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The Labor Condition Application (LCA) is a prerequisite requirement for H-1B petition approval. It is a condition that must be fulfilled by U.S. employers seeking to hire foreign nationals on H-1B status. The LCA is filed with the Department of Labor (DOL) and must be obtained before an H-1B petition can be submitted to the United States Citizenship and Immigration Services (USCIS).
An LCA form contains the following information about the job position for the foreign worker:
The DOL has the responsibility to ensure that the interests of the U.S. employers, their current employees, and the foreign workers are protected. This is because some employers may want to take advantage of workers who are new in the U.S. and treat them unfairly in the area of salary, compensation, and other benefits attached to their job position.
The main essence of the LCA is to ensure that the employment process is conducted in the right manner, and the fundamental human rights of the employee are protected. Among other requirements, the employer will be required to make four attestations indicating that they will abide by the labor law in the hiring process and the working conditions for the employee.
The employer must attest that the worker will be paid the actual wage level paid by the organization to other employees with similar qualifications and experience for that specific job or the prevailing wage for the occupational classification in the area of employment. The employer must also attest that the worker will be paid the required wage for any time he or she is in nonproductive status due to either the worker’s lack of licensure or permits or due to the decision of the employer. The employer must further attest that the worker will be given the same benefits offered to U.S. workers.
The employer must attest that the employee will work under the same working conditions as U.S. workers. At the same time, hiring a foreign employee must not adversely affect the present working conditions of other employees currently working there.
The employer must attest that there is no ongoing lockout, strike, or any other stoppage at the location of employment. This is to prevent employers from hiring new workers to replace striking employees.
The employer must attest that the plan to hire the new employee is public knowledge. They must attest that the current employees in that job location have been provided with the notice of the LCA filing, and the union or bargaining representative (if any) has also been duly notified.
This notice of filing must be posted in at least two conspicuous locations where the foreign worker will be employed or distributed to the current employees through electronic notification. The notice must be for a period of at least ten business days and a copy must also be given to the H-1B worker.
Before an employer can file an H-1B LCA, there must be a job opening in a professional position that requires at least a bachelor’s degree in the field of specialization. The individual must also have the required degree.
According to the current LCA regulations, the following guidelines must be strictly followed by employers:
The employer must file the LCA on the ETA 9305E via the electronic iCERT system or the ETA 9035 by mail. Note that the generally accepted method is the iCERT, so if you must use the mail processing, you need to get prior permission to do so. The form must be completely filled out and signed. By doing so, you are agreeing to the attestations listed above and all other LCA regulations.
The LCA and the necessary supporting documentation must be maintained in a public access file (PAF). This simply means it must be made available for public examination within one working day after the date the application has been filed with the DOL. The documentation must be retained at the employer’s principal place of business or worker’s place of employment. The PAF must contain a memorandum detailing the actual wage calculation, the statement of the actual wage the employee will be paid, and evidence that the worker has received a copy of the LCA.
After the LCA has been approved, the employer may submit a copy of it to the USCIS to request for an H-1B nonimmigrant classification on behalf of the foreign worker.
The employer must not allow the foreign worker to begin work until he or she has been granted the authorization to work in the U.S. by the USCIS. If the employee is already on an H-1B status and is changing to another employer, he or she must not start working until the employer has submitted a petition with the approved LCA to the USCIS. The employee may start working once the new employer has received a favorable Notice of Action, I-797C from the USCIS.
H-1B certifications are valid for the period of employment specifically stated on the ETA 9035 application, which has an initial validity period of three years. An extension may be granted for another three years of stay after the initial period of stay, making it a maximum of six years. However, if the H-1B holder files an I-140 petition for a green card, and that petition is approved, an H-1B extension past the six-year maximum is possible.
An H-1B employer will be required to file a new and amended petition if there is any material change in the employee’s occupational position. A material change means a significant change to the terms and conditions of employment. This will be needed in the following scenarios:
If the employee’s duties are changed from one specialty occupation to another under the same employer, the employer may need to file a new amended H-1B petition along with a new LCA. It must be stated, however, that not all changes in duties will require a new amended petition, depending on whether the changes in duties is material. This can sometimes be difficult to parse out and will likely require an immigration attorney’s guidance.
If the employee’s place of employment is changed to a worksite outside the metropolitan statistical area or area of intended employment, an amended H-1B petition must be submitted.
Typically, the LCA processing time is within seven working days for the employers who have participated in H-1B sponsorship or LCA processing before using the iCERT system.
For first-time sponsoring employers, the LCA filing system may not recognize their FEIN (Federal Employer Identification Number). This may take an extra five days as the DOL will need first to verify their FEIN.
As stated above, LCA must be approved before an H-1B petition can be submitted to the USCIS. So we recommend that you file your LCA as early as the first business day in March to give the DOL enough time to process it in case there are issues that would require more processing time than usual. That way, you can be sure you will have an approved LCA before the USCIS opens the filing window for H-1B petitions.
The H-1B annual submission window opens on the first business day in April. It will remain open until either seven days have passed or at least 85,000 petitions have been collected by the USCIS, whichever happens later. Because it has relatively low requirements, the classification is highly sought-after, and the limited cap is filled sometimes within hours after opening the filing window. Therefore, you must get everything ready, ensure the form is properly filled, and submit the petition as soon as possible.
An H-1B labor condition application will be returned not certified if the employer fails to comply with the filing regulations. Some of the common reasons for LCA denial include:
An LCA form will be considered improperly filed if the employer:
A labor condition application will not be approved if the ETA 9035 or ETA 9035E contains any of the following inaccuracies:
The biggest advantage of the H-1B status is its dual intent privilege, which allows you to apply for a green card after spending some time in the U.S. If your green card application is granted, you will be able to continue to live and work as a permanent resident in the United States.
Just like a nonimmigrant application, you will also need to go through labor certification processing when adjusting your status from H-1B to a green card holder, though this process is far more stringent. This is known as PERM Labor Certification. An employment-based green card is sponsored by a U.S. employer, meaning you must have a job offer that meets the requirements for one of the employment-based green card categories.
In April 2019, the USCIS received 190,098 petitions within just five days of opening the H-1B filing window, more than twice the number of available visas. This goes to show how competitive the H-1B classification is and why you need to get your LCA as early as possible. If you are planning to file an H-1B petition for the next season, you need to start gathering the relevant documents for your LCA now.
VisaNation Law Group has a team of expert immigration attorneys with years of experience with the DOL Labor Condition Application processing and LCA regulations. They will help you prepare your LCA form and supporting documents following according to the DOL standard. Their lawyers will also guide you on how you can make the most of your H-1B status, including green card processing. You can schedule a consultation today by filling out this contact form.
