Labor Condition Applicaiton LCA for H1B Visa and Processing times Salary Information

What is H1B LCA ? Why file it ? Salary, Processing times – DOL

In Apply H1B Visa by Kumar37 Comments

Couple of years ago, a good friend of mine, who studied in an Ivy League school, after few intense interviews, got an offer from a new startup in the last week of March.  Up until then, the startup had never sponsored any H1B visas for their employees and were very new to the process. When the employer approached an immigration attorney, they were told that they need to file LCA and may not be able to make it on time for the H1B filing for that year. My friend got a great offer, but could not capitalize as he was not aware of the LCA process timeline. We have many prospective professionals, who end up in similar boat. We will try to outline in layman’s language on “what LCA is all about and why it is required”, including processing times and many other common questions around LCAs.

What is LCA for H1B Visa?

LCA stands for Labor Condition Application.  LCA is a mandatory document that the H1B Sponsor / employer needs to file with US Department of Labor before they file the H1B petition with USCIS for any non-immigrant worker.  The H1B Sponsors need to file ETA Form 9035 / 9035E electronically with US DOL using their iCERT Portal System (basically DOL’s online system).  Besides “H1B”, the same LCA form is also used by employers for filing as required for other visa types like “H­ 1B1 Chile”, “H­1B1 Singapore” or “E­3 Australian.”

What does the LCA contain?   

A Labor Condition Application (LCA) form has important information about the offered job position for the foreign worker as listed below.

  • The job title of position offered ( including SOC code, title )
  • Duration of the job position offered ( upto 3 years )
  • If the position offered is either full time or not.
  • Total number of job positions the LCA is applied for ( can be one or any number)
  • Rate of Pay / Salary offered for the position
  • Location of the job position
  • Prevailing Wage for the same position in that area.
  • Employer’s & Attorney contact information.

As part of the public disclosure norms, it also includes details on where the filed LCA will be posted or displayed for public viewing, either at place of employment or at main location of the business/employer.

Why is LCA Important ? What is employer declaring/ attesting by filing LCA with DOL  ?

As foreign workers are new to America, there is every possibility for certain employers to take advantage and treat them unfairly in terms of wage, benefits, etc. In this context, US Dept of Labor had mandated LCA and it is very important for a foreign worker as it protects their fundamental rights at work location in terms of wages, working conditions and policies.  In LCA form, employers declare/attest that they will abide by the labor laws and be compliant in the below four areas:

  1. That the foreign worker will be paid equally with their other employees in that location or the prevailing wage rate in a particular location, whichever is higher for that position, and the foreign worker need to be paid during non-productive time. Also, provide same benefits as regular US workers. Read How to determine LCA Minimum Wage for a Job
  2. That the employer will provide same working conditions as US workers and employing foreign worker will not adversely impact the working conditions at the location, especially hours, vacation time, shifts, etc.
  3. That there is no strike or lockout or any other work stoppage for the named occupation in the place of employment during filing of LCA.
  4. The employer will provide the LCA to the employed workers in that location and will be provided to union, if any. Also, post the LCA in conspicuous locations where H1B worker will be employed or distribute through electronic notification for the employees in that location.

You can check out employers posting the LCA related data on their websites for disclosure. For instance, check out Accenture LCAs Information. Also, by right as a foreign worker going through the LCA process, you are entitled to receive your LCA from your employer, if they are planning for your H1B petition filing.  You can request for it, if you did not get it.

How long is the LCA Processing time ?  How about FEIN Time ? Any other time ?

If the employer, who is sponsoring H1B has done H1B sponsorship or LCAs before using iCERT system, the typical processing time to certify LCA is about 7 working days.

If your employer has never done LCA filing before, the DOL’s LCA filing system may not recognize their Federal Employer Identification Number (FEIN).  So, they need to first verify their FEIN with Dept of Labor ( DOL) and it can take 5 working days. As mentioned in the beginning, this was one of the challenges my friend ran into and many can run into with start-ups.

Also, in the last few weeks of March, the system can be quite loaded and there is a risk of system outage, you need to factor that time as well.  Overall, it is recommended that the employer starts the process by first week of March or latest by second week of March to avoid delays.

