What Is the Labor Condition Application?
All US employers willing to sponsor foreign citizens for H-1B visa must submit the labor condition application (LCA) first. A certified LCA is required for filing the H-1B petition for a foreign employee. The LCA is an application submitted with the Department of Labor to ensure that the employment of the H-1B employee will not adversely affect the wages and working conditions of US workers.
Form ETA 9035/9035E is a document that a prospective H-1B employer files with ETA when it seeks to employ nonimmigrant workers at a specific job occupation in an area of intended employment for not more than three years.
LCA is often confused with labor certification application which US employers have to file with the Department of Labor for most employment based immigrant visas. However, these two applications are different.
Before filing the labor certification application, US employers have to conduct certain recruitment steps and will be allowed to file the labor certification application only if they are unable to find a qualified US employee. In contrast, employers do not have to conduct any recruitment steps before filing the LCA which is a much more simple application compared to the labor certification application. LCA’s only purpose is to ensure that the employment of the H-1B worker will not negatively affect the wages and working conditions of US employees.
How does an employer validate LCA?
By submitting the LCA employers make several attestations required by law before the Department of Labor may certify the LCA: That the employer will pay the employee at least the prevailing wage for the specific occupation in the geographic area.
- That the employer will offer the same benefits package to similarly employed US workers and H-1B employees.
- That the employment of the H-1B worker will not adversely affect the working conditions of similarly employed US employees.
- That at the time of filing the LCA, there is no strike, lockout or work stoppage in the course of a labor dispute in the occupational classification at the place of employment.
- That notice of the filing the LCA was provided to the bargaining representative of the employer’s employees, or if there is no bargaining representative, the employer has posted notice of filing the LCA on its premises or has provided electronic notification of filing to all similarly employed workers.
Most LCAs are filed online through an electronic system, LCA link can be found here. Employers must create an employer account in order to file the LCA. Alternatively, the LCA can be filed through the employer’s counsel’s attorney account. LCAs can be submitted to the Department of Labor by mail provided that the employer has obtained prior approval from the Department of Labor to submit the LCA by mail. The LCA must be filed no more than six months before the commencement of the employment. There is no fee for filing the LCA with the Department of Labor.
The LCA is usually approved within seven (7) business days from the date of filing. The Department of Labor rejects the LCA only if it is incomplete or contains obvious inaccuracies. The LCA may be approved for a maximum period of three (3) years. After the certification, the LCA must be printed and signed by the employer. The employer must maintain the original in its files. Additionally, the employer must keep a copy of the signed LCA in the public access file created for the specific H-1B case. Another copy of the LCA shall be sent to USCIS with the H-1B petition.
Employers shall file the LCA about a month before submitting the H-1B petition, taking into account that it takes the Department of Labor seven (7) business days to certify the LCA. Employers should be aware that sometimes the online electronic system does not recognize the information submitted by the employer, and employers have to send additional verifying information. This usually happens with the Federal Employment Identification Number, and employers have to send additional documents to verify that the EIN number is a real one. If employers prepare for the submission of the LCA beforehand even in case of such complications they will have the certified LCA by the deadline for filing the H-1B petition.
Certification of the LCA is an important part of the process of filing the H-1B petition. Employers shall keep in mind that they must have a certified LCA by the deadline for filing the H-1B petition and shall prepare and submit the LCA beforehand to avoid any complications during the filing season.
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