H1B Labor Condition Application: An Overview - VisaPro

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Introduction

A certified Labor Condition Application (ETA Form 9035), is a prerequisite to H1B approval. The LCA must be certified by the Department of Labor (DOL) before the H1B petition is submitted to USCIS. The employer must also document compliance with the LCA requirements in a public access file.

For the benefit of H1B employers and H1B employees, we present here an overview of the H1B LCA along with the filing procedures and compliance requirements.

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1. H1B LCA – What Is It?

The Labor Condition Application (LCA) contains basic wage and location information about the proposed H1B employment. The LCA contains the rate of pay, period of employment, and work location.

It also contains four standard attestations that the employer must make.

IMPORTANT The LCA must be certified by the DOL and submitted with the Form I-129 in order for the H1B petition to be approved by USCIS.

What Is Labor Condition Application For H1B?

My Case Scenario Santosh

Company A wishes to hire Santosh, who is currently working on an H1B visa for Company B. They extend an offer to Santosh who accepts it and returns the signed offer letter to Company A. Company A is aware that Santosh can begin work as soon as a new H1B petition has been filed. Company A completes and submits the LCA through DOL iCERT portal. Because they want Santosh to start as soon as possible they submit the H1B petition without waiting for the LCA to be certified. Santosh starts work for Company A the day after the H1B petition was filed. Will he run into any problem in this situation?

A: Yes. The H1B petition must include a certified LCA. The USCIS will either reject the petition for lack of the certified LCA, or request the certified LCA through a Request For Evidence. Ultimately, USCIS will deny the H1B petition for lack of an LCA that was certified as of the date of filing the H1B petition. Unfortunately, Santosh has entered into unauthorized employment because the H1B petition was not properly filed. Santosh will have to depart the US and he can return using his old H1B petition (and visa, if available) if he wishes to return to work for Company B. Otherwise, Company A will need to resubmit the H1B petition with a certified LCA and Santosh will need to wait outside the country until the H1B petition is approved before he can return to the U.S.

2. Filing The Labor Condition Application (LCA)

An H1B employer must file the ETA Form 9035:

  • electronically on DOL’s iCert portal www.lca.doleta.gov, or
  • via mail, only if the petitioner has a “physical disability or lack of access to the Internet” that prevents the employer from filing the form electronically. The employer must first obtain pre-approval from DOL to file LCA by mail.

At the present time, it is taking the DOL 7 business days to certify e-filed LCA.

DID YOU KNOW? A single Labor Condition Application for H1B may be filed for multiple petitions.

3. H1B Work Location Change

Each LCA is limited to one job title with specified job duties for specific location(s), but can be used for more than one H1B petition.

If the employer places an H1B employee outside the area of work location(s) listed on the LCA and the H1B petition, the employer is required to file a new LCA and an amended I-129 petition with USCIS.

Learn more about when H1B address change of work location requires an amended H1B petition and LCA filing.

DID YOU KNOW? A copy of the Certified LCA must be provided directly to the H1B worker prior to beginning the H1B employment.

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4. Attestations Made In The LCA

By signing and filing the Labor Condition Application for an H1B petition, an employer makes four attestations (or promises). The company attests that:

  • It will provide the H1B employee the same benefits offered to US workers and pay the H1B employee the higher of: the actual wage paid to others by the employer who have similar experience and qualifications for that specific job in the company OR the prevailing wage for the occupation in the area of employment.
  • It will provide the H1B employee working conditions that will not adversely affect the working conditions of workers similarly employed in the area. Working conditions commonly refer to matters including hours, shifts, vacation and fringe benefits.
  • There is no strike or labor dispute at the place of employment in the same occupation listed on the LCA.
  • It has provided a notice of this filing to the union bargaining representative (if applicable), or if there is no bargaining representative or union, directly to the workers by posting a notice of filing in at least two conspicuous locations at the place of employment, for a period of no less than 10 business days. The H1B worker has also been given a copy of the LCA.

5. Public Access File

The DOL requires that the employer must make available for public examination a copy of the certified LCA and necessary supporting documentation regarding the H1B workers and other similarly situated employees at its offices. Specifically, the employer must create and maintain a public access file (PAF) to document compliance in each H1B case.

The PAF must be maintained and be available for public inspection for at least one year beyond the dates of the employment on the LCA or for one year from the withdrawal of the LCA.

The public access file must include:

  • A copy of the certified LCA (with the employer’s original signature and LCA cover pages).
  • Documentation of the wage to be paid to the H1B employee.
  • Explanation of system used to determine the actual wage paid.
  • Documentation regarding the prevailing wage and the wage source.
  • Copy of notice to the union (if applicable) or workers (the Notice of Filing).
  • Summary of the benefits plan offered to the H1B employee showing that it is the same as that offered to similarly employed U.S. workers and an explanation for how any variations, if any, are determined.
  • Copy of certified LCA with signature of H1B employee as proof he or she received copy.
  • Documentation regarding any adjustment to the wage (e.g., annual raise or cost of living increase).
  • If the employer is H1B dependent or have been found to be willful violators of the LCA regulations, proof of efforts to recruit US workers.
  • After the creation of the PAF, where the employer undergoes a change in corporate structure, and does not choose to file an amended petition for each H1B it acquires, a sworn statement from the new employer that it accepts all obligations under the LCAs filed by the predecessor employer and a list of the affected LCAs.

6. Withdrawing The Labor Condition Application (LCA)

In order to limit any potential liability, including the payment of back wages, the employer must withdraw the certified LCA if the H1B employee’s employment is terminated, as long as no other H1B worker is employed at the place of employment pursuant to the same LCA and no investigation has been commenced regarding the particular application by the DOL.

IMPORTANT Violations of the LCA attestations can expose an H1B employer to civil fines, barring of the employer from obtaining further visas for a period of at least 1 to 3 years, and making the employer liable for payment of back wages.

Conclusion

H1B Labor Condition Application is an integral part of the H1B filing. Compliance with the complex LCA regulations is critical for all employers who employ H1B workers.

Combining our legal knowledge with extensive experience representing companies undergoing DOL investigations, VisaPro provides clients with the tools necessary to run a successful H1B process. VisaPro can conduct audits of H1B LCA and Public Access File compliance, assisting H1B employers document their good faith efforts to comply with all regulations.

If have questions regarding Labor Condition Application, or would like to discuss compliance issues specific to your company, schedule a FREE Consultation. Our experienced immigration attorneys will be happy to guide you.

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