H1B Sponsors Databases : As part of public disclosure Dept of Labor publishes the LCA data and all the numbers you see in H1B Sponsors Databases like ours on the web are nothing but the LCAs related data related to an employer. They are not really the actual H1B approvals or denial stats by USCIS, but rather LCA approvals and denials by DOL. You can check out the entire H1B Disclosure data at DOL Website – Foreign Labor Cert Data  

Overall,  filing an LCA with US Dept of Labor is a pre-requisite for filing H1B Visa petition with USCIS. You need to include a copy of certified LCA along with your H1B application package sent to USCIS. It is critical for any prospective US work visa seeker to plan and factor in required time to file LCA as part of H1B process.

Did I miss out anything?  How was your LCA Filing experience for H1B Visa 2018 Season ?

Any other things to consider ?

ReferencesUS DOL Website  – LCA Instructions 

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Comments ( 37 )

  1. Ramesh

    I am in India. I got H1 last year. My company is planning to send to different location(XX) and different client(YY)(LCA is different city(AA) and different client(BB)).

    My company wants to change LCA, but it will take 3-6 months to change LCA now(no premium).

    But I need to go ASAP. Client will not wait for 3 months.

    Is there any solution?

    1. administrator
      Saurabh

      Ramesh,

      The LCA can be updated in 1-2 weeks. Its H-1 amendment that would take time. You should be travel to US using current petition and amendment receipt. Talk to your attorney about it.

  2. Praneeth

    Hello!

    Does anybody know if a PAF (Public Access File) needs to be filed for every single candidate that is in the LCA (Labor Conditions Agreement)?

    For example, an employer files an LCA for 10 candidates for the role of business analyst. Of those 10 candidates, 5 get approved for an H1B. Would a PAF need to be filed for all 10 candidates on the LCA or just for the 5 for which H1Bs were approved?

    Thank you!

  3. Zeno

    my employer filed an LCA for me last year and I didn’t get selected in h1b lottery, does the same employer need to file LCA again this year if there’s no any job description/salary change?

    Thanks!

    1. Kaps

      Hi,

      I think that’s possible. My case was not picked up in last year’s H1-B lottery, and my attorney did not provide me with a new LCA this year. When I asked him if I will get a new LCA this year, he mentioned they plan to use the same old LCA which was approved for last year’s lottery as the job description did not change.

  4. Increase in wage

    I got selected in the H1B lottery for 2016. I have still yet to go for my visa stamping. My LCA was filed for $100,000 during January 2016. Now I have got an additional 12 months of experience so wanted the company to increase my salary.

    My question is can the company increase my wage before the visa stamping with the current LCA form. i.e. is it possible to ask the company for a new offer letter with better salary with the current LCA form or the company needs to file a new LCA form with the current wage?

    1. Anki

      LCA shows your salary to USCIS, and that is the minimum they are going to pay to you to be in good state with USCIS. Your company can pay you more than what is shown in LCA without any problem. It is usual case.

  5. PAYAL

    I did my H1B visa process through one of consultancy by paying cost of it. Additionally, I have to pay stamping, travelling and initial accommodation cost. The consultant will start paying me when I am chargeable after one or 2 months of arrival in US.

    At the other end, my current employer is ready to tranfer my H1b and will pay entire cost of tranfer, travel of my family, initual accommodation of 15days everything as its a MNC firm.

    I have signed on LCA offer letter of the consultancy where it state that employee has to pay 20000$ if he will not join us on visa approval.

    Could u pls help me out from this. Whether should I breach the term and join my current employer in US.

    1. administrator
      Saurabh

      Payal,

      The employer will have 0 financial loss if you don’t join them. You have paid the money all along. In addition, they are on the wrong side of law as they were supposed to pay for the petition fees.

      IMO, you can join the current employer and once their petition is approved, travel to US to work for them.

  6. Akash

    What do I need to do when wrong LCA was filed by employer during H1B Transfer?

    I am on H1B in US. I moved from company A to B and my H1B was transferred to Company B to work on a Employer-Client(EC) model.

    As per my offer letter, my work location is XXXX(Client location). But the Company B has filed LCA for location YYYY(Employer location) which is 200 miles away from XXXX. That H1B was approved. It has been 10 months since I joined and just found that my LCA has been filed for the wrong location where I am still working in Client location XXXX.

