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H1B Labor Condition Application: An Overview
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The Labor Condition Application, or LCA, is a prerequisite to H1B approval. The LCA, Department of Labor Form-9035, contains basic information about the proposed H1B 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 also document compliance with the LCA requirements in a public access file.

  1. Filing the Labor Condition Application (LCA)

    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 LCAs by mail. The LCA must be certified by the DOL before the H-1B petition may be submitted to USCIS.

    At the present time, e-filing through the iCERT portal is taking about 7 days.  The DOL is hoping to shorten this time frame as they work the bugs out of this new electronic filing system.

    A single Labor Condition Application for H1B may be filed for multiple positions. Each LCA is limited to one occupation with specified job duties. If the employer places an H1B nonimmigrant outside the areas of employment listed on the H1B Labor Condition Application, the employer must consider whether to file a new LCA and an amended I-129 petition with the USCIS.

    The LCA must be certified by the DOL and submitted with the Form I-129 before the H1B petition may be approved by USCIS.

    CASE SCENARIO

    Q: Company A wishes to hire Jan, who is currently working on an H1B visa for Company B. They extend an offer to Jan who accepts it and returns the signed offer letter to Company A. Company A knows that Jan can begin work as soon as a new I-129 has been filed for her so they complete and submit the LCA through the new iCERT portal. Because they want Jan to start as soon as possible they submit the I-129 without waiting for the LCA (it is currently taking DOL about 7 days to certify and return an LCA). Jan starts work for Company A the day after the I-129 is filed. Will she run into problems in this situation?

    A: Yes. A Form I-129 for H1B must include a certified LCA to be complete. The USCIS will either reject the petition or request the LCA through an RFE. In either case Jan has entered into unauthorized employment because the I-129 was not properly filed. USCIS may approve the new H1B status but will not approve the change of employer. Jan will have to depart the US and return, using her old H1B and new approval notice, or she may have to obtain a new visa H1B visa before she can return.


  2. Attestations made by employer in LCA

    By signing and filing the H1B Labor Condition Application, 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

  3. Public Disclosure/Public Access File

    The employer must make available at its offices for public examination a copy of the LCA and necessary supporting documentation regarding the H-1B worker and other similarly situated employees. Specifically, the employer must create and 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 waget

    Copy of prevailing wage determination from state employment security agency or description of survey or other source used

    Copy of notice to union (if applicable) or postings

    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)

    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 LCAs filed by the predecessor employer and a list of the affected LCAs

  4. Withdrawing the Labor Condition Application (LCA)
    In order to limit any potential liability, the employer must withdraw a certified LCA if the H-1B employee working under it terminates 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.

Conclusion

If you are an employer who has questions regarding LCA, consult a VisaPro attorney. We also cover the latest happenings on work visas in Immigration Monitor, our monthly newsletter. Click here to subscribe to Immigration Monitor.

If you have questions about what steps you should take in your particular situation, consult a VisaPro immigration attorney. We will be happy to guide you through the process.


The above article is brought to you by "VisaPro.com". VisaPro’s US Immigration Lawyer Services include H1B visa, H-2B, L-1 visa, E-3 and over 100 Immigration Services.

The information in this article is not intended to be legal advice. If you have questions specific to your case, we suggest that you consult with the experienced immigration attorneys at http://consultattorney.visapro.com

Visit VisaPro regularly for updates and the latest immigration news at http://www.visapro.com


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