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Labor Condition Application: The Complete Details
April 28, 2022
9 mins
Close up view of the United States of America H1B Visa,blurred April month calendar in the background

In this blog, we have discussed the following topics related to LCA:

  • What is the LCA and its purpose?
  • What is the LCA Form?
  • Attestations for filing an LCA
  • Steps to filing an LCA

What is LCA & Why do you Need it?

The LCA or the Labor Condition Application is the first step in the entire process of obtaining an H1B Visa. A certified LCA from the US Department of Labor (DoL) is a mandatory prerequisite to file for an H1B visa petition with the USCIS. It is a condition that must be fulfilled by all US-based employers seeking to hire foreign workers for specialty occupations.
According to the US Citizenship and Immigration Services (USCIS), your employer is responsible for filing the LCA along with the United States of America Labor Employment and Training Administration or ETA. It is impossible to file Form I-129 petition for an H1B visa without first filing the LCA. That's why we say that the LCA is the first step to acquiring your H1B visa.

To begin the process of filing the LCA, make sure you are familiar with the LCA for H1B Visa & its Requirements

So, what's the purpose of the LCA?

It is the responsibility of the DOL to make sure that employers, the current employees, and foreign workers are protected. The Department is also responsible for ensuring that employers do not take undue advantage of foreign employees and treat them unfairly in terms of salary, working conditions, compensation, and other job-related benefits.

The DoL puts forth a list of details to be added to the LCA. This includes:

  • The job position
  • Duration of the offered job title (up to 3 years)
  • Location of the job position
  • The existing salary for the same job position in that area
  • Whether it is a full-time or part-time position
  • Salary offered for the position
  • Number of job positions that the LCA represents
  • The number of employees for which the LCA is filed
  • Contact details of the attorney and employer

Apart from the above-mentioned details, your employer must also submit a few attestations to signify that they abide by the labor laws while hiring foreign employees for specialty occupations.

Work Visas that Require an LCA

Let's make one thing clear at the outset: The LCA is not only mandatory for an H1B visa, but also for other employment-based visas like H1B1 & E-3. Take a look at the details:

For H1B visa:

The LCA is mandatory for all H1B visas. The H1B sponsor or employer must submit the LCA to the US Department of Labor and get it certified. Only then can approach the USCIS and file the H1B petition.

For H1B1 visa:

The LCA process for H1B1 visa is very identical to that of the H1B visa. The only difference here is that the H1B1 visa is granted only to the citizens of Chile and Singapore.

For E3 visas:

The E3 visa is another variant of the H1B visa and is granted only to Australian citizens. Here again, the process is the same. The employer has to produce a certified LCA on behalf of the prospective Australian employee.

So, what does an H1B-sponsoring employer require while applying for a Labor Condition Application? Generally, a single LCA can be filed for multiple H1B petitions. However, each LCA is limited to only ONE JOB POSITION with specific duties and job location.

The most important aspect with the H1B LCA is that it requires certain attestations to be compliant with the LCA requirements. The next part of our blog explains what these attestations are.

Attestations & Other Requirements for Filing H1B LCA

Since the LCA is a crucial document in kickstarting the H1B visa process, your employer has to make the following attestations to protect the already existing employees working for them. One of the foremost LCA requirements is to ensure there is a job vacancy for a specialty occupation that requires a bachelor's or a master's degree. The employee must also have the required educational qualifications for the job.

As far as the attestations are concerned, the employer must confirm that:

  • On the date the LCA is being filed, a notice of the same has or will be given to the employees in the same occupation.
  • The LCA must include details of the salary, job position, and job location. This detailed LCA should be posted in two noticeable locations in the employee's work site. It can also be distributed to the existing employees via email or other electronic means of communication.
  • This notice should be posted within thirty days before the LCA is filed and remain posted for ten business days.
  • The H1B employee should also receive a copy of the LCA.

According to the rules, your H1B employer must ensure that they pay you the prevailing wage mentioned on the LCA and for the geographic location. However, the USCIS may waive these attestations if you are an advanced degree employee earning more than $60,000 annually or if your employer is considered H1B dependent.

( A H1B Dependent employer is one with an excessive number of H1B workers relative to the total number of employees working under that employer.)

Any violation of the above-mentioned attestations can result in a penalty. The employer will also be barred from sponsoring non-immigrant or immigrant petitions and other sanctions.

The employer is also responsible for updating any amendments or changes to the employment by filing a new LCA and a new or modified H1B petition. Your employer must inform any of the following changes to the Office of Internal Services (OIS):

  • Any salary increase above 5%
  • Any decrease in salary
  • Increase/decrease in working hours
  • Promotions and demotions
  • Change in job location
  • Position or title change

As a result of a routine audit by OIS staff, the department may have to pay the $1,410 processing fee to maintain compliance.

Regulations & Guidelines for LCA

The following guidelines are compulsory for all H1B-sponsoring employers:

  • Complete the ETA 9035

The employer must file the LCA on the ETA 9305E. They can either send the ETA by mail or use electronic iCERT system.

  • Maintain a Public Access File

The employer must maintain the LCA and the necessary supporting documentation in a public access file or PAF. The PAF must contain a memorandum detailing the actual salary calculation, the statement of the actual salary the employee will be paid, and proof that the worker has received a copy of the LCA.

  • Submit Approved LCA to the USCIS

Following approval of the LCA, the employer must inform USCIS and apply for H-1B nonimmigrant status on behalf of the foreign worker.

