If you plan to work in US on H1B Visa, after you go through the H1B registration Lottery, you need to file Labor Condition Application(LCA) with US Department of Labor. An approved LCA is one of the first step towards getting your H1B work visa in US. LCA is critical for making sure you are paid fairly as a foreign worker and not taken advantage by the US employers. In this article, we will cover all aspect of H1B LCA, including processing times and many other common questions around LCAs.
What is H1B LCA ?
LCA stands for Labor Condition Application. LCA is a mandatory document that the H1B Sponsor / employer needs to file with US Department of Labor(DOL) 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 called “Foreign Labor Certification Gateway (FLAG)”. Also, the same H1B LCA form ETA 9035E is 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 H1B LCA contain ?
A H1B 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.
- Public disclosure – where LCA will be posted for viewing by public.
We have included a sample H1B LCA copy at the end of the article for your review to see how this information is presented.
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.
- Official Regulation H1B LCA : If you want additional details on the above rules and more info, you can read official regulation on LCA at INA § 212(n)-(p) on US DOL website
As per worker rights, 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. You can read H1B Rights
H1B LCA Processing time ? FEIN Time ?
US Department labor says that they will review and process H1B LCAs within 7 working days. This short processing time of LCA is due to their new FLAG system for online submission of LCAs. See below screenshot from their official website.
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. If you work for a startup and they do not have FEIN then you need to factor in additional time.
Also, if you are filing H1B visa under new quota cap, during April first week, the system can be quite loaded and there is a risk of system outage. You may 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
iCERT System vs FLAG for Filing H1B LCA
Previous US Department of Labor used a system called Immigration Certification system that was called iCERT for accepting H1B LCAs online. They have migrated from iCERT and use a new online system called Foreign Labor Application Gateway(FLAG) for accepting H1B LCAs online.
Check H1B LCA Online ?
In the past DOL had a search option to check your LCA. But since FLAG system went live, they removed that option. But, as part of public disclosure Dept of Labor publishes the LCA data for public review in the form of Excel files. You can download and review them. But, they are not really in consumable format as the files are really large with hundreds of thousands of rows. There are websites that represent data in consumable format and search for LCA.
- Check H1B LCA Online : You can search and check your H1B LCA on H1BGrader.com website.
- Official H1B LCA Data Excels : Check US Dept of Labor Performance 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 Copy
Below is a sample copy of H1B LCA filed with US Department of Labor
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