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What Is the Labor Condition Application?

labor condition application

heAll US employers willing to sponsor foreign citizens for H-1B visa must submit the labor condition application (LCA) first. Employers must submit a certified LCA with the Department of Labor before filing an H-1B petition, ensuring the H-1B employee’s job does not negatively impact 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.

Many people often confuse the LCA with the labor certification application that US employers must 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 must conduct specific recruitment steps and can only submit the application if they cannot find a qualified US employee. In contrast, employers can file the LCA without conducting any recruitment steps, making it a much simpler 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.

  1. That the employer will offer the same benefits package to similarly employed US workers and H-1B employees.
  2. That the employment of the H-1B worker will not adversely affect the working conditions of similarly employed US employees.
  3. 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.
  4. 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 employers file LCAs online through an electronic system, and you can find the LCA link here. Employers must create an employer account in order to file the LCA. Alternatively, the employer’s counsel can file the LCA through their attorney account. Employers can submit LCAs to the Department of Labor by mail if they obtain prior approval for this method. They must file the LCA no more than six months before the employment begins. There is no fee for filing the LCA with the Department of Labor.

LCA Timeline

The Department of Labor usually approves the LCA within seven (7) business days from the filing date. They reject the LCA only if it is incomplete or contains obvious inaccuracies. The Department of Labor may approve the LCA for a maximum period of three (3) years. After receiving certification, the employer must print and sign the LCA. 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.

KAASS LAW is authorized to practice law in California. Practice areas of our attorneys include employment law, immigration law, and more.

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