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The Labor Condition Application (LCA) is a form employers must file with the United States Department of Labor Employment and Training Administration (ETA). Employers apply on the behalf of employees applying for a nonimmigrant H-1B, H-1B1 (Singapore and Chile) or E-3 (Australia) work visa.
Employers must submit Form ETA 9035/9035E to apply. If approved, the LCA is valid for up to three years of employment (two years for E-3).
What are an Employer’s Requirements for an LCA?
The main purpose of an LCA is for employers to attest to the employment details of H-1B, H-1B1 and E-3 applicants. Furthermore, The Department of Labor requires employers to maintain documentation that considers that following four labor conditions:
Wages and benefits.
Employers must provide nonimmigrant workers the same (or better) wages and benefits that are provided to other company employees doing similar work. Additionally, they must provide nonimmigrant workers the prevailing wages and benefits for similar jobs in their geographic area.
Nonimmigrant employment must not negatively affect the working conditions of employees doing similar work. The working conditions for nonimmigrant employees must also be similar to those of native U.S. employees.
There must not be “a strike, lockout or work stoppage” at the employment location when the LCA is signed and submitted. If a labor dispute arises after the LCA is submitted, employers have three days to notify the ETA. Therefore, the LCA cannot be used to obtain a work visa until the ETA confirms the labor dispute is over.
LCAs are a matter of public record, and employers must notify any employee bargaining representatives of every application submitted. If there is no representative, the notification must be clearly posted for 10 days in two locations at the workplace. Copies of the applications must be provided to each nonimmigrant employee as well.
In addition to attesting to these labor conditions, employers will also have to declare the job titles, the wage rate, the length and location of each nonimmigrant employee. Also, they will have to provide the total number of nonimmigrant employees.
After online submission, the Department of Labor reviews the Labor Condition Application within seven working days. If there are errors, employers may correct and resubmit the form. If approved, nonimmigrant employees can move on to the next steps of their work visa process. For more on the process, and on how to obtain an H-1B/H-1B1/E-3 work visa, visit this Department of Labor Employment and Training Administration guide. Employers submit Form ETA 9035/9035E to apply.
What Are the Requirements of H-1B-dependent Employers and Employers that Willfully Violate the Attestations?
Here’s what the Department of Labor considers an H-1B-dependent business:
|What is an H-1B-dependent business?|
|Number of Full Time Equivalent Employees||Number of H-1B Nonimmigrant Employees|
|1 to 25||8 or more|
|26 to 50||13 or more|
|51 or more||15 percent or more of the workforce (U.S. and H-1B workers)|
Additional attestations and supporting documentation are required for H-1B-dependent employers and companies that the ETA has charged with “willful misrepresentation” on an LCA within the past five years.
Employers cannot displace a similar U.S. employee 90 days before or after filing for a nonimmigrant work visa.
Employers must be able to prove they’ve done their best to ensure that their nonimmigrant employees at the same worksite will not displace a similar U.S. employee 90 days before or after filing for a nonimmigrant work visa (e.g., staffing agency, contractor).
Recruitment and hiring.
Employers must first make the effort to meet industry standards to recruit similarly or better qualified U.S. worker before filing an LCA. Additionally, they must also offer the job to a U.S. worker first as well.
However, H-1B-dependent employers can exempt themselves from these extra attestations if all nonimmigrant employees have master’s degrees or will receive wages at a rate equal to at least $60,000 per year.