  • Ensure The Employee Gets Authorization Before Working

Employers should not allow foreign workers to begin working before they have been granted authorization to do so by the USCIS.

Also Read: Concurrent H1B - Frequently Asked Questions

How to File an LCA With The DoL

The first step to filing an LCA is to file the Employment and Training Administration or ETA with the Department of Labor. Filing the ETA will help you avoid the risk of having the two overlap and making you miss the filing window. The rules also allow your employer to file a single LCA for multiple employees working in the same job position.

So, here are the steps for filing an LCA:
Step 1: Submission of ETA Form 9035
Using the DoL's online system, your employer will file the ETA Form 9035. They can also file it offline if they do not have access to the internet or suffer from physical disabilities.

Step 2: Approval of LCA
The DoL will either reject or accept the LCA within seven days of submitting the ETA. If there are rejections the DoL will detail all the reasons for the same. Your employer can sort out all the mentioned issues and resubmit the form.

Step 3: LCA Validity
The LCA validity is different for various visas:

  • H1B- Initial period of three years
  • H1B1- valid for three years
  • E3- valid for two years

The LCA loses its validity if your employer becomes H1B dependent or if they face work stoppage.

Step 4: LCA Renewal
There is no such thing as LCA renewal. Your employer can only file for a new LCA when your H1B is also filed for renewal. Therefore, everytime your I-129 is filed for transfers or renewals, your employer must file a new LCA.
Generally, the processing time for LCA is about seven days if your employer has participated in the LCA processing or sponsorship before using the iCERT system. Besides, first-time sponsors should note that the LCA filing system may not recognize their Federal Employee Identification Number or FEIN. The DoL may require an extra five days to verify the FEIN. The time may verify for every case, depending on how busy the DoL is at that time.

Let's next deal with the LCA fee details.
Please note that the LCA comes free of cost for non-immigrant employees. Employer will only incur expenses if they choose to hire an attorney for filing the LCA.

Checking for LCA Status
The US Department of Labor used to have iCERT system, which allowed users to check LCA status online. However, in 2020, the DOL announced the decommissioning of the iCERT and migration to the FLAG system.

The FLAG or the Foreign Labor Application Gateway System does not have an option for public to view or verify the LCA details using the LCA Case Number in their website. Only H1B employers or sponsors are allowed to login to do LCA status check.

How to Check LCA Status Using LCA Case Number
There are two options for employers to check the LCA status using the LCA Case Number.

Option1:
The LCA Case Number is a unique 15-digit number given by the Department of Labor for every single LCA application filed with the DOL using Form 9035 and 9035E. The LCA Case Number can be found in the footer of every page or in Page 6 of the LCA form.
You can login to the DoL's FLAG website to check your case status. Although you can check the status without your employer's help, you can only view the basic information because the website works only for the recent fiscal year data.

Option 2:
The second option is to check the status on the DoL's Data Disclosure Page, which is the Office of Foreign Labor Certification (OFLC) Performance Data. To check the status, you should:

  • Download the excel file given under the LCA programs panel.
  • Open the file and check the data.

The DoL uploads new data only in April, July, October, and January. So, what you are viewing might be outdated data which may not include your LCA details if you have filed them just recently. Generally, an LCA is certified within 15 days of filing. Hence, you may never be able to get its online status in the FLAG system.
The DOL also makes a public disclosure so that the public can review the data in the form of Excel files. The problem with these files is that they are in a large format with thousands of rows. Fortunately, there are websites that has these files in a consumable format where you can enter your LCA Case Number and search for your details. If the number matches the file, the portal will display the details.

What Happens After the LCA is Approved?
Once the LCA is approved, your employer, attorney, or the accredited representative must apply for the H1B visa. They must login to the USCIS website and submit the Form I-129 and the approved LCA.

What To Do if The LCA is Denied?

Sometimes, the DoL will return or deny the LCA if it does not fulfill the given requirements. The reasons for denial may include:
1. Incomplete LCA
The DoL will not accept LCA's that lack the required attestations and fail to state details such as:

  • Job position
  • Salary
  • Existing wage
  • Period of employment
  • Absence of a signature for forms submitted via email.

2. Inaccurate details

The ETA 9035 or 9035E will not be approved by the DoL if it has any one of the following inaccuracies:

  • Filing an application in error
  • If the ETA receives a notice from the administrator of the Wage and Hour Division (WHD) that the employer is disqualified from hiring non-immigrant workers.
  • If the salary stated in the LCA is below Fair Labor Standard's minimum wages.
  • If the LCA is submitted six months earlier before the start date of the period of the intended employment.

The DoL will clearly state the reasons for denying your LCA. Although the LCA cannot be motioned or appealed, the DoL allows you to rectify the problems before the H1B filing window in April. This is why your employer must sort the issues and refile before the H1B filing window opens in April.

The Conclusion
The LCA make seem like one small step in the entire H1B process. However, without this step, you cannot progress to the other stages in the H1B process. Most H1B applicants get only one chance per year to file their petitions and obtain their visas, if they are lucky. Therefore, you must ensure that your employer has the experience to handle these complexities and make the H1B process as smooth as possible.

For any information regarding LCA--what it is, application process and other details regarding filing LCA, visit TechFetch H1B. We are your one-stop site for any information you need about the H1B Visa process as a whole.

**Disclaimer: All H1B processes are subject to change. Please refer to the USCIS website for the latest updates.

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