In very general terms, the Labor Condition Application (“LCA”) is a prerequisite process that must be completed and certified by the Department of Labor prior to the submission of a petition to classify a worker in H-1B, H-1B1 or E-3 visas.
Employers seeking to hire H-1B, H-1B1, and E-3 nonimmigrant in specialty (occupations or H-1B nonimmigrant as fashion models of distinguished merit and ability) must submit either the Form ETA 9035 or the Form ETA 9035E to the designated certifying officer in the Department of Labor (Department or DOL), Employment and Training Administration (ETA) Application Processing Center.
The LCA is basically an attestation by an employer seeing to hire a worker in one of the statuses listed above that four basic conditions of employment have been met:
- the employer is paying the nonimmigrant at least the higher of the actual wage paid by the employer to others in the same occupation with similar experience and qualifications or the prevailing wage for the occupation in the geographical area of the worksite;
- that the employment of the nonimmigrant will not adversely affect the working conditions of similarly employed workers;
- that there is no strike, lockout or work stoppage in the occupation for which the nonimmigrant is being hired; and,
- that notice of the hiring of the nonimmigrant has been provided.
A few new requirements were added in 1998, when the annual H-1B cap was raised. However, these requirements apply only to “H-1B dependent” employers, a concept also created in 1998. Whether an employer is H-1B dependent depends on the following guidelines:
- If the employer has over 50 employees, the employer is H-1B dependent if at least 15% of the workforce is comprised of H-1B visa holders.
- If the employer has 26-50 employees, the employer is H-1B dependent if it employs more than 12 H-1B workers.
- If the employer has 25 or fewer employees, the employer is H-1B dependent if it employs more than seven H-1B workers.
While in most cases the new requirements apply only to H-1B dependent employers, they also apply to employers who have been found to have committed a willful failure or misrepresentation with regard to any attestation made on the LCA. Also, H-1B dependent employers are not subject to the new requirements when they are filing an LCA that covers only “exempt” H-1B workers. Exempt workers are those who are paid at least $60,000 annually or who have obtained a master’s degree or higher in a field related to the intended employment. If the employer is H-1B dependent, it must comply with these requirements:
- The employer must attest (swear under oath) that it has not and will not “displace” a US worker during the period from 90 days before the H-1B petition is filed until 90 days after it has been filed.
- The employer must attest that it has taken “good faith steps” to recruit US workers for the job, and that they have offered it to any US worker who applied that was at least as qualified as the H-1B nonimmigrant.
Once the LCA has been filled in, it is submitted to the Department of Labor (DOL). Under the 1990 law, the DOL is supposed to certify the LCA within seven days of submission, but there is little way to enforce this. The reality is that even with a new automated faxback system, the Department of Labor still frequently takes more (sometimes much more) than seven days to certify an LCA.
Within one business day of filing the LCA, the employer must establish a public access file that may be viewed by any person. This file must include a copy of the LCA, a statement of the actual wage received by the H-1B worker, the prevailing wage, including its source, whether the state or a private survey is used, a memo from the employer explaining the actual wage determination, and evidence that the LCA has been filed.
In addition, the employer must keep other information that need not be made available to the public. This includes payroll data for all employees in the same occupations as the H-1B worker, a calculation of the actual wage paid the H-1B worker, the raw data behind the prevailing wage determination, documentation of any fringe benefits provided workers, and evidence that the H-1B worker has been given a copy of the LCA.
Once approved, an LCA is valid for three years.
If you have any questions pertaining to LCA, please call the immigration lawyers at Gopal & Pedigo, PC or visit our website at www.tnimmigration.com. We are conveniently located near Nashville International Airport in Nashville, TN.