Areas of Practice | LCA Compliant

Overview

The Labor Condition Application, or LCA, is a prerequisite to H-1B approval. The LCA, Form-9035, contains basic information about the proposed H-1B employment such as rate of pay, period of employment, and work location. It also contains four standard attestations or promises that the employer must make. The employer must document compliance with the LCA requirements in a public access file.

The LCA form can be found at:
http://www.dol.gov/libraryforms/go-us-dol-form.asp?FormNumber=5

The H-1B form can be found at:
http://www.dol.gov/libraryforms/go-us-dol-form.asp?FormNumber=3

Filing

An H-1B petitioning employer must file the LCA on the ETA-9035E electronically over the Internet at www.lca.doleta.gov, or 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 can file the Form ETA-9035 directly with the DOL. However, please note that the employer must first obtain an approval from DOL to send the LCA by mail. The LCA must be certified by the DOL before the H-1B petition may be submitted to USCIS.

A single LCA may be filed for up to 999 workers in up to two locations. Each LCA is limited to one occupation with specified job duties. If the employer places an H-1B nonimmigrant outside the areas of employment listed on the LCA, the employer must consider whether to file a new LCA and an amended I-129 petition with the USCIS.

Attestations made by employer in LCA

By signing and filing the LCA, an employer makes four attestations or promises. The employer attests:

  • It is paying (and will continue to pay) the H-1B employee wages which are at least the actual wages paid to others with similar experience and qualifications for the specific job; or the prevailing wage for the occupation in the area of employment is based on the best information available
  • It will provide working conditions for the H-1B employee 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 periods, and fringe benefits
  • There is no strike or labor dispute at the place of employment
  • It has provided notice of this filing to the bargaining representative (if any); or if there is no such bargaining representative, it has posted notice of filing in at least two conspicuous locations at the place of employment for a period of 10 business days

Public Disclosure/Public Access File

In addition to posting the notice of H-1B at one’s workplace, and employer must also maintain a public access file to document compliance in each H-1B case. The public access file must include:

  • Copy of the LCA (with employer’s original signature and cover pages);
  • Documentation of the wage to be paid to the H-1B employee (offer letter or other);
  • Explanation of system used to set the actual wage;
  • Copy of prevailing wage determination from state employment security agency or description of survey or other source used;
  • Summary of benefits plan offered to the H-1B employee showing that it is the same as that offered to similarly employed U.S. workers (and H-1B employee’s elections, if any);
  • Copy of certified LCA with signature of H-1B employee as proof he or she received copy;
  • Documentation regarding any adjustment to the wage (e.g., annual raise or cost of living increase); and
  • Where the employer undergoes a change in corporate structure, and does not choose to file amended petitions for each H-1B it acquires, a sworn statement from the new employer that it accepts all obligations under the LCA filed by the predecessor employer and a list of the affected LCA.

Withdrawing the LCA

In order to limit any potential liability, the employer must withdraw a certified LCA if the H-1B employee working under it is terminated from his/her H-1B employment. This may be done if no H-1B employee is employed at the place of employment pursuant to the LCA and no investigation has been commenced regarding the particular application.

Strasser Asatrian offers competent, experienced, and knowledgeable, representation throughout each intricacy of this multilayer process.