Immigration Basics: Labor Condition Application for H1B Petitions

The labor condition application (LCA) is important to many employers and foreign workers in the United States, as it is a part of the H1B petition filing process. The LCA is a form that requires U.S. Department of Labor (DOL) approval in order for an employer to file an H1B petition for a temporary professional worker. The basic steps required for filing and obtaining approval of the LCA, as well as the content and purpose of the LCA, are covered here, for the benefit of MurthyDotCom and MurthyBulletin readers.

What is an LCA?

The LCA should not be confused with the PERM labor certification process, often referred to as the LC or PERM. The LC is related to permanent resident (green card) case filings.

The LCA is a form that is required from an employer who intends to hire an H1B worker. The DOL must approve the LCA in order for an employer to file an H1B petition with the U.S. Citizenship and Immigration Services (USCIS). The form requires the employer to attest to certain labor condition statements, outlined in more detail below. The H1B employment is limited to the position set forth in the LCA, as well as the geographic location/s listed in the LCA. The LCA is tied to the DOL’s role in protecting U.S. workers.

LCA Includes Information on Occupation and Wage Rate

The LCA outlines details of the H1B employment. It lists the occupational classification being sought, the number of nonimmigrants covered, the wage rate to be paid to the beneficiary, the prevailing wage for the occupation in the area of intended employment, the work location/s, and the dates of employment. The LCA must also indicate whether the employer is H1B dependent. Read further for an explanation of H1B dependency and prevailing wages.

LCA Online Filing Using iCERT

The LCA, Form ETA 9035, must be filed with the DOL electronically through the online portal known as iCERT. The DOL adjudicates the LCA within seven working days of filing. The LCA may be submitted to the DOL up to six months prior to the requested start date. Find more information on the iCert system in our article, iCert in Place for H1B LCAs (17.Jul.2009), available on MurthyDotCom.

Employer Attestations in the LCA

The LCA contains several required employer attestations. Failure on the part of the employer to comply with the LCA attestations could lead to civil and/or criminal liabilities and/or monetary fines.

The employer must attest that the H1B employee will be paid the greater of either the actual or the prevailing wage. The prevailing wage is the going rate for the position, as determined by DOL or other acceptable wage surveys. The actual wage is the wage the employer pays to similarly qualified employees in the occupational classification in the geographic area of employment.

With limited exceptions, the employer must pay the H1B worker the required wage, even during nonproductive status.

The employer must provide H1B workers with the same working conditions and benefits offered to similarly-employed U.S. workers.

The employer must attest that the employment of H1B workers will not adversely affect the working conditions (such as hours, vacations, and benefits) of similarly-employed U.S. workers.

The employer must also attest that there is no strike, lockout, or work stoppage on the date the LCA is filed.

Finally, the employer must provide notice of the filing of the LCA. The employer must provide the H1B worker with a copy of the LCA.

LCA Notice Posting for Ten Days

The LCA notice may be posted by hardcopy notice or electronic notice; however, in either case it must be posted for ten days at the worksite where the H1B worker will be located. This may not always be the employer’s office. If the H1B worker will be working at a third-party worksite, the posting notice must be posted at that location. The purpose of the notice requirement is to notify U.S. workers at the place of employment.

Employer Must Maintain a Public Access File

The LCA must be maintained in a public access file (PAF) at the employer’s principal place of business. The PAF must be available for inspection by any individual or the DOL. The PAF must contain a copy of the signed and certified LCA, statement of the actual wage to be paid to the H1B worker, the prevailing wage determination, memorandum explaining the actual wage calculation, summary of benefits offered to similarly employed U.S. workers, copy of the posting notice/s, and evidence that a copy of the LCA was given to the H1B worker.

Dependent H1B Employers

H1B-dependent employers must make two additional attestations in the LCA. An employer is considered H1B dependent if the company employs 1-25 full-time employees and more than seven are H1B employees or 26-50 employees and more than twelve are H1B employees or over 50 employees and fifteen percent or more are H1B workers.

First, H1B-dependent employers must make attestations regarding non-displacement of U.S. workers within the workforce. H1B-dependent employers who place workers at the worksites of other employers must further attest to non-displacement of the employees at the worksite. Second, the employer must attest to good-faith efforts to recruit U.S. workers for the job for which H1B workers are sought. The employer must maintain evidence of compliance in the PAF.

There is an exception to the additional attestations for H1B-dependent employers if the foreign national beneficiary is considered an “exempt” employee. A beneficiary is an exempt H1B employee for the dependency attestations, if the beneficiary holds a master’s degree in a relevant field or the beneficiary will be paid an annual salary of at least $60,000.

Duration, Material Changes, and Withdrawal of LCA

An LCA may be certified for up to a three-year validity period. If there are material changes to the position, a new, updated LCA may be needed. Such changes include material changes in job duties and/or salary. Corporate changes and new work location/s may also require a new LCA. Generally, if a new LCA is required, an amended H1B petition may also be required.

Conclusion

We at the Murthy Law Firm can advise employers on the specific procedures regarding the LCA and the H1B petition filing process, as well as employer obligations under the LCA. This is important to ensure proper compliance with the attestations and filing requirements. We can also assist employers and employees in determining whether a new LCA and/or amended H1B petition is required due to changes in employment. The LCA, on its face, appears simple. But, it largely controls the scope of employment permitted with the corresponding H1B petition and sets forth the promises and obligations of the H1B employer. It is important to understand the LCA and not to underestimate its importance, as many DOL investigations and audits are based solely on employer violations of the LCA.

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