LCA H1B: Labor Condition Application for Specialty Occupation

Filing a Labor Certification Application is a critical stage of the H1B visa application process.

The LCA is applied for by the US employer/sponsor prior to petitioning for the visa on the worker’s behalf.

In this guide for employers, we explain what the LCA is and share practical advice on applying for LCA certification and what happens if an LCA is refused.

 

What is LCA for H1B status?

In the context of sponsoring a foreign worker, the acronym “LCA” stands for “Labor Condition Application”. An LCA is an application filed with the US Department of Labor (DOL) by prospective US employers on behalf of overseas nationals applying for work authorization for certain nonimmigrant statuses, including H1B status. The DOL is an executive department responsible for promoting the welfare of job seekers and workers.

H1B status refers to the classification available to foreign workers to either perform services in a specialty occupation in the United States or, alternatively, as a fashion model of distinguished merit and/or ability. A specialty occupation refers to job roles that require highly specialised knowledge, although most graduate-level jobs with a bachelor’s or higher degree as a minimum entry requirement will usually qualify as a specialty occupation.

The H1B visa program enables US employers (or authorised agents) to temporarily hire specialty occupation workers and distinguished fashion models, initially for up to 3 years. However, to participate in this program, the employer (or agent) will first need to obtain DOL certification before petitioning on behalf of their proposed new recruit. In this context, “employer” means a person, firm, corporation, contractor or organization that has an employment relationship with the nonimmigrant worker(s) and/or US worker(s).

 

Who needs LCA certification and why?

The employers (or agents) of prospective specialty occupation workers and distinguished fashion models must obtain a certification of an LCA from the DOL prior to petitioning to United States Citizenship and Immigration Services (USCIS) on the beneficiary’s behalf.

The Immigration and Nationality Act (INA) requires that hiring a foreign worker will not adversely affect either the wages and working conditions of any US workers comparably employed. To comply with the INA, the DOL’s regulations require that the wages offered to an overseas national must be the prevailing wage rate for the occupational classification in the relevant area of employment. As such, the application for LCA certification includes certain attestations to this effect, a violation of which can result in fines, a bar on sponsoring petitions in the future, and other sanctions to the employer (or agent).

In addition to specialty occupation workers and fashion models, H1B status extends to those performing services of exceptional merit and ability relating to a US Department of Defense (DOD) cooperative research and development project. However, LCA certification is not needed for those working as a DOD researcher and development project worker.

 

LCA certification requirements

The application for LCA certification requires the employer (or agent) to attest that it will comply with the following labor requirements:

• the employer (or agent) will pay the foreign H1B worker a wage which is no less than the wage paid to similarly qualified domestic workers or, if greater, the prevailing wage for the position within the geographic area in which the prospective H1B worker will be working
• the employer (or agent) will provide working conditions that will not adversely affect other similarly employed domestic workers
• at the time of the application, there is no lockout or strike at the place of employment
• the notice of the filing of the LCA with the DOL has either been given to the union bargaining representative or has instead been posted at the place of employment.

The notice of the LCA-filing must be provided no more than 30 days before the filing or will be provided on the day the LCA is filed with the bargaining representative in the occupation and area of proposed employment or, if no such representative exists, to workers in the occupation at the place(s) of employment by either electronic or physical posting. The notice must be posted for a total period of 10 days, except if employees are provided individual direct notice by e-mail, where notification need only be given once. A copy of the notice documentation must also be maintained in the employer’s public access file.

 

How to apply for LCA certification

The process for obtaining LCA certification from the Office of Foreign Labor Certification (OFLC) under the H1B program — where the OFLC is a division of the Employment & Training Administration within the DOL — involves the following steps:

Step 1: Obtain a prevailing wage
The requirement to pay a prevailing wage as a minimum is applicable for most employment-based visa programs involving the DOL. However, the H1B program requires the employer to pay the prevailing or actual wage paid to workers with similar skills and qualifications, whichever is the higher. As such, the required wage rate must be the higher of the actual wage rate (where this refers to the rate paid to all other workers with similar experience and qualifications who are performing the same job role) or the prevailing wage (where this refers to a wage that is predominantly paid to those in the same occupational classification in the area of proposed employment at the time the LCA is filed).

Additionally, for an LCA to be approved, an employer is not permitted to pay a wage that is lower than a wage required under any other applicable federal, state or local laws.

The prevailing wage rate can be defined as the average wage paid to similarly employed individuals within a specific occupation in the area of proposed sponsored employment, where employers can obtain this wage rate by either submitting a request to the National Prevailing Wage Center (NPWC) or by accessing other legitimate sources of information, including the Online Wage Library (OWL). Even though employers can independently determine the prevailing wage via OWL, or other sources, at the time of filing its LCA, they are encouraged to obtain a prevailing wage determination from the NPWC.

By obtaining the prevailing wage from the NPWC, employers are given “safe-harbor status.” This means that if your wage compliance is investigated, the US Department of Labor’s Wage and Hour Division will not then challenge the validity of the prevailing wage, provided this was applied using the correct geographic area, occupation and skill level.

To obtain a prevailing wage determination, you must complete Form ETA-9141 (Application for Prevailing Wage Determination) and submit this electronically with the NPWC. The NPWC will accept online submissions of Form ETA-9141 in the FLAG system for all visa programs, where “FLAG” stands for “Foreign Labor Application Gateway.” This is a cloud-based portal where, to create a FLAG account, you must register on DOL’s website.

