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 for H1B Petition ? 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:
- 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
- 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.
- 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.
- 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 Minimum Wage or Prevailing wage in LCA :
One of the most important aspects of an LCA is the prevailing wage for the position being offered. The wage information that is offered for the position is also present in the LCA under the section “G. Employment and Prevailing wage Information”. It is important to have the right wage level selected to avoid issues in the future. USCIS has been very particular about this and denied many petitions for not selecting the right wage as many selected ‘Level 1 wage’. Read article How to find the Minimum or Prevailing Wage in an Area for H1B LCA
H1B Visa 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 or on the web like H1B Visa Grader 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 ? If you are planning for H1B Visa 2020 Season , plan ahead…
Any other things to consider ?
References : US DOL Website – LCA Instructions