Introduction

H1B approval requires a certified Labor Condition Application (ETA Form 9035), endorsed by the Department of Labor (DOL) prior to submitting the H1B petition to USCIS. Furthermore, the employer must maintain a public access file demonstrating adherence to the LCA requirements.

To assist H1B employers and employees, we provide an overview of the H1B Labor Condition Application (LCA), including filing procedures and compliance obligations.

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Understanding the H1B Labor Condition Application (LCA)

The Labor Condition Application (LCA) includes essential details regarding the proposed H1B employment, such as the wage rate, duration of employment, and work site location.

IMPORTANT:
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.

Case Scenario Example

Company A intends to hire Santosh, who is presently employed under an H1B visa with Company B. Without waiting for the Labor Condition Application (LCA) to be certified, Company A submits the H1B petition through the DOL iCERT portal, eager for Santosh to begin work as soon as possible. Santosh starts working for Company A the day after the H1B petition is filed. Will this situation pose any issues for him?

Yes, there will be problems. The H1B petition must include a certified LCA. USCIS will either reject the petition due to the absence of a certified LCA or request it via a Request for Evidence. Ultimately, USCIS will deny the H1B petition because there was no certified LCA at the time of filing. Unfortunately, Santosh will have engaged in unauthorized employment because the H1B petition was not properly submitted. He will need to leave the US and can return using his previous H1B petition (and visa, if available) if he wishes to resume working for Company B. Otherwise, Company A will need to refile the H1B petition with a certified LCA, and Santosh will need to await its approval.

Submitting the Labor Condition Application (LCA)

An H1B employer is required to submit the ETA Form 9035:

1. Electronically through DOL’s iCert portal at www.lca.doleta.gov, or
2. By mail, only if the petitioner has a “physical disability or lack of access to the Internet” preventing electronic filing. Pre-approval from DOL is necessary before filing the LCA by mail.

Note: Currently, DOL is taking 7 business days to certify electronically filed LCAs.

Change in H1B Work Location

Every LCA is specific to a singular job title with designated job duties at specified location(s), but it can be applied to multiple H1B petitions.

If the employer assigns an H1B employee to a location not listed on the LCA or the corresponding H1B petition, the employer must file a new LCA and an amended I-129 petition with USCIS.

Attestations Made In The LCA

By signing and submitting the Labor Condition Application for an H1B petition, an employer makes four attestations:

1. It will provide the H1B employee with the same benefits offered to US workers and compensate the H1B employee at either the actual wage paid to others with similar experience and qualifications for the specific job OR the prevailing wage for the occupation in the area of employment.
2. It will ensure that the working conditions provided to the H1B employee will not negatively affect the conditions of similarly employed workers in the area.
3. There are no strikes or labor disputes ongoing at the place of employment within the same occupation listed on the LCA.
4. It has notified the union bargaining representative (if applicable) or, if there is no bargaining representative or union, directly informed the workers by posting a notice of filing at the place of employment for a minimum of 10 business days. Additionally, the H1B worker has been provided with a copy of the LCA.

Public Access File

The DOL requires employers to share the certified LCA and related documentation for H1B workers and similar employees at their offices for public review. This entails establishing and maintaining a public access file (PAF) to ensure compliance in each H1B case. The PAF must be kept and available for public inspection for at least one year after the employment dates stated on the LCA or for one year after the LCA is withdrawn.

The public access file must include:

• A copy of the certified LCA (bearing the employer’s original signature and LCA cover pages).
• Records detailing the wage to be provided to the H1B employee.
• Explanation of the methodology employed to ascertain the actual wage disbursed.
• Documentation concerning the prevailing wage and its source.
• A copy of the notice sent to the union (if applicable) or employees (the Notice of Filing).
• An overview of the benefits plan offered to the H1B employee, indicating its parity with that offered to similarly employed US workers, with an elucidation of any discrepancies, if present.
• A copy of the certified LCA, endorsed with the signature of the H1B employee, serving as proof of their receipt of the document.
• Documentation regarding any adjustments made to the wage (e.g., annual raises or cost-of-living increases).
• In cases where the employer is H1B dependent or has been deemed willful violators of the LCA regulations, evidence of efforts made to recruit US workers.
• Following the establishment of the PAF, in instances where the employer experiences a change in corporate structure and opts not to file amended petitions for each acquired H1B, a sworn statement from the new employer expressing acceptance of all obligations under the LCAs filed by the previous employer, along with a list of the affected LCAs.

Withdrawing The Labor Condition Application (LCA)

To minimize potential liability, such as the obligation to pay back wages, the employer must revoke the certified LCA if the employment of the H1B worker is terminated, provided that no other H1B worker is employed at the same workplace under the same LCA and there is no ongoing investigation by the DOL into the specific application.

IMPORTANT: Breach of the LCA attestations can result in civil penalties, a ban on obtaining further visas for a period of at least 1 to 3 years, and holding the employer accountable for paying back wages.

Conclusion

The H1B Labor Condition Application is a vital aspect of the H1B petition. Adhering to the intricate LCA regulations is crucial for all employers employing H1B workers.