Step 2: Filing an LCA with the OFCL
Employers must electronically submit a Labor Condition Application to the DOL through the FLAG system attesting to compliance with the requirements of the H1B program. This can be done using Form ETA-9035/9035E. Form ETA-9035 refers to the paper application, while Form 9035E refers to an electronic application, where the two exceptions to the requirement for electronic filing are employers with physical disabilities or those without internet access. However, an employer must petition the Administrator of OFLC for prior special permission to file an LCA by mail using Form ETA-9035.

You should carefully read and review the filing instructions before completing Forms ETA- 9035/9035E. These instructions can be accessed on the DOL website, where incomplete or obviously inaccurate Labor Condition Applications will not be certified by the DOL. This means that all required fields containing an asterisk (*) must be completed, in addition to any fields where a response is conditional as indicated by the section (§) symbol.

 

What information is required for LCA certification?

When completing Forms ETA-9035/9035E, you will need to provide the following:

• the type of visa classification supported by the application, where H1B will appear as one of the dropdown options on the application form
• the title of the job opportunity to be filled by the worker(s); the standard occupational classification (SOC) code and occupation title; if the position is full-time; and the period of intended employment, with start and end dates
• the total worker positions being requested for certification and the basis for this, such as new employment or a continuation of previously approved employment
• your legal business name as reported to the Internal Revenue Service (IRS); your trading name; your full address; your Federal Employer Identification Number (FEIN) from the IRS; and your North American Industry Classification System (NAICS) code
• contact information
• any attorney or agent information, if applicable
• the relevant employment and wage information
• the employer labor condition statements.

If you are filing an LCA for more than worker, the job title must be the same for all nonimmigrant workers working on a single LCA, although you may file additional LCAs as needed. You also cannot combine full-time and part-time positions on a single LCA.

 

How long does LCA processing take?

When it comes to case processing, Labor Condition Applications are typically reviewed by the OFLC within 7 working days. However, an LCA must not be submitted any more than 6 months before the beginning date of the period of employment. Equally, the end date of employment cannot be more than 3 years from submission of the LCA for H1B status.

Employers may check the status of applications they have submitted and directly access their certified applications at any time by logging into the FLAG system.

 

How much does LCA certification cost?

There is no cost to apply for LCA certification using either Form ETA-9035 or Form ETA-9035E, where the application is completely free for the employer and the prospective nonimmigrant worker. However, the employer may have some legal fees to prepare the LCA if they choose to use an attorney. Additionally, the cost to the employer to file the Form I-129 petition is $460, while the cost to the foreign worker to file Form DS-160 is $205.

 

How can an LCA refusal be dealt with?

If an LCA is denied, your application will be returned with reasons for the denial. You will be able to re-submit an LCA in order to get approval, although seeking expert advice from an immigration attorney is strongly advised in these circumstances.

 

What happens following LCA approval?

The H1B visa, as well as the H1B2 and H1B3 visas, are petition-based. This means that, as the prospective employer, you will be required to file an employment-based petition on behalf of your proposed new recruit with United States Citizenship and Immigration Services (USCIS). However, you must receive an approved LCA, if applicable, before filing Form I-129, Petition for a Nonimmigrant Worker, where only employers with certified LCAs may proceed with the petitioning process. The petition must also be approved by USCIS before an application can be made by your new recruit for an H1B visa.

When determining an H1B petition, USCIS must be satisfied that the sponsored job role constitutes a specialty occupation, or other qualifying job role, and that the individual looking to fill this role is qualified to perform those services. If approved, you will be sent a Form I-797, Notice of Action, at which stage your new recruit can submit an online application via the Department of State using Form DS-160 (Online Nonimmigrant Visa Application) and schedule an in-person interview with their local US Embassy or Consulate.

Even though obtaining LCA certification can be quick, the overall process to obtain H1B status can take several months, if not longer. If you are looking to retain an employee beyond their initial stay in the United States, you will also need to re-petition to USCIS, having submitted a fresh Labor Condition Application which has been approved. The maximum time that a foreign worker can remain in H1B classification is usually 6 years.

 

Need assistance?

NNU Immigration specialize in supporting employers with all aspects of talent mobility to the USA. If you have any questions regarding the H1B process, including compiling and filing the LCA, or for strategic guidance to optimize your mobility program, contact us.

 

LCA H1B FAQs

How long does it take to get a LCA for H-1B?

The process to get an approved Labor Condition Application (LCA) for an H-1B petition is typically 7 working days, where an LCA must not be submitted any more than 6 months before the beginning date of the period of employment.

 

Why LCA is required for H-1B?

United States’ legislation requires that the hiring of an overseas national will not adversely affect the wages and working conditions of US workers comparably employed, where a Labor Condition Application (LCA) includes certain attestations from the employer to this effect.

 

Is LCA needed for H-1B transfer?

If an H-1B worker is applying for a transfer to a different role with a new employer, a new Labor Condition Application (LCA) will need to be filed by the prospective new employer, before they petition on the beneficiary’s behalf.

 

Can H-1B be denied after LCA approval?

Obtaining approval of a Labor Condition Application (LCA), in which employers attest that hiring a foreign recruit will not affect the wages and working conditions of similar domestic workers, does not guarantee approval of an H-1B petition or visa.

This article does not constitute direct legal advice and is for informational purposes only.