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 Online system. It used to be called iCERT system in the past, but now they use new system called Foreign Labor Application Gateway(FLA). The LCA form is also used by employers sponsoring other visa types as well such as “H1-B1 ” used by Chile & Singapore nationals and for “E-3″ used by Australians
What does the LCA contain ?
A Labor Condition Application (LCA) form has all the key information regarding the offered job, wage details, location, etc. that is offered to the foreign worker. It has all the below details :
- The job title of position offered
- Standard Occupation Classification Code, called as SOC Code
- 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 called as “Place of Employment”
- Is it new or continuing employment
- Prevailing Wage for the same position in that area.
- Employer’s & Attorney contact information.
- Is the employer H1B Dependent or not.
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. Usually you can find them on the company website.
What is employer declaring 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. To address such unfair treatment, US Dept of Labor had introduced LCA, which protects the employee’s fundamental rights at work location in terms of wages, working conditions and policies. In LCA form, employers declare/attest under penalty of perjury that they will abide by the labor laws and be compliant in the below four areas:
- Pay Prevailing Wage : That the foreign worker will be paid equally, similar to 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
- Working Conditions, Hours : 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.
- Strike or Lockout Info : 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.
- Post LCA Notice, Share to Union, Employees : The employer will provide copy of the LCA to the employed workers in that location and will also be provided to union, if any. Also, post the LCA in two 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.
LCA Processing time ? FEIN Time ?
If the employer, who is sponsoring H1B has done H1B sponsorship or LCAs before using FLAG 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 first few weeks of April , the system can be quite loaded and there is a risk of system outage, you need to factor that time as well. The reason is H1B Registration Process ends by March 31st and employers will start filing LCAs in the system in the first few weeks of April. Overall, it is recommended that the employer starts the process earlier in March or even before, if they plan to file H1B in April.
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 “F. Employment and Prevailing wage Information”, that says “Wage Rate Paid to Nonimmigrant Worker“. See below on where it in LCA and how it looks.
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
Client Information – Outsourcing Companies LCAs
Starting from October 2018, the LCA form also added a new mandatory requirement that if any employee is working at a client site as a contractor, then they need to mention the Client Name and full address as well. It looks like below in the LCA as in screenshot. In fact, this has cause a lot of stir in the market. You can read Top 20 Clients for Major Outsourcing MNCs
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.
Sample H1B LCA
Below is a sample H1B LCA
Did I miss out anything? How was your LCA Filing experience ? If you are planning for H1B Visa 2021 Season , plan ahead…
Any other things to consider ?
References : US DOL Website – LCA Instructions