H-1B Labor Condition Application

The H-1B visa is one of the most popular immigration options in the U.S. Understanding every step along the application process is vital to increasing your chances of approval. One of these steps is acquiring an H-1B Labor Condition Application (LCA) from the Department of Labor. Let’s break this complex form down and discover exactly what is required to successfully file for an H-1B.

Behind the H-1B Visa

The H-1B is a nonimmigrant work visa that allows those with bachelor’s degrees and specialty occupations to work for a U.S. employer for three to six years in the country. With an H-1B, you can work for most employers either full or part-time as well as work for several employers simultaneously.

Because of the relatively low requirements and the flexibility it offers, the H-1B is highly sought-after. So much so, that the USCIS has implemented an annual cap on the number of visas that are issued each year. To determine which petitions go on for processing, there is a random lottery held each year. Those that are selected are processed, though they are not necessarily approved.

The H-1B filing window opens on the first business day in April every year. Any cap-subject petitions filed before that time will be rejected. The window will remain open until either 7 days have passed or 80,000 petitions have been gathered, whichever comes later. After that, the window will close and you will need to wait until the following year to apply for an H-1B.

Not all petitions are subject to the cap, but you should make sure that you know the details of your case before attempting to file an I-129 petition for an employee’s H-1B visa. Hiring an attorney is the best way to make sure your H-1B case is handled the right way.

However, in the interest of protecting the jobs and working conditions of U.S. employees, the government will require an LCA from the employer before the petition can be filed.

 

H-1B LCA - Labor Condition Application

What is an LCA in H-1B?

The Labor Condition Application is a form that a sponsoring employer files with the Department of Labor on behalf of any H-1B employees that the employer may be hiring. It is often one of the first steps that a sponsoring employer must take when trying to hire an H-1B employee. Without an LCA, the employer cannot file the I-129 petition for the H-1B visa.

The 4 Attestations of the LCA

In order to obtain a Labor Condition Application, your employer will need to make 4 attestations in an effort to protect anyone who is already working for the employer. These LCA attestations are as follows:

  • The employer must attest that the beneficiary is going to be paid more than both the actual wage and the prevailing wage. The actual wage is what others in the company make who do the same job as the beneficiary would be doing. The prevailing wage, on the other hand, is a wage number produced by the Department of Labor that takes into account the position and the geographic location of the job (for example, the prevailing wage for a software engineer in San Francisco, California will likely be much higher than in Little Rock, Arkansas).
  • The employer must attest that hiring the beneficiary will not negatively impact the present working conditions of the current employees. The beneficiary must also be given similar working conditions to those of the current employees in the same position.
  • The employer must attest that no strike, lockout, or any other cessation of work is in effect when the LCA is filed. This is to prevent employers from hiring H-1B workers to replace striking workers.
  • Lastly, the employer must attest that all current employees have been notified of the intent to hire the beneficiary and that it was not done in secret.

The LCA Application Process

To get an LCA, your employer needs to file an ETA 9035 with the Department of Labor long before the beginning of the H-1B filing window. Employers should not file an LCA more than 6 months before they expect their new employee to start the position. This way, you can avoid the risk of having the two overlap, causing you to miss the filing window. All LCA applications are submitted electronically through the FLAG system, with two exceptions being physical disability or lack of internet access. To mail your LCA application, you will have to receive permission from the Administrator of OFLC.

It is important to note that an employer can file one LCA for multiple H-1B employees as long as they are all going to be working in the same position (such as filing one LCA for five software engineers).

If you are a company or a start-up that’s applying for a LCA for the first time, you should allow yourself ample time to process your application. The reason being is that your Federal Employer Identification Number might not yet be in the DOL’s filing system, and the authorities will need to verify your FEIN. This can take anywhere from 5 to 10 days, depending on their workload.

Prepare for Your H-1B LCA Filing

The best way to prepare for your H-1B LCA submission is to start preparing your documents well in advance. Since there is a yearly cap on these visas and the application window is very short, the filing system can become overloaded and experience technical difficulties. H-1B registration officially closes on March 31 every year, and companies will begin submitting their applications during the first weeks of April. A large number of applicants who are filing their LCAs at the same time quite often slows down or even shuts down the filing system.

What is on the H-1B LCA Form?

To start the entire process, you must submit the H-1B LCA form (ETA-9035 and 9035E). It has all the necessary information for DOL to assess your eligibility for employing a foreign worker. On the form, you will have to fill in the following sections:

  • Visa information that the LCA is intended to support
  • Information about the offered position, such as the job title and period of intended employment
  • Employer information, which includes business name, FEIN, and NAICS code
  • Contact information for the employer
  • Attorney or agent information
  • Workplace information such as the number of workers employed under LCA, PWD information, and wage intended to pay the new foreign worker
  • Other administrative information

LCA Denial

If your H-1B LCA is denied, the DOL will provide you with the reasons for the denial in the notice. It is not likely that an LCA denial can be appealed or motioned, but this obstacle can be overcome by fixing these problems and refiling before the H-1B filing window in April. This is why it is important to obtain an LCA well before the start of the filing season.

H-1B LCA Example Scenario

Danylo is a highly sought-after web developer and received an offer of employment from a U.S.-based company. The company wanted him to start as soon as possible. Danylo is from a visa-free country and came to work in the U.S. a week after his employment offer. Only after a few months of employment the company began submitting the necessary H-1B LCA documents for their new foreign worker. What problems can arise in this situation?

For Danylo to be lawfully employed as a foreign worker, he must apply for the H-1B visa with an already approved LCA that his employer should’ve submitted. In this situation, the USCIS will likely reject the LCA application and Danylo’s H-1B visa application. In rare cases, USCIS might require additional evidence to clarify the employment situation of the foreign worker.

Labor Condition Application FAQs

Here are some commonly asked questions about the LCA and how it works with the H-1B visa. If you have a question that is not listed, you can contact us for a consultation for your visa and LCA.

What is the difference between a Labor Condition Application and a PERM Labor Certification?

One question we often get is centered around the difference between these two since the names seem so similar. These both involve the Department of Labor and are steps of the immigration process that aim to protect U.S. workers. However, the LCA is exclusively for the H-1B and simply requires that the employer properly informs current workers of the intent to hire as well as ensuring that the H-1B worker is not being hired to replace striking workers.

The PERM, on the other hand, is used for employment-based immigrant visas (otherwise known as green cards). Green cards such as the EB-2 or EB-3 require the PERM in order to petition. With a PERM, your employer must go through a recruitment process in order to determine that no eligible U.S. workers are available for the position. Therefore, the PERM is a much more involved process than the LCA.

How much does an LCA cost?

Fortunately, just like with the PERM Labor Certification, there is no filing fee for the LCA.

What is the LCA processing time?

The typical processing time is 7 days, but this can easily vary from case-to-case based on how busy the DOL is at the time. However, if this is the first time your company submits an LCA, you should expect your processing time to be over 14 days. Depending on the workload and the number of applications, processing times may differ.

Do any other visas require an LCA?

Yes. The H-1B is not the only visa that requires an LCA. The H-1B1 (which is the H-1B for citizens of Singapore and Chile) and the E-3 (for Australian citizens) both also require the LCA.

Can I transfer my LCA to another employer?

Unfortunately, there is no way to simply transfer your approved LCA from your current sponsoring employer to another one. Instead, your new employer will need to file a new LCA on your behalf just like they will need to file a new I-129 should you wish to transfer your H-1B status.

What is the LCA validity period?

The initial validity period for the H-1B Labor Condition Application is three years, just like the H-1B. Some factors that can shorten this are the termination of your H-1B status or a strike or lockout at your place of work. Also, if your employer becomes H-1B dependent, this can have a negative impact on your LCA.

What does it mean when an employer is H-1B dependent?

An H-1B dependent employer is one that, according to the USCIS, has too many H-1B workers relative to the total number of employees that work for the employer. Here is a breakdown of the proportions that qualify an employer as H-1B dependent:

  • If your employer has 25 or fewer employees, no more than 7 of them can be H-1B workers.
  • If your employer has between 26 and 50 employees, no more than 12 of them can be H-1B workers.
  • If your employer has more than 50 employees, no more than 15% of them can be H-1B workers.

If your employer gains H-1B dependent status (hires too many H-1B employers) after the LCA approval but before your H-1B approval, a second LCA will need to be filed in order to move forward.

Being considered H-1B dependent will require your employer to make three more attestations on top of the ones previously mentioned on this page. They are:

  1. That no U.S. employee will be displaced 90 days before or 90 days after the H-1B petition is filed.
  2. That the H-1B employee will not be placed at the workplace of another employer (e.g. staffing agencies) unless the sponsoring employer makes a thorough inquiry as to whether or not the receiving employer has plans to displace any U.S. workers within the above 180-day time frame.
  3. That the employer will attempt to recruit U.S. workers for the desired position before filing the H-1B petition. This may look similar to a PERM Labor Certification.

However, it is important to note that, if you have an advanced degree or will be making a salary greater than $60,000 annually, then the USCIS may choose to waive these attestations even if your employer is considered H-1B dependent.

Do I need to renew my LCA?

Just like in the case with an LCA transfer, you cannot renew your Labor Condition Application. Your employer will need to file a new LCA at the time of your H-1B renewal. Essentially, every time a new I-129 is filed (e.g. for transfers and renewals), a new LCA must be filed. So, when you are nearing the end of your first initial 3 years on H-1B status, make sure that your employer files an LCA.

How VisaNation Law Group Can Help

The Labor Condition Application is just one small step along the H-1B journey. Because most H-1B applicants only get one shot per year, it is extremely important that your petition, fees, supporting evidence, and LCA are all perfect the first time rather than going through rejection cycles. The best way to do this is to have an experienced H-1B attorney handle your case from start to finish.

VisaNation Law Group has a team of dedicated work visa attorneys that have helped countless individuals get their LCAs and successfully petition for the H-1B visa. They work with both individual beneficiaries as well as sponsoring employers to implement an optimized H-1B process that works for you.

You can fill out this contact form and schedule your consultation today.

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