an H-1B visa application process. In order to submit an LCA, the U.S. employer must first provide its Federal Employer Identification Number (FEIN) to the Office of Foreign Labor Certification for verification. U.S. employers willing to sponsor foreign nationals for temporary H-1B employment status, must submit Form ETA 9035 and ETA 0935E through U.S. Department of Labor FLAG system. These forms contain the following information:
- Basic information about the proposed H-1B position
- Pay rate
- Period of employment
- Work location
- Four standard employer attestations
DOL typically certifies the LCA within seven business days. The LCA must be certified by the U.S. Department of Labor (DOL) before a US employer can file an H-1B petition with USCIS. Once certified, an LCA will be valid for up to three years. An H-1B cannot be approved without a valid LCA.
Four employer attestations on LCA. The U.S. employer must post a Notice of Filing Labor Condition Application. The posting is to inform all employees of the company that an LCA has been or will be filed for an H-1B worker. In their LCA applications, U.S. employers make four attestations:
- The employer will pay the required wage, which is the greater of the prevailing wage or the actual wage paid to other employees in the same position;
- The employment of H-1B workers will not adversely affect the working conditions of U.S. workers;
- When the LCA was filed, there was no strike, lockout or other work stoppage because of a labor dispute;
- The H-1B worker will be given a copy of the LCA, and the employer has notified the bargaining representative if the job is unionized, or, if not, the employer has posted in a conspicuous place notice that an LCA was filed.
The notice must be posted for 10 business days at work locations. Additionally, one notice must list the dates that the notice was posted and removed, and it must be signed and dated by a company official.
The LCA is intended to serve two purposes:
- Ensuring that U.S. wages are not depressed by the hiring of foreign labor; and
- That foreign workers are not exploited.
How to Create a Public Disclosure File
Within one day of filing the Labor Condition Application (LCA), the H-1B employer must create a Public Access File that may be viewed by any person. The Public Access File (PAF) must consist of the following documents:
- Copy of the LCA (containing employer’s original signature and cover pages)
- Information about the wage to be paid to the H-1B employee
- Explanation of the system used to set the actual wage
- Copy of the prevailing wage determination (PWD) from the National Prevailing Wage and Helpdesk Center (NPWHC)
- Copy of notice to labor union (if any) or postings
- Summary of benefits offered to the H-1B employee (to show that the same benefits are offered to US employees)
- Copy of the LCA certified by the US Department of Labor
- Information on adjustment of H-1B wages
- If US employer is considered H-1B dependent or a willful H-1B violator, proof of US workers recruitment, list of “exempt” employees (if applicable)
The Public Disclosure File may be kept hard copy and/or electronically and must be made available to any interested party.
If the employer will become subject to DOL audit, the maintenance of a Public Disclosure File will be reviewed.
The Public Disclosure File must be kept at the employer’s place of business in the U.S. or at the place of employment for a period of one year beyond the last date on which any H-1B nonimmigrant covered in the LCA is employed.
If no H-1B workers were actually employed, the Public Disclosure File must be retained for one year from the date the LCA’s expiration or withdrawal date.
How the Prevailing Wage and Actual Wage Are Determined
The U.S. employer must promise that H-1B employees will be paid the prevailing wage or actual wage, whichever is higher. The process of prevailing wage and actual wage determination must comply with the U.S. Department of Labor (DOL) requirements.
How to determine the prevailing wage. U.S. employers must file Form ETA-9141, Application for Prevailing Wage Determination online through the FLAG system. Prevailing wage determination must rely on the following sources of information:
- National Prevailing Wage and Helpdesk Center;
- Published wage survey for the occupation in the area of intended employment; or
- Reliance on another legitimate source of wage data.
The U.S. employer is required to pay the prevailing wage. For academic and research jobs, the “Hathaway Rule” is used. Under this rule, for jobs at institutions of higher education, nonprofit research organizations, or government research organizations, the wages paid at similar institutions only will be considered.
How to determine the actual wage. The U.S. employer must identify any other employees who possess the similar experience and qualifications. The H-1B employee must be paid at least as much as similarly situated employees or the prevailing wage whichever is higher.
The U.S. employer must document the process of determining the actual wage and keep it in the Public Disclosure File. H-1B employees must be offered the same benefits as other similarly situated U.S. employees.
The payroll records of H-1B employees and similarly situated U.S. workers must be retained for 3 years from the date the records were created.
What to Do After Labor Condition Application is Certified
After the LCA has been certified by the U.S. The Department of Labor, the Public Disclosure File was created, the petitioner has been selected in the electronic registration system (if subject to H-1B cap) an H-1B petition must be filed with USCIS using Form I-129, Petition for a Nonimmigrant Worker. Form I-129 can be filed up to 180 days before the intended start date for employment. The application must be mailed to the USCIS Service Center with jurisdiction over the state where the beneficiary will be employed. The direct Form I-129 filing addresses are available on the USCIS website.
Related Links:
Form I-129, Petition for a Nonimmigrant Worker