    Now, I asked my employer to file an amendment right away and I will work from location YYYY(Employer location) until that amendment is approved. I have requested my employer to reimburse all my travel and lodging allowance as it was the employer’s fault of filing the LCA wrongly. But they are denying me to provide that and asking me to spend out of my pocket as it is my visa which is impacted and nothing on them. I am under immense stress and cannot concentrate on anything. Please help!

    1. administrator
      Saurabh

      Akash,

      Well it impacts both employee and employer. The employer is on the hook to ensure that correct location is mentioned in the LCA and not the employee.

      Ask them to file amendment ASAP and then start working from current location as soon as you receive the receipt notice. If the client is ok to work remotely, then work from YYYY until amendment receipt is received.

  7. Amendment

    Amendment
    Hi,

    Received LCA certified and filed petition to USCIS for amendment in regular process.

    How long will it take to get I-129 and receipt number?

    Thanks!

  8. Kumaran

    Is it possible to apply for LCA, after the lottery results? Or is there any defined timeline (other than in early march due to system overload issues)?

    1. administrator
      Saurabh

      Kumaran,

      LCA can be applied anytime. However, if is to be used for a cap-subject petition, then that cannot be done as cap is over for this fiscal year.

  9. Siva Motamarri

    One question on LCA, does an employer need to share offer letter before starting LCA process? I would like to know if employ signed offer letter is mandatory to file LCA.

    1. administrator
      Saurabh

      Siva Motamarri,

      That is not a requirement. LCA doesn’t contain employee information. So it is filed as a generic and the corresponding I-129 petition would contain all the employee details.

      1. ExTCS

        Hi my employer did no share any LCA with me, neither did I sign. if that is the case can the employer still file my petition for H1b cap.

  10. Kathy

    Now that we know they closed the petitions time, can someone explain the deadline?
    – When will the lottery take place?
    – How many days after a lottery we will know how many petitions were received?
    – When will you know if your case was selected in lottery? (both Premium and Non Premium)
    – When will you know if it was rejected? (both Premium and Non Premium)

    I am not asking for exact date guys. Just trying to understand the process moving on.

    1. administrator
      Saurabh

      nazmul,

      It would be an issue then. I-129 has to be filed for the location mentioned in LCA. If the LCA has incorrect location, then H-1 petition may not get approved as your documents will point to a different location.

      1. nazmul

        My employer filed LCA as city: Middletown, county: Middlesex, State: New Jersey, Postal Code 07748. But county for “Middletown” is “Monmouth” . Is it going to be an issue?

  11. babu

    Hi,
    I think tomorrow 7th April 2016 is last day to receive the applications. Can you post, if anyone is having idea like – How many total H-1B applications reached USCIS this year.

    1. administrator
      Kumar

      babu,
      We do not have any official updates from USCIS or even unofficial from others. Will keep everyone posted as we have updates.

      1. babu

        Thanks Kumar for your response. Going forward, can you post or update everything here. Like H-1B App count received this year, when USCIS will conduct the lottery process and etc.
        Then it would be helpful for us come to know and also will clarify our doubts…

  12. deadmau5

    Seems like everyone around is doing duplicate filings this year. Some companies have started doing business around this loophole. Depressing.

    1. Jeff

      Oh that was my main question and some answers I received here confirmed my worst nightmares.
      Who says a small Russian or Chines company (just an example) wont file 2 or 3 petitions on the same person hoping 1 will get selected in the lottery? Worst case scenario both get selected and USCIS catches the fraud. They just close this company and open a new one …
      But what if 1 of them wins and you get a visa?
      Think about it. USCIS does not check EVERY FILE before doing a lottery. If this year there are 200.000 initial petitions, who says some are not duplicated and get into the lottery? This means someone has the chances twice or three times higher to win the lottery!

  13. Curious

    Hi,

    For example company X has filled 100 LCA’s for the financial year 2016 (this info which i can get from the database ), Does that mean it can process H1B for only 100 empolyees . I am confused as you have mentioned in article “Total number of job positions the LCA is applied for ( can be one or any number)” .

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