A certified Labor Condition Application (ETA Form 9035), is a prerequisite to H1B approval. The LCA must be certified by the Department of Labor (DOL) before the H1B petition is submitted to USCIS. The employer must also document compliance with the LCA requirements in a public access file.
For the benefit of H1B employers and H1B employees, we present here an overview of the H1B LCA along with the filing procedures and compliance requirements.
The Labor Condition Application (LCA) contains basic wage and location information about the proposed H1B employment. The LCA contains the rate of pay, period of employment, and work location.
It also contains four standard attestations that the employer must make.
The LCA must be certified by the DOL and submitted with the Form I-129 in order for the H1B petition to be approved by USCIS.
Company A wishes to hire Santosh, who is currently working on an H1B visa for Company B. They extend an offer to Santosh who accepts it and returns the signed offer letter to Company A. Company A is aware that Santosh can begin work as soon as a new H1B petition has been filed. Company A completes and submits the LCA through DOL iCERT portal. Because they want Santosh to start as soon as possible they submit the H1B petition without waiting for the LCA to be certified. Santosh starts work for Company A the day after the H1B petition was filed. Will he run into any problem in this situation?
A: Yes. The H1B petition must include a certified LCA. The USCIS will either reject the petition for lack of the certified LCA, or request the certified LCA through a Request For Evidence. Ultimately, USCIS will deny the H1B petition for lack of an LCA that was certified as of the date of filing the H1B petition. Unfortunately, Santosh has entered into unauthorized employment because the H1B petition was not properly filed. Santosh will have to depart the US and he can return using his old H1B petition (and visa, if available) if he wishes to return to work for Company B. Otherwise, Company A will need to resubmit the H1B petition with a certified LCA and Santosh will need to wait outside the country until the H1B petition is approved before he can return to the U.S.
An H1B employer must file the ETA Form 9035:
At the present time, it is taking the DOL 7 business days to certify e-filed LCA.
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Each LCA is limited to one job title with specified job duties for specific location(s), but can be used for more than one H1B petition.
If the employer places an H1B employee outside the area of work location(s) listed on the LCA and the H1B petition, the employer is required to file a new LCA and an amended I-129 petition with USCIS.
Learn more about when H1B address change of work location requires an amended H1B petition and LCA filing.
By signing and filing the Labor Condition Application for an H1B petition, an employer makes four attestations (or promises). The company attests that:
The DOL requires that the employer must make available for public examination a copy of the certified LCA and necessary supporting documentation regarding the H1B workers and other similarly situated employees at its offices. Specifically, the employer must create and maintain a public access file (PAF) to document compliance in each H1B case.
The PAF must be maintained and be available for public inspection for at least one year beyond the dates of the employment on the LCA or for one year from the withdrawal of the LCA.
The public access file must include:
In order to limit any potential liability, including the payment of back wages, the employer must withdraw the certified LCA if the H1B employee's employment is terminated, as long as no other H1B worker is employed at the place of employment pursuant to the same LCA and no investigation has been commenced regarding the particular application by the DOL.
Violations of the LCA attestations can expose an H1B employer to civil fines, barring of the employer from obtaining further visas for a period of at least 1 to 3 years, and making the employer liable for payment of back wages.
H1B Labor Condition Application is an integral part of the H1B filing. Compliance with the complex LCA regulations is critical for all employers who employ H1B workers.
Combining our legal knowledge with extensive experience representing companies undergoing DOL investigations, VisaPro provides clients with the tools necessary to run a successful H1B process. VisaPro can conduct audits of H1B LCA and Public Access File compliance, assisting H1B employers document their good faith efforts to comply with all regulations.
If have questions regarding Labor Condition Application, or would like to discuss compliance issues specific to your company, schedule a FREE Consultation. Our experienced immigration attorneys will be happy to guide you